Glitz Builders and Promoters Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 765/DEL/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5106 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR KEDIA
• Assessee Lawyers: AJAY BHAGWANI
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI DR. B.R.R. KUMAR, ACCOUNTANT MEMBER I.T.A. NO.765/DEL/2015 ASSESSMENT YEAR 2006-07 GLITZ BUILDERS AND PROMOTERS PVT. LTD., M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI V. ACIT, CENTRAL CIRCLE-23, NEW DELHI. TAN/PAN: AABCG 9331N (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PIYUSH KAUSHIK, ADV. AND SHRI AJAY BHAGWANI, CA RESPONDENT BY: SHRI RAJESH KUMAR KEDIA, CIT-DR DATE OF HEARING: 10 02 2020 DATE OF PRONOUNCEMENT: 17 02 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 31.10.2014, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DE LHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.153A FOR THE ASSESSMENT YEAR 2006-07. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THAT THE ORDERS PASSED BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS)-XXXIII, NEW DE LHI ARE BAD IN LAW AND VOID AB-INITIO. I.T.A. NO.765/DEL/2015 2 2. THAT THE CIT(A) ERRED IN UTILIZING THE MATERIAL SEIZED IN THE COURSE OF SEARCH ON BPTP GROUP OF CASES (EXCLUD ING APPELLANT) ON 15.11.2007 WHICH DID NOT BELONG TO TH E APPELLANT. 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAS ERRED IN HOLDING THAT WHEREVER T HE DATE OF PDCS ARE EXTENDED, INTEREST IS TO BE TAKEN TO HAVE BEEN PAID @ 15% P.A. IN CASH OUTSIDE THE BOOKS OF ACCOUNT AND I S TO BE TREATED AS UNDISCLOSED INCOME. 2.2 THAT NO ENQUIRIES WERE MADE FROM ANY OF THE ALL EGED RECIPIENTS OF THE INTEREST AND NONE WAS CONFRONTED WITH THE RELEVANT DOCUMENT(S). 2.3 THAT THE ADDITION WAS UNWARRANTED BEING BASED M ERELY ON SURMISES AND CONJECTURES WITHOUT PROOF AND CORRO BORATION BY INDEPENDENT EVIDENCE. 3. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE A ND IN LAW THE CIT(A) ERRED IN SUSTAINING THE DISALLOWANCE OF RS.4,59,999/- U/S. 40A(3) OF THE IT ACT DESPITE THE FACT THAT NO DEDUCTION IN RESPECT OF SAID SUM WAS CLAIMED IN THE COMPUTATION OF INCOME FROM BUSINESS. 3.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN CONFIRMING THE DISALLOWANC E U/S. 40A(3) OF RS.4,59,999/- DESPITE THE FACT THAT SIMIL AR DISALLOWANCE MADE UNDER SIMILAR CIRCUMSTANCES WAS D ELETED BY ITAT VIDE ORDER DATED 22.08.2014 IN ITA NO.L752/DEL/2013 IN CASE OF M/S. WESTLAND DEVELOPER PVT. LTD. FOR THE AY 2006-07 BEING A GROUP COMPANY COPY OF WHICH ORDER WAS FILED BEFORE THE CIT(A) AND WHOSE FACTS W ERE AKIN TO THE FACTS OF THE APPELLANT COMPANY. I.T.A. NO.765/DEL/2015 3 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT GROUNDS NO.1 IS GENERAL IN NATURE; THEREFORE, NEEDS NO ADJUDICATION. GROUNDS NO.2 TO 2.5 WERE NOT PRESSED AT THE TIME OF HEARING, THEREFORE, THE SAME ARE DISMISSED AS NOT PRESSED. THE ONLY EFFECTIVE GROUND RELATES TO ADDIT ION OF RS.4,59,999/- U/S.40A(3). 3. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07 , TRIBUNAL VIDE ORDER DATED 2 ND JANUARY, 2015 HAS DELETED THE ADDITION IN THE FIRST ROUND OF QUANTUM PROCEEDINGS U/S.143(3). NOW THE SAME ADDITION HAS BEEN MADE ONC E AGAIN IN THE ASSESSMENT ORDER PASSED U/S.153A. SINCE SAME VERY ADDITION HAS BEEN DELETED, THEREFORE, THIS ADDITION CANNOT BE SUSTAINED IN THE IMPUGNED PROCEEDINGS U/S.153A. 4. LD. DR THOUGH HAS SOUGHT ADJOURNMENT FOR ALL THE APPEALS OF THE ASSESSEE, HOWEVER, WHEN IT WAS POINT ED OUT THAT THE PRESENT APPEAL STANDS COVERED, THEN ADJOURN MENT SOUGHT FOR PRESENT ASSESSMENT YEAR WAS REJECTED AND ALL THE OTHER APPEALS WERE ADJOURNED. ON MERITS, HE RELIED UPON THE ORDER OF THE LD. CIT (A). 5. HERE, IN THIS CASE, ORIGINAL ASSESSMENT ORDER WA S PASSED U/S. 143(3) VIDE ORDER DATED 31.12.2008 WHEREIN ADD ITION ON ACCOUNT OF SECTION 40A(3) WAS MADE BY THE ASSESSING OFFICER OF RS.4,59,999/-. THE SAID ADDITION FINALLY STOOD D ECIDED BY THE TRIBUNAL IN ITAS NO.1747 AND 1406/DEL/2018, WHE REIN THE TRIBUNAL VIDE ORDER DATED 2 ND JANUARY, 2015 HAS DELETED I.T.A. NO.765/DEL/2015 4 THE SAID ADDITION ON MERITS, HOLDING THAT ONCE ASSE SSEE HAS NOT CLAIMED ANY DEDUCTION IN RESPECT OF COST OF PUR CHASE OF LAND, WHETHER ORIGINAL OR ADDITIONAL PAYMENT, THEN THERE IS NO QUESTION OF DISALLOWANCE U/S. 40A (3). NOW AGAIN SI MILAR ADDITION HAS BEEN REITERATED IN THE PRESENT ASSESSM ENT PROCEEDINGS PASSED U/S.153A IN THE WAKE OF SEARCH A ND SEIZURE OPERATION CONDUCTED ON 05.02.2011, WHEREIN THE ASSESSING OFFICER HAS REPEATED THE SAID ADDITION ON THE GROUND THAT IN THE FIRST ROUND OF PROCEEDINGS, LD. CIT (A) HAS CONFIRMED THE SAID ADDITION. NOW, THAT THE ADDITION STANDS DELETED, THEREFORE, THE ADDITION MADE BY THE ASSESS ING OFFICER IN THE PRESENT PROCEEDINGS ARE DELETED. 6. ON PERUSAL OF THE FILE, IT IS SEEN THAT ASSESSEE HAS RAISED CERTAIN ADDITIONAL GROUND, HOWEVER, AT THE TIME OF HEARING, THE ADDITIONAL GROUNDS WERE NOT ARGUED OR PRESSED, THER EFORE, SAME ARE NOT ADJUDICATED UPON. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEBRUARY, 2020. SD/- SD/- [DR. B.R.R. KUMAR] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 17 TH FEBRUARY, 2020 PKK: