DCIT, New Delhi V. M/s. Triveni Motors, New Delhi

ITA 6429/DEL/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1640 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 24-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VIJAY VARMA
• Keywords: Period of limitation; Additional evidence; Time period of passing order
• Section: 153A; 68

Judgement Text

ITA NO. 6429/DEL/2014 ASSESSMENT YEAR 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6429/DEL/2014 ASSESSMENT YEAR: 2008-09 DCIT VS TRIVENI MOTORS, CENTRAL CIRCLE-28, A-27, SF, NEW DELHI. MOHAN COOPERATIVE INDL. AREA, MATHURA ROAD, NEW DELHI-110044 (PAN: AACFT0256B) (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI VIJAY VARMA, CIT DR ASSESSEE BY: NONE DATE OF HEARING: 21.08.2018 DATE OF PRONOUNCEMENT : 19.11.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M.: THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A)-III , NEW DELHI FOR ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS OF APPEAL:- 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1,67,370/- (BEING 10% OF DIRECT EXPENSES) DESPIT E THE FACT THAT THE ASSESSEE FAILED TO SUBMIT ANY EVIDENCE EITHER BEFORE THE AO OR EVEN BEFORE THE CI T (A) TO SUBSTANTIATE THESE EXPENSES TO BE GENUINE. ITA NO. 6429/DEL/2014 ASSESSMENT YEAR 2008-09 2 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 56,44,331/- ((BEING 50% OF ADMINISTRATIVE AND SELLING CHARGES) DESPITE THE FACT THAT THE ASSESSEE FAILED TO SUBMIT ANY EVIDENCE EITHER BEFORE THE AO OR EVEN BEFORE THE CIT(A) TO SUBSTANTIATE THESE EXPENSES TO BE GENUINE. 3. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS. 6,00,01,000/- WITHOUT GIVING ANY OPPORTUNITY TO THE AO. 4. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN ACCEPTING THE ASSESSEES UNSUPPORTED CONTENTION ABOUT THE SOURCE OF DEPOSIT OF RS.6,00,01,000/- WITHOUT GRANTING OPPORTUNITY TO TH E ASSESSING OFFICER AND WITHOUT ANY EVIDENCE ABOUT TH E ALLEGED AND DEAL WITH GROUP CONCERN. 5. THE ORDER OF THE CIT (A) IS ERRONEOUS AND IS NO T TENABLE ON FACTS AND IN LAW. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING T HE COURSE OF THE HEARING OF THE APPEAL. 2.0 NONE WAS PRESENT ON BEHALF OF THE ASSESSEE/RESP ONDENT WHEN THE APPEAL WAS CALLED OUT FOR HEARING AND A PE RUSAL OF THE ORDER SHEET ENTRIES SHOWS THAT THIS APPEAL WAS FIXE D FOR THE FIRST TIME ON 31.10.2017. THEREAFTER, IT WAS FIXED FOR H EARING ON 1.2.2018 AND THEN AGAIN ON 9.5.2018. THE ASSESSEE/ RESPONDENT WAS NOT REPRESENTED ON ANY OF THE OCCASIONS AND EVE N TODAY NONE WAS PRESENT FOR THE ASSESSEE/RESPONDENT WHEN THE AP PEAL WAS CALLED OUT FOR HEARING AND NO ADJOURNMENT APPLICATI ON WAS ALSO ITA NO. 6429/DEL/2014 ASSESSMENT YEAR 2008-09 3 RECEIVED ON BEHALF OF THE ASSESSEE/RESPONDENT. ACC ORDINGLY, IT IS APPARENT THAT THE RESPONDENT/ASSESSEE DOES NOT WISH TO AVAIL OF THE OPPORTUNITY OF HEARING AND, THEREFORE, WE DEEM IT EXPEDIENT TO HEAR THE APPEAL EX PARTE QUA THE ASSESSEE/RESPONDENT. 3.0 AT THE OUTSET, THE LD. CIT DR DREW OUR ATTENTIO N TO THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE WAS A SEARCH OF CASE OF THE ASSESSEE ON 28.9.2010 AND THE NOTICE U/S 153A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFER RED TO AS 'THE ACT') WAS ISSUED ON 7.2.2012 BUT THE ASSESSEE CHOSE TO FILE THE RETURN ONLY ON 8.1.2013 I.E. JUST A FEW MONTHS BEFO RE THE EXPIRY OF THE LIMITATION PERIOD. IT WAS FURTHER SUBMITTED TH AT EVEN DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FI LE COMPLETE DETAILS OF EXPENDITURE SO AS TO ENABLE THE ASSESSIN G OFFICER TO EXAMINE THE ALLOWABILITY OF THE SAME. IT WAS ALSO SUBMITTED THAT SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNTS WAS ALS O NOT EXPLAINED LEADING TO ADDITION U/S 68 OF THE ACT. T HE LD. CIT DR ALSO REFERRED TO THE ORDER OF THE LD. CIT (A) AND S UBMITTED THAT THE LD. CIT (A) HAD ADMITTED ADDITIONAL EVIDENCE AND RE CONCILIATION FILED BY THE ASSESSEE GIVING THE ASSESSING OFFICER ANY OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCE. IT WAS PRAYED THAT SINCE THE MANDATE, AS LAID DOWN IN RULE 46A OF THE INCOME TAX RULES, ITA NO. 6429/DEL/2014 ASSESSMENT YEAR 2008-09 4 1962, WAS NOT FOLLOWED, THE DEPARTMENTS APPEAL DES ERVED TO BE ALLOWED. 4.0 HAVING HEARD THE LD. CIT DR AND AFTER HAVING PE RUSED THE MATERIAL ON RECORD AS WELL AS THE IMPUGNED ORDER, W E FIND THAT THE AVERMENT OF THE LD. CIT DR IS CORRECT INASMUCH AS THE LD. CIT (A) ADMITTED ADDITIONAL EVIDENCE BUT DID NOT CA LL FOR A REMAND REPORT FROM THE ASSESSING OFFICER NOR GAVE THE ASSE SSING OFFICER ANY OPPORTUNITY TO EXAMINE THE EVIDENCE WHICH WERE FURNISHED BEFORE HIM BY THE ASSESSEE FOR THE FIRST TIME. THI S SHOULD NOT HAVE BEEN DONE AND THE LD. CIT (A) SHOULD HAVE FOLL OWED THE PROVISIONS OF RULE 46A IN THIS REGARD. ACCORDINGLY , IN LIGHT OF THE FACTUAL MATRIX, WE RESTORE THE FILE TO THE OFFICE O F THE LD. CIT (A) WITH THE DIRECTION TO RE-ADJUDICATE THE GROUNDS RAI SED BEFORE HIM AFTER GIVING OPPORTUNITY TO THE ASSESSING OFFICER T O EXAMINE AND COMMENT ON THE ADDITIONAL EVIDENCES WHICH HAVE BEEN EARLIER ADMITTED BY HIM AND ALSO AFTER GIVING DUE OPPORTUNI TY TO THE ASSESSEE TO REBUT THE OBSERVATIONS OF THE AO. 5.0 IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 6429/DEL/2014 ASSESSMENT YEAR 2008-09 5 ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER, 2018. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDICIAL M EMBER DATED: 19TH NOVEMBER, 2018 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR