MAHAGUN INDIA Pvt Ltd, New Delhi V. DCIT Central Circle-3, New Delhi

ITA 8145/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2790 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2012-2013
• Appeal Filed On: 10-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DIVYA
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: ‘E’ NEW DELHI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA,ACCOUNTANT MEMBER ITA No.8145/Del/2019 Assessment Year: 2012-13 Mahagun India Pvt. Ltd., B-66, FF, Vivek Vihar, Delhi. Vs. DCIT, Central Circle- 3, New Delhi. PAN :AAACM6572A (Appellant) (Respondent) ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER: This is an appeal by the assessee against order dated 20.08.2019 of learned Commissioner of Income-Tax (Appeals)-XXVI, New Delhi for the assessment year 2012-13. 2. The grounds raised by assessee are as under: Appellant by Shri Ruchesh Sinha & Ms. Divya, Advocates Respondent by Shri Dilip Singh Kothari, CIT (DR) Date of hearing 15.06.2022 Date of pronouncement 27.06.2022 2 ITA No.8145/Del./2019 1. That the order u/s. 153A read with section 143(3) passed by the Ld. Assessing Officer and partly confirmed by CIT(A) is not only bad in law but also against the facts of the case. i) That the Ld.CIT(A) is erred under the law while confirming the jurisdiction of A.O. in the case of completed assessment in the absence of any incrementing material being found either during the search or post search investigation being made by the Investigation Wing Noida as well as the assessment wing at New Delhi u/s. 153A of the Act. 2. That both the authority below are erred under the law while determining deemed rent on unsold inventory of the appellant being in the trade of real estate. 3. That determination of ALV on ad hoc basis both by the A.O. and the CIT(A) is contrary to the provisions contained u/s. 23(1) of the Act. 4. That any other grounds of appeal may be added/deleted or amended at the time of hearing. 3. Briefly, the facts are, assessee is a resident company. Pursuant to a search and seizure operation conducted in case of assessee under Section 132(1) of the Income-Tax Act,1961 on 03.08.2016, proceedings under Section 153A of the Act was initiated against assessee. In response to the notice issued under Section 153A of the Act, assessee filed its return of income for impugned assessment year on 21.03.2018 declaring total income of Rs.10,24,64,403. While 3 ITA No.8145/Del./2019 completing the assessment under Section 153A read with section 143(3) of the Act, assessing officer made an addition of Rs.37,80,683 on account of rent deemed to have been received by assessee under Section 23(ii) of the Act. Against the assessment order so passed, assessee preferred an appeal before learned Commissioner (Appeals), inter alia, challenging the validity of the assessment order passed under Section 153A read with section 143(3) of the Act as well as validity of the addition made in absence of any incriminating material found as a result of search and seizure operation. While deciding the appeal, learned First Appellate Authority granted partial relief to the assessee. 4. We have heard the parties and perused the material available on record. 5. At the outset, learned counsel appearing for the assessee drew our attention to the grounds raised before learned Commissioner (Appeals) and submitted that, though, in ground No.2, assessee had specifically raised the issue of validity of the assessment order passed under Section 153A read with section 143(3) of the Act and the addition made in absence of any incriminating material and has also 4 ITA No.8145/Del./2019 made detailed submissions on these issues in course of hearing before the first appellate authority, however, learned Commissioner (Appeals) has dismissed the grounds by treating it as general in nature without passing any reasoned order. Thus, he submitted, issue may be restored back to learned Commissioner (Appeals) to adjudicate the grounds raised by assessee. 6. Learned Departmental Representative fairly agreed with the aforesaid submissions of the learned counsel for the assessee. 7. Having considered rival submissions and perused the material on record, we find, before learned Commissioner (Appeals), assessee has raised ground no.2, which reads as under: 2. That the A.O. is erred under the law while abating completed assessment in the absence of any incrementing material being found either during the search or post search investigation being made by the Investigation Wing Noida as well as the assessment wing at New Delhi. 8. It is also observed, in respect of ground No.2, assessee has made detailed submissions before learned Commissioner (Appeals). However, learned Commissioner (Appeals) has dismissed the grounds raised by assessee with the following observations: 5 ITA No.8145/Del./2019 “1. GROUND No. 1, 2, 4 and 5 are dismissed as these are general in nature.” 9. Thus, it is patent and obvious, learned Commissioner (Appeals) has failed to adjudicate a specific ground raised by assessee, being ground no.2, while deciding the appeal. 10. In view of the aforesaid, we are inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the matter back to his file for adjudicating ground no.2. Since, the merits of the addition made under the head ‘income from house property’ is fully dependent upon the outcome of ground no.2 raised before learned Commissioner (Appeals), the ground raised on merits is also restored back to the file of learned Commissioner (Appeals) for de novo adjudication, if warranted, depending upon the decision to be taken in ground no.2 raised by assessee. 11. Consequently, grounds are allowed for statistical purposes. Order pronounced in the open court on 27 th June, 2022. Sd/- Sd/- (ANADEE NATH MISSHRA) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 27 th June, 2022. Mohan Lal 6 ITA No.8145/Del./2019 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Sl. No. Particulars Date 1. Date of dictation (Order drafted through Dragon software): 16.06.2022 2. Date on which the draft of order is placed before the Dictating Member: 21.06.2022 3. Date on which the draft of order is placed before the other Member: 4. Date on which the approved draft of order comes to the Sr. PS/PS: 22.06.2022 5. Date of which the fair order is placed before the Dictating Member for pronouncement: 23.06.2022 6. Date on which the final order received after having been singed/pronounced by the Members: 27.06.2022 7. Date on which the final order is uploaded on the website of ITAT: 27.06.2022 8. Date on which the file goes to the Bench Clerk 27.06.2022 9. Date on which files goes to the Head Clerk: 10. Date on which file goes to the Assistant Registrar for signature on the order: 11. Date of dispatch of order: