Safety Plus Power Ltd, New Delhi V. ACIT, Circle-22(1), New Delhi

ITA 7412/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3546 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SALIL KAPPOR MS ANANYA KAPOOR
• Keywords: Unexplained cash credit; Application of stay
• Section: 143(3); 143(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER ITA NO.7412/DEL/2018 STAY APPLICATION NO.27/DEL/2019 ASSESSMENT YEAR: 2009-10 M/S SAFETY PLUS POWER LTD., A-52, 2 ND FLOOR, NIRMANVIHAR, NEW DELHI. PAN: AABCE8687P VS ASSTT.COMMR. OF INCOME-TAX CIRCLE-22(1) ,NEW DELHI. APPELLANT RESPONDENT ASSESSEE BY SHRI SALIL KAPPOR, ADVOCATE MS ANANYA KAPOOR, ADVOCATE REVENUE BY SHRI N.K. BANSAL, SR. DR ORDER PER K. NARASIMHA CHARY, JM CHALLENGING THE ORDER DATED 19.9.2018 IN APPEAL NO.86/17-18 FOR THE ASSESSMENT YEAR 2009-10 BY THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS)-28, NEW DELHI, {HEREINAFTER REFERRED TO AS THE CIT(A)}, ASSESSEE PREFERRED THIS APPEAL AND ALSO BY STAY APPLICATION NO.27/DEL/2019, ASSESSEE REQUEST FOR STAY OF DEMAND. 2. SINCE THE QUESTION INVOLVED IN BOTH THE MATTERS IS ONE AND THE SAME, WE THOUGHT IT FIT TO HEAR THIS MATTER TOGETHER AND DISPOSE THEM DATE OF HEARING 18.02.2019 DATE OF PRONOUNCEMENT 21.02.2019 2 OFF BY THIS COMMON ORDER. 3. ASSESSEE IS A COMPANY. THEY HAVE FILED THEIR RETURN OF INCOME FOR THE AY 2009-10 ON 30.9.2009 DECLARING A TOTAL INCOME OF RS.24,47,260/- AND IT WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (THE ACT) ON 5.3.2011. SUBSEQUENTLY, NOTICE U/S 148 OF THE ACT WAS ISSUED ON 31.3.2016 AND THE NOTICE U/S 143(2) WAS ISSUED ON 18.11.2016. ASSESSMENT U/S 143 READ WITH SECTION 148 WAS COMPLETED BY ORDER DATED 30.12.2016 BY MAKING AN ADDITION OF RS.3,16,25,000/- U/S 68 OF THE ACT ON ACCOUNT OF SHARE APPLICATION MONEY. 4. AGGRIEVED BY THE SAME, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). IT COULD BE SEEN FROM THE ORDER OF THE LEARNED CIT(A) THAT DURING THE APPELLATE PROCEEDINGS THE ASSESSEE WAS ISSUED NOTICE DATED 19.7.2017, FIXING THE DATE OF HEARING ON 26.7.2017 AT 12.30PM. ON THIS DATE, AN APPLICATION SEEKING ADJOURNMENT WAS FILED WHICH WAS GRANTED AND NEXT DATE OF HEARING WAS FIXED ON 16.8.2017. ON THIS DATE AGAIN, ADJOURNMENT WAS SOUGHT AND THE NEXT DATE OF HEARING WAS FIXED ON 12.9.2017. HOWEVER, ON THIS DATE NEITHER ANYBODY ATTENDED NOR ANY APPLICATION SEEKING ADJOURNMENT WAS FILED. SINCE THE HEARINGS REMAINED UNATTENDED ON THIS DATE, A NOTICE DATED 10.11.2017 FIXING THE DATE OF HEARING ON 11.12.2017 WAS ISSUED BUT THIS NOTICE AGAIN REMAINS UNATTENDED. THE FINAL NOTICE DATED 14.8.2018 FIXING THE DATE OF HEARING ON 22.8.2018 WAS AGAIN NOT COMPLIED WITH. NEITHER ANYBODY APPEARED ON THIS DATE NOR WAS ANY APPLICATION SEEKING ADJOURNMENT FILED. THUS, DESPITE OF GIVING SEVERAL OPPORTUNITIES TO ASSESSEE, THE APPELLATE PROCEEDINGS REMAINED UNATTENDED. ALL THESE NOTICES WERE SENT ON THE ADDRESS AS PER FORM NO.35 A-52, SECOND FLOOR,NIRMANVIHAR, DELHI- 110092. THERE IS NO OTHER ADDRESS AVAILABLE ON RECORD NOR ANY INFORMATION FROM THE ASSESSEE REGARDING CHANGE OF ADDRESS. IN THE 3 CIRCUMSTANCES, LEARNED CIT(A) RECORDED THAT IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF B.N. BHATTACHARJEE &ANR., 118 ITR 461, APPEAL; DOES NOT MEAN ONLY FILING OF MEMO OF APPEAL BUT ALSO PURSUING IT EFFECTIVELY AND BECAUSE THE APPELLANT DOES NOT SHOW ANY INTEREST IN DISPOSAL OF THE MATTER ON MERITS, BY FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S CHEMIPOL VS UNION OF INDIA IN EXCISE APPEAL NO.62 OF 2009, LEARNED CIT(A) DISMISSED THE APPEAL FOR NON PROSECUTION AND CONFIRMED THE ADDITION MADE BY THE AO. 5. IT IS THE SUBMISSION ON BEHALF OF THE ASSESSEE BY THE LEARNED AR THAT THE ASSESSEE ACCORDED ITS FULL COOPERATION AND COMPLIED ALL THE DIRECTIONS QUA THE NOTICE/PROCEDURE REQUIRED TO COMPLETE THE ASSESSMENT BUT THE LEARNED AO RAISED CERTAIN QUERIES ON 26.12.2016 AND 27.12.2016 AND IT WAS PRACTICALLY NOT POSSIBLE FOR THE ASSESSEE TO PRODUCE THE MATERIAL REQUIRED BY THE LEARNED AO WITHIN SUCH A SHORT PERIOD OF TIME AS THE CONCERNED PARTIES WERE NOT AVAILABLE TO PRODUCE THE SAME BUT BRUSHING ASIDE THE SUBMISSIONS MADE BY THE ASSESSEE, FOR GRANT OF SUFFICIENT OPPORTUNITY, LEARNED AO PASSED THE ASSESSMENT ORDER U/S 143(3) READ WITH SECTION 148 ON 30.12.2016 I.E. WELL WITHIN TWO DAYS AFTER REQUIRING THE MATERIAL . LEARNED AR SUBMITTED THAT THERE IS WANT OF OPPORTUNITY IN THIS MATTER AND THEY ARE NOT IN RECEIPT OF THE NOTICE ISSUED BY THE LEARNED CIT(A) AND THAT IS THE REASON WHY THEY COULD NOT PURSUE THEIR REMEDIES EFFECTIVELY. LEARNED AR FURTHER SUBMITTED THAT THE MATERIAL COMPRISED OF ABOUT 590 PAGES WAS AVAILABLE BEFORE THE AUTHORITIES BELOW BUT WITHOUT REFERRING TO ANY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE, THE AUTHORITIES SUSTAINED THE ADDITIONS. 6. PER CONTRA, IT IS THE ARGUMENT OF THE LEARNED DR THAT THE ORDER OF 4 THE LEARNED CIT(A) IS SELF EXPLANATORY AND ALL THE NOTICES ISSUED TO THE ADDRESS FURNISHED BY THE ASSESSEE IN THEIR FORM 35 WERE NOT RESPONDED TO AND IN THOSE CIRCUMSTANCES, NO OPTION WAS AVAILABLE TO THE FIRST APPELLATE AUTHORITY BUT TO PROCEED EX PARTE. LEARNED DR, THEREFORE, JUSTIFIED THE ORDERS OF THE AUTHORITIES BELOW AND PRAYED TO DISMISS THE APPEAL. 7. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT OF THE SUBMISSIONS MADE ON EITHER SIDE. IN THE PAPER BOOK SUBMITTED ON BEHALF OF THE ASSESSEE, IT IS STATED THAT PAGE NOS.1 TO 589 WERE VERY MUCH AVAILABLE BEFORE THE AUTHORITIES BELOW. HOWEVER, IT COULD BE SEEN FROM THE ASSESSMENT ORDER THAT ON 28.12.2016, THE ASSESSEE WAS ASKED TO EXPLAIN WHY THE MONEY RECEIVED AS SHARE APPLICATION MONEY SHOULD NOT BE TREATED AS UNEXPLAINED CREDIT AND ADDED BACK TO THE RETURNED INCOME OF THE ASSESSEE BECAUSE OF THE FAILURE OF THE ASSESSEE TO SUBMIT THE ITRS, BANK STATEMENTS OF THE SHARE APPLICANTS ETC. VIDE ORDER SHEET DATED 26.12.2016 AND 27.12.2016. ASSESSEES CONTENTION SEEMS TO BE REASONABLE THAT WHEN THE MATERIAL WAS ASKED ON 26 TH AND 27 TH DECEMBER, 2016 AND THE SHOW CAUSE NOTICE WAS ISSUED ON 28.12.2016 AND WITHOUT CONSIDERING THE REPLY DATED 29.12.2016 FAVOURABLY, THE AO PASSED THE ORDER ON THE VERY NEXT DAY I.E. ON 30.12.2016. THIS FACT IS EVIDENT FROM THE RECORD. 8. LEARNED CIT(A) HAD AN OPPORTUNITY TO DEAL WITH THIS ASPECT EVEN WITHOUT THE PRESENCE OF THE ASSESSEE WHEN THE MATERIAL IS AVAILABLE ON RECORD. WHEN THE ASSESSEE DOES NOT COOPERATE WITH THE DISPOSAL OF THE APPEAL ON MERITS BY ENTERING APPEARANCE, IT IS ALWAYS OPEN FOR THE LEARNED CIT(A) TO PROCEED EX PARTE. HOWEVER, THE EX PARTE ORDER NEED NOT ALWAYS BE DISMISSAL IN LIMINE AND SUCH AN ORDER COULD AS WELL ADVERT TO THE MERITS OF THE CASE BASING ON THE PAPERS AVAILABLE ON 5 RECORD. IT IS, THEREFORE, CLEAR THAT THE FIRST APPELLATE AUTHORITY HAD NOT CONSIDERED THE MATERIAL AVAILABLE ON RECORD. WE, THEREFORE, FIND AN AMOUNT OF FORCE IN THIS SUBMISSION OF THE ASSESSEE THAT THERE WAS NO CONSIDERATION OF THE CASE ON MERITS. 9. IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT IT IS A FIT CASE TO SET ASIDE THE IMPUGNED ORDER AND TO REMIT THE MATTER BACK TO THE FILE OF THE LEARNED CIT(A) FOR DISPOSAL ON MERITS AFTER AFFORDING AN OPPORTUNITY TO THE ASSESSE TO PUT FORTH ALL THEIR CONTENTIONS AND TO SUPPORT IT IF SO CHOSE, BY MATERIAL, IF ANY.THE IMPUGNED ORDER IS, THEREFORE, SET ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11. IN VIEW OF OUR ABOVE FINDING, STAY APPLICATION FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. THE SAME IS DISMISSED ACCORDINGLY, 12. IN THE RESULT, WHEREAS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES, THE STAY APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2019. SD/- SD/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST FEBRUARY, 2019. VJ 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DRAFT DICTATED ON 18.02.2019 DRAFT PLACED BEFORE AUTHOR 1 9.02.2019 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON DATE OF UPLOADING ORDER ON THE WEBSITE FILE SENT TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.