Pitambar Securities Pvt. Ltd., Uttar Pradesh V. DCIT, New Delhi

ITA 6717/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5045 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 21-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: ASHISH CHOUDHARI
• Keywords: Opportunity of being heard; Additional evidence; Assessment record
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : DELHI BENCHES : SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA. NO.6717/DEL./2015 ASSESSMENT YEAR 2009-2010 PITAMBRA SECURITIES P. LTD., C.-450, GAUTAM BUDH NAGAR, UTTAR PRADESH 201301. PANAACCP6214A VS. THE DCIT, CENTRAL CIRCLE-23 NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI ASHISH CHOUDHARI, C.A. FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 16.08.2017 DATE OF PRONOUNCEMENT : 23 .08.2017 THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A)-30, NEW DELHI, DATED 28 TH SEPTEMBER, 2015 FOR A.Y. 2009-2010, CHALLENGING THE ADDITION OF RS.21,7 0,075 AS UNDISCLOSED INCOME UNDER SECTION 68 OF THE I.T. ACT , 1961. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE IS A COMPANY FILED RETURN OF INCOME DECLARING LOSS OF RS .80,330. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE DEALT WITH SHARES ETC. ASSESSEE WAS ASKED TO PRODUCE COPY OF THE CASH BOOK AND BANK BOOK AND EXPLAIN THE SOURCE OF CREDIT ENTRIES THEREIN ORDER 2 ITA.NO.6717/DEL./2015 PITAMBRA SECURITIES P. LTD., NOIDA, UTTAR PRADESH. PROVING IDENTITY AND CREDITWORTHINESS OF THE CREDIT ORS AS WELL AS GENUINENESS OF THE TRANSACTION IN RESPECT OF ALL TH E CREDIT ENTRIES IN ITS ALL BANK ACCOUNTS UNDER SECTION 68 OF THE I. T. ACT BY PROVIDING CONFIRMATION COPY OF ACCOUNTS, PAN, FULL ADDRESS, RETURN OF INCOME AND BANK STATEMENT OF THE CREDITOR . HOWEVER, THE ASSESSEE HAS NOT GIVEN ANY EXPLANATION BEFORE A .O. THEREFORE, ADDITION OF RS.21,70,075 WAS MADE UNDER SECTION 68 OF THE I.T. ACT IN RESPECT OF 11 PERSONS/CREDITORS WHOSE DETAIL S ARE NOTED IN PARA 2.1 OF THE ASSESSMENT ORDER. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(A) AND IT WAS SUBMITTED THAT ASSESSEE FURNISHED ALL TH E CONFIRMATIONS BEFORE A.O. ALONG WITH THEIR NAME, AD DRESS AND PAN. IT WAS EXPLAINED THAT ASSESSEE IS ENGAGED IN S ALE AND PURCHASE OF SHARES AND MONEY LENDING BUSINESS. THE INCOME EARNED, DECLARED AND ACCEPTED BY THE A.O. RELATES T O PROFIT ON SALE OF SHARES, INTEREST INCOME ON LOAN ETC., THE T RANSACTIONS UNDER DISPUTE ARE RELATING TO REPAYMENT OF LOANS AN D PURCHASE AND SALE OF SHARES. HENCE, THESE TRANSACTIONS ARE T HE BUSINESS TRANSACTIONS OF ASSESSEE AND RESULT OF THE SAME IS ACCEPTED BY THE A.O. BY ACCEPTING THE RETURNED INCOME DECLARED BY ASSESSEE WHICH INCLUDES THESE TRANSACTIONS AS WELL. THE ASSE SSEE WAS 3 ITA.NO.6717/DEL./2015 PITAMBRA SECURITIES P. LTD., NOIDA, UTTAR PRADESH. DOING SAME BUSINESS IN EARLIER YEAR WHICH HAVE BEEN ACCEPTED BY THE A.O. IT WAS SUBMITTED THAT THE FINDING OF THE A .O. IS FACTUALLY INCORRECT. THE SUBMISSIONS OF THE ASSESSEE WERE FOR WARDED TO THE A.O. FOR FILING OF REMAND REPORT IN WHICH THE A.O. REITERATED THE FACTS STATED IN THE ASSESSMENT ORDER. IT WAS ALSO S UBMITTED THAT INFORMATION UNDER SECTION 133(6) WAS CALLED FOR FRO M ALL THE CREDITORS IN RESPONSE TO WHICH SOME OF THE CREDITOR S NAMELY RAJINDER, CHAMAN AND M/S. CHAKAMERI KHADYA BHANDAR HAS FURNISHED THE ABOVE DOCUMENTS AS CONFIRMATIONS IN R ESPECT OF THE CREDITS TO THE ASSESSEE. THE CASE OF THE ASSESSEE I S CONNECTED WITH THE ACCOMMODATION ENTRY PROVIDER SHRI S.K. JAI N ETC., ASSESSEE PRODUCED ADDITIONAL EVIDENCES WHICH MAY NO T BE ADMITTED AT THIS STAGE BECAUSE ASSESSEE FAILED TO F URNISH THE EVIDENCES AND DETAILS AT THE ASSESSMENT STAGE. THE ASSESSEE FILED REJOINDER IN WHICH HE HAS REITERATED THE FACTS STAT ED IN THE WRITTEN SUBMISSIONS BEFORE LD. CIT(A). THE LD. CIT( A) HOWEVER, DID NOT ACCEPT THE CONTENTION OF ASSESSEE AND NOTED THAT ALL ARE ADDITIONAL EVIDENCES UNDER RULE 46A WHICH COULD NOT BE ADMITTED AND ACCORDINGLY, CONFIRMED THE ADDITION. 4. AFTER CONSIDERING THE RIVAL CONTENTIONS AND MAT ERIAL ON RECORD, I AM OF THE VIEW THAT THE MATTER REQUIRES R ECONSIDERATION 4 ITA.NO.6717/DEL./2015 PITAMBRA SECURITIES P. LTD., NOIDA, UTTAR PRADESH. AT THE LEVEL OF THE LD. CIT(A). THE ASSESSEE HAS CL AIMED BEFORE LD. CIT(A) THAT THE TRANSACTION OF THESE CASH CREDITS P ERTAINS TO THE BUSINESS TRANSACTION WHICH IS THE MAIN BUSINESS ACT IVITY OF THE ASSESSEE. HOWEVER, NO FINDINGS HAVE BEEN GIVEN ON T HE SAME DESPITE THE FACT RETURN OF INCOME HAS BEEN ACCEPTED BY THE A.O. FURTHER, AS REGARDS NON-FURNISHING OF THE DOCUMENTS BEFORE A.O. THE DETAILS FURNISHED IN THE PAPER BOOK REVEAL THAT IN THE CASE OF ALLEGED CREDITOR SATISH GUPTA THERE WAS AN OPENING BALANCE OF RS.7,57,750 COMING UP FROM THE YEAR 2006 AND REPAYM ENT OF RS.7,60,075 ON 12.05.2008 AND IN THE CASES OF OTHER S THERE ARE TRANSACTIONS OF PURCHASE AND SALE OF SHARES. THEREF ORE, ASSESSEE MAY HAVE PRIMA FACIE CASE. THEREFORE, IT IS THE DUTY OF THE LD. CIT(A) BEFORE PASSING THE APPELLATE ORDER, REJECTIN G THE CLAIM OF ASSESSEE, SHOULD HAVE VERIFIED THE FACTS FROM THE R ECORD AND IN THE INTEREST OF JUSTICE COULD LOOK INTO THE DOCUMEN TS BEFORE HIM UNDER RULE 46A(4) OF I.T. RULES. HE SHOULD NOT HAVE MERELY GONE THROUGH THE REMAND REPORT FILED BY THE A.O. FURTHER , IN THE REMAND REPORT THE A.O. HAS MENTIONED THAT NOTICE UN DER SECTION 133(6) WERE ISSUED TO ALL THE CREDITORS OUT OF WHIC H SOME HAVE RESPONDED BEFORE A.O. AND THEY HAVE FURNISHED THESE DOCUMENTS BEFORE A.O. THEREFORE, THESE DOCUMENTS SHOULD HAVE BEEN VERIFIED 5 ITA.NO.6717/DEL./2015 PITAMBRA SECURITIES P. LTD., NOIDA, UTTAR PRADESH. FROM THE RECORD TO VERIFY THE MODUS OPERANDI OF BUSINESS ACTIVITIES OF THE ASSESSEE, WHETHER ASSESSEE IS ACT UALLY INVOLVED IN SALE AND PURCHASE OF SHARES AND RECEIVING AMOUNTS F ROM THE PARTIES. THEN, IN THAT SITUATION, IT MAY NOT BE A C ASE OF SIMPLICITOR CASH CREDIT RECEIVED BY THE ASSESSEE. THESE FACTS, THEREFORE, CLEARLY SHOW THAT THE MATTER REQUIRES RECONSIDERATI ON AT THE LEVEL OF THE LD. CIT(A). I, ACCORDINGLY, SET ASIDE THE OR DER OF THE LD. CIT(A) AND RESTORE THE APPEAL OF ASSESSEE TO HIS FI LE WITH A DIRECTION TO RE-DECIDE THE APPEAL OF ASSESSEE AFRES H, IN ACCORDANCE WITH LAW, BY GIVING REASONABLE, SUFFICIE NT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE A.O. THE LD. CIT(A) SHALL VERIFY THE FACTS FROM THE ASSESSMENT RECORD AND INF ORMATION SUPPLIED UNDER SECTION 133(6) OF THE I.T. ACT. THE ASSESSEE IS AT LIBERTY TO TAKE APPROPRIATE STEPS BEFORE LD. CIT(A) IN PRODUCTION OF DOCUMENTS AS PER LAW, IF SO ADVISED. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 23 RD AUGUST, 2017 VBP/- 6 ITA.NO.6717/DEL./2015 PITAMBRA SECURITIES P. LTD., NOIDA, UTTAR PRADESH. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI. 6. GUARD FILE. //BY ORDER// ASST. REGISTRAR : ITAT DELHI BEHCHES : DELHI.