ITO, New Delhi V. M/s Yireh Infotech Private Ltd., New Delhi

ITA 810/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4303 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 10-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH I : NEW DELHI) (DELHI BENCH I : NEW DELHI) (DELHI BENCH I : NEW DELHI) (DELHI BENCH I : NEW DELHI) BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.810/DEL./2011 ITA NO.810/DEL./2011 ITA NO.810/DEL./2011 ITA NO.810/DEL./2011 (ASSESSMENT YEAR : 2007 (ASSESSMENT YEAR : 2007 (ASSESSMENT YEAR : 2007 (ASSESSMENT YEAR : 2007- -- -08) 08) 08) 08) ITO, WARD 18(4), ITO, WARD 18(4), ITO, WARD 18(4), ITO, WARD 18(4), VS. VS. VS. VS. YIREH INFOTECH PVT. LTD YIREH INFOTECH PVT. LTD YIREH INFOTECH PVT. LTD YIREH INFOTECH PVT. LTD., .,., ., NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. B BB B- -- -7/5, VASANT VIHAR, 7/5, VASANT VIHAR, 7/5, VASANT VIHAR, 7/5, VASANT VIHAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (PAN/GIR NO.AAACY2791B) (PAN/GIR NO.AAACY2791B) (PAN/GIR NO.AAACY2791B) (PAN/GIR NO.AAACY2791B) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE REVENUE BY : SMT. BANITA DEVI NAOREM, SR.DR REVENUE BY : SMT. BANITA DEVI NAOREM, SR.DR REVENUE BY : SMT. BANITA DEVI NAOREM, SR.DR REVENUE BY : SMT. BANITA DEVI NAOREM, SR.DR ORDER ORDER ORDER ORDER PER A.D. JAIN: JM PER A.D. JAIN: JM PER A.D. JAIN: JM PER A.D. JAIN: JM THIS IS DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 2007-08, TAKING THE FOLLOWING GROUND: THE CIT(A) HAS ERRED ON FACTS AND IN LAW BY ADMITTING ADDITIONAL EVIDENCE AND THEREBY DELETING ADDITIONS OF `6,56,311 IGNORING THAT THE CONDITIONS LAID DOWN FOR ADMITTING ADDITION AL EVIDENCE UNDER RULE 46A ARE NOT SATISFIED IN THE CASE. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSU ANCE OF NOTICE OF HEARING, WHICH HAS NOT RETURNED UNSERVED. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED WITH IN THE ABSENCE OF THE ASSESSEE, WE ARE DOING SO. 3. THE AO, VIDE ORDER DATED 15.12.09, PASSED U/S 144 O F THE I.T. ACT, 1961, MADE THE FOLLOWING ADDITIONS: (A) SHARE CAPITAL RECEIVED - `1,00,000 (B) SUNDRY CREDITORS - `1,69,614 (C) ON ACCOUNT OF TRADING RESULTS - `2,50,000 (D) DISALLOWANCE OF EXPENSES - `1,64,697 TOTAL - `6,84,311 I.T.A. NO.810/DEL./11 (A.Y. : 2007-08) 2 OUT OF THIS, THE CIT(A) CONFIRMED THE DISALLOWANCE OF `28,000, HOLDING THAT THE ASSESSEE HAD NOT FILED DETAILS WITH REGARD THER ETO, EVEN AT THE FIRST APPELLATE STAGE. THE ADDITION TO THE EXTENT OF `6,56,311 WAS DELETED. 4. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US. 5. CHALLENGING THE IMPUGNED ORDER, THE LD.DR HAS CON TENDED THAT WHILE WRONGLY DELETING THE ADDITION OF `6,56,311, T HE CIT(A) HAS ERRED IN ADMITTING THE ADDITIONAL EVIDENCE EVEN THOUGH TH E CONDITIONS FOR ADMITTING ADDITIONAL EVIDENCE AS LAID DOWN IN RULE 4 6A OF THE I.T. RULES, DID NOT STAND SATISFIED. 6. WE HAVE HEARD THE LD.DR. AND HAVE PERUSED THE MAT ERIAL ON RECORD. THE AO PROCEEDED EX-PARTE QUA THE ASSESSEE. T HE CIT(A), HOWEVER, HELD THAT THE SERVICE OF NOTICE ON THE ASSESSEE BY AFFIXTURE WAS NOT A PROPER SERVICE. THE ASSESSEE COMPANY HAD FURNI SHED BEFORE CIT(A), AFFIDAVITS FROM ITS DIRECTORS AND CHARTERED AC COUNTANT. IN HIS AFFIDAVIT, SHRI M.P.S. BINDRA, CA HAD STATED THAT HE HAD MET THE AO ON 15.12.09, AND THE A.O. TOLD HIM THAT THE CASE HAD AL READY BEEN DECIDED. THE ASSESSEES DIRECTOR SHRI JONG KYV AHN HAD STATED THAT THE NOTICE WAS RECEIVED BY MR. A.T. SAINUDIN, DIRECTOR, ON 14.12.09 AND THE SAME WAS DELIVERED TO MR. M.P.S. BINDRA IN THE EVENIN G OF 14.12.09. THE CIT(A) SENT BOTH THESE AFFIDAVITS TO THE AO FOR HI S COMMENTS. THE AO COMMENTED THAT THE AFFIDAVITS WERE JUST AN AFTER-T HOUGHT TO COVER THE MISTAKE COMMITTED BY THE ASSESSEE. THE CIT(A) OBSERV ED THAT THE AO HAD COMPLETED THE ASSESSMENT ON 15.12.09, U/S 144 OF THE ACT, IN A VERY HURRIED MANNER, WITHOUT TAKING INTO ACCOUNT THE DETAILS FILED BY THE ASSESSEE AND HAD NOTED ON THE ORDER SHEET THAT NONE HAD ATTENDED ON 14.12.09. IT WAS IN THESE FACTS THAT THE DETAILS FI LED BY THE ASSESSEE AS ADDITIONAL EVIDENCE WERE ADMITTED AS ADDITIONAL EV IDENCE BY THE CIT(A), HOLDING THAT THIS EVIDENCE WAS BEING TREATED AS REFUSED FROM I.T.A. NO.810/DEL./11 (A.Y. : 2007-08) 3 BEING ADMITTED IN EVIDENCE BY THE AO, THOUGH IT OUG HT TO HAVE BEEN ADMITTED. 7. FROM THE ABOVE NARRATED FACTS, IT IS CLEAR THAT TH E AO REMAINED UNABLE TO MAKE A SPECIFIC COMMENT BEFORE THE CIT(A) AS TO HOW THE AFFIDAVITS SUBMITTED ON BEHALF OF THE ASSESSEE WERE MEREL Y AN AFTER- THOUGHT, DESIGNED TO COVER THE MISTAKE COMMITTED BY T HE ASSESSEE. THE CONTENTS OF THE AFFIDAVITS HAVING NOT BEEN CONTRO VERTED AT ALL BY THE AO, THE CIT(A) WAS CORRECT IN ADMITTING THE ADDI TIONAL EVIDENCE. OTHERWISE TOO, IT IS AGAINST THE VERY PRINCIPLES OF NAT URAL JUSTICE, TO THROW OUT EVIDENCE FURNISHED BY A PARTY, WITHOUT GIV ING DUE CONSIDERATION TO THE SAME. NOBODY CAN BE CONDEMNED U NHEARD. 8. APROPOS THE MERITS OF THE ADDITION, THE CIT(A) HAS OBSERVED AS FOLLOWS: DURING THE COURSE OF APPELLATE PROCEEDINGS ASSESSEE HAS PRODUCED THE DETAILS AND FILED THE COPY OF BALANCE SH EET, WHEREIN, DETAILS ARE AVAILABLE WITH REGARD TO SHARE C APITAL, SUNDRY CREDITORS, TRADING RESULTS ABOUT WHICH THERE IS N O DOUBT. HOWEVER, DISALLOWANCE OF EXPENSES AMOUNTING TO `164697 , IT IS FOUND AS PER SCHEDULE-VII, THERE ARE ADMINISTRATIVE E XPENSES TO THE TUNE OF `136697. HOWEVER, THERE IS NO DETAIL WI TH REGARD TO REMAINING AMOUNT OF `28,000 ABOUT WHICH NO DETAILS H AVE BEEN FILED EVEN AT THE APPELLATE STAGE. SO, DISALLOWANCE TO THE TUNE OF `28,000 IS BEING CONFIRMED. THE OTHER DISALLOWANCE P ERTAINING TO SHARE CAPITAL, SUNDRY CREDITORS AND TRADING RESULTS ARE DELETED. OUT OF TOTAL ADDITION OF `684311, AN AMOUNT OF `28, 000 IS CONFIRMED AND THE REMAINING AMOUNT OF `656311 IS ALL OWED. 9. THE ABOVE FINDINGS OF FACT RECORDED BY THE CIT(A) REMAIN UN- CONTROVERTED. THE BALANCE SHEET OF THE ASSESSEE, AS FURN ISHED BEFORE THE CIT(A), CONTAINS DETAILS CONCERNING SHARE CAPITAL, SUNDRY CREDITORS AND TRADING RESULTS. THESE WERE FOUND TO BE IN ORDER. SCHEDULE VII TO THE BALANCE SHEET SHOWED THAT EXPENSES TO THE TUNE OF `1,36,697, AND NOT OF `1,64,697, WERE ADMINISTRATIVE EXPENSES. THE C IT(A), AS SUCH ALLOWED ADMINISTRATIVE EXPENSES TO THE TUNE OF `1,36,6 97. THE AMOUNT I.T.A. NO.810/DEL./11 (A.Y. : 2007-08) 4 OF `28,000 WAS DISALLOWED, SINCE NO DETAILS WITH REGARD THERETO HAD BEEN FILED EVEN UP TO THE FIRST APPELLATE STAGE. 10. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE CIT(A) AND THE SAME IS HEREBY UPHELD. THE GROUND RAI SED BY THE DEPARTMENT, ACCORDINGLY, STANDS REJECTED. 11. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 13.04.2011. SD/- SD/- (K.D. RANJAN) (A.D.JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED : 13.4.2011 SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT, 4.CIT(A)-XXI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT