JOTINDRA STEEL & TUBES LTD., Delhi V. ACIT, CC- 3, NEW DELHI

ITA 7498/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7316 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.7498/DEL/2018 ASSESSMENT YEAR: 2015-16 JOTINDRA STEEL & TUBES LTD., 602, CHIRANJIV TOWER, NEHRU PLACE, NEW DELHI. V. ACIT, CENTRAL CIRCLE-3, NEW DELHI. TAN/PAN: AAACJ 1872C (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI VED JAIN, ADV. RESPONDENT BY: SHRI S.L. ANURAGI, SR.D.R. DATE OF HEARING: 16 04 2019 DATE OF PRONOUNCEMENT: 26 04 2019 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 08.10.2018 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-XXIII, NEW DEL HI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEARS 2015-16. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.25 LAC M ADE U/S.68 AND ALSO THE LD. CIT (A) HAS ERRED IN LAW AN D ON FACTS IN REJECTING THE APPLICATION UNDER RULE 46A FILING OF ADDITIONAL EVIDENCES. 2. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT ASSESSEE HAS RECEIVED ADVANCE OF RS.25 LACS FROM M/ S. SOLARIS INFRA PROJECTS PVT. LTD. FOR SUPPLY OF TOWER CRANES . LD. ASSESSING OFFICER HELD THAT ASSESSEE COULD NOT FILE ANY CONFIRMATION FROM THE SAID PARTY AND INSPECTOR WAS DEPUTED TO SERVE THE NOTICE U/S. 133(6) TO THE SAID PARTY. HOWEVER, THE I.T.A. NO.7498/DEL/2018 2 SAME COULD NOT BE SERVED. LD. ASSESSING OFFICER AFT ER CONFRONTING THIS ISSUE TO THE ASSESSEE HAS AFFIRMED THE SAID ADDITION U/S.68. THE ASSESSEES CONTENTION BEFORE T HE ASSESSING OFFICER WAS THAT ASSESSEE HAS TAKEN THE O RDER OF 3 TOWER CRANES FOR AN AMOUNT OF RS.3 CRORES FOR WHICH IT HAS RECEIVED ADVANCE OF RS.25 LACS FROM M/S. SOLARIS IN FRA PROJECTS PVT. LTD. THE SAID PARTY FAILED TO PAY THE COMMITTED MONEY TO THE ASSESSEE AND HAS FAILED TO RESPOND EVE N TO THE ASSESSEE. 3. BEFORE THE LD. CIT (A), THE ASSESSEE HAD FILED A DDITIONAL EVIDENCES GIVING DETAILED REASON AS TO WHY SUCH EVI DENCES COULD NOT BE FILED BEFORE THE AO. IT WAS FURTHER SU BMITTED THAT ASSESSEE HAS ALREADY FILED AN FIR AGAINST THE SAID COMPANY AND THERE WAS A COMPLAINT IN THE ECONOMIC OFFENCE W ING, NEW DELHI AGAINST THE SAID PARTY. CORRECT ADDRESS O F THE SAID PARTY WAS ALSO GIVEN ALONG WITH DOCUMENTS. THE LD. CIT (A) HAS REJECTED THE ASSESSEES ADDITIONAL EVIDENCES AN D HAS UPHELD THE ORDER OF THE ASSESSING OFFICER ON THE GR OUND THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN OF PROOF, IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE L ENDER. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND THE FINDINGS GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL RE FERRED TO BEFORE ME, I FIND THAT ASSESSEE HAS TAKEN AN ORDER FOR THREE TOWER CRANES FOR VALUE OF RS.3 CRORE FOR WHICH IT H AS RAISED PURCHASED ORDER. IN LIEU OF SUCH PURCHASE OF ORDER, THE ASSESSEE HAS RECEIVED ADVANCE OF RS.25 LAC, THE AMO UNT WAS RECEIVED FROM M/S. SOLARIS INFRA PROJECT PVT. LTD. IN ASSESSEES BANK ACCOUNT THROUGH RTGS ON 8 TH MAY, 2014 AND THE BANK I.T.A. NO.7498/DEL/2018 3 STATEMENT WAS ALSO FILED BEFORE THE ASSESSING OFFIC ER. THE SAID AMOUNT IS STILL OUTSTANDING IN THE ASSESSEES BOOKS OF ACCOUNT AND SAME HAS NOT BEEN PAID BACK. IN SUPPORT, COPY O F LEDGER ACCOUNT WAS ALSO FILED AND IT WAS ALSO POINT OUT TH AT THE SAID PARTY HAS NEVER CLAIMED THE AMOUNT PAID TO THE ASSE SSEE. THE ASSESSEE COMPANY IS ENGAGED IN IMPORT OF TOWER CRAN ES WHICH ARE GIVEN ON RENT AND IN SUPPORT ONE OF THE I MPORT BILLS WERE ALSO FILED. THE ASSESSEE BEFORE THE LD. CIT (A ) HAS EXPLAINED THE REASON IN ITS PETITION UNDER RULE 46A FOR ADMISSION OF ADDITIONAL EVIDENCES WHICH HAS BEEN RE JECTED BY THE LD. CIT (A). IN THE SAID PETITION, IT HAS BEEN STATED THAT THE SISTER CONCERN OF THE ASSESSEE HAS FILED A CLAIM IN THE OFFICE AGAINST M/S. SOLARIS INFRA PROJECT PVT. LTD. AND AL SO FIR HAS BEEN FILED, BECAUSE THE SAID COMPANY HAS DEFRAUDED HIGH AMOUNT OF MONEY TO THE TUNE OF RS.25 CRORE. DUE TO ONGOING COMPLAINTS AND FIR LODGED AGAINST THE SAID PARTY, H E DID NOT RESPOND OR CO-OPERATE WITH THE ASSESSEE OR WITH THE DEPARTMENT. ALONG WITH THE SAID PETITION, CATENA OF EVIDENCES HAVE BEEN FILED AND WAS EXPLAINED THAT DUE THESE CIRCUMSTANCES, THE PARTY WAS NOT RESPONDING TO THE ASSESSEE; AND LATER ON ASSESSEE HAS GIVEN THE CORRECT ADDRESS OF THE PARTY AND ALSO FILED OTHER DOCUMENTS IN SUPPORT OF ITS CASE. UNDER THESE FACTS AND CIRCUMSTANCES AND IN THE INTE REST OF SUBSTANTIAL JUSTICE, ALL THE DOCUMENTS FILED BY THE ASSESSEE SHOULD HAVE BEEN ADMITTED FOR ADJUDICATION ON MERIT . ACCORDINGLY, I AM RESTORING THE ENTIRE ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO SHALL EXAMINE ALL THE EVIDENC ES FILED BY THE ASSESSEE AND ASSESSEE WILL CO-OPERATE WITH THE ASSESSING OFFICER IN CONDUCTING ANY INQUIRY FROM THE SAID PAR TY. THE I.T.A. NO.7498/DEL/2018 4 ASSESSING OFFICER WILL GIVE DUE AND PROPER OPPORTUN ITY OF HEARING TO THE ASSESSEE TO SUBSTANTIATE ITS CASE. A CCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTIC AL PURPOSES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH APRIL, 2019. SD/- [AMIT SHUKLA] JUDICIAL MEMBER DATED: 26 TH APRIL, 2019 PKK: