FR. Sauter AG, New Delhi V. ITO Ward International Tax 1(3)(2), New Delhi

ITA 831/DEL/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5574 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 06-11-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 23-03-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Cost of acquisition; Set aside; Capital Gains
• Section: 147; 271(1)(c); 234B; 48

Judgement Text

1 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “D” BENCH: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.831/Del/2023 [Assessment Year : 2012-13] FR. Sauter AG, C/o-Price Waterhouse and Co.LLP, 11-A, Sucheta Bhawan, Vishnu Digamber Marg, New Delhi-110002. PAN-AABCF8213A vs ITO, Ward International Tax-1(3)(2), New Delhi. APPELLANT RESPONDENT Appellant by Shri Ravi Sharma, Adv. & Ms. Shruti Khimta, AR Respondent by Shri Sanjay Kumar, Sr.DR Date of Hearing 07.11.2023 Date of Pronouncement 22.11.2023 ORDER PER KUL BHARAT, JM : The present appeal filed by the assessee is directed against the order passed by Ld. Commissioner of Income Tax (Appeal) (‘CIT(A)’ for short)-42, Delhi dated 31.01.2023 pertaining for the assessment year 2012-13. 2 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 2 2. The assessee has raised following grounds of appeal:- “On the facts and in the circumstances of the case and in law, the Learned Assessing Officer (Ld. AO) and Learned Commissioner of Income Tax (Appeals), Delhi - 42 ["Ld. CIT(A)') erred both on facts and in law while making or confirming the additions made to the Appellant's income. The present appeal is being preferred on the following grounds. 1. Ground No. 1: Reassessment proceedings are bad-in- law 1.1. On the facts and in the circumstances of the case and in law, the Ld. AO has erred in initiating the re-assessment proceedings under the Act in respect of AY 2012-13, in the absence of any income escaping assessment. 1.2. On the facts and circumstances of the case & in law, the order passed by the Ld. AO is bad in law and void ab initio and therefore liable to be quashed. The following grounds are without prejudice to Ground No. 1. Ground No. 2: Non-admission of additional evidence 2.1. On the facts and circumstances of the case & in law, the Ld. CIT(A) erred in rejecting the additional evidence filed by the Appellant and holding that there were no exceptional circumstances which prevented the Appellant from filing the evidence during course of assessment proceedings. 2.2. The Appellant prays that the additional evidence filed by the Appellant be admitted. 3 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 3 3. Ground No. 3: Non-consideration of cost of acquisition for computation of long- term capital gains 3.1. On the facts and in the circumstances of the case and in law, the Ld. AO erred in computing the capital gains of the Appellant without considering the cost of acquisition of Rs. 4.45.01,750 as per the provisions of section 48 of the Act. 3.2. The Appellant prays that the cost of acquisition of Rs. 4.45.01,750 be reduced from the sale consideration for computation of capital gains. 4. Ground No. 4: Classification of capital gains 4.1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not characterizing the nature of capital gains arising on the impugned transaction of sale of shares as long-term capital gain' in his order despite the specific submissions and evidence filed by the Appellant. 4.2. Further, the Ld. CIT(A) erred in not directing the Ld. AO to compute the capital gains as per first proviso of section 48 and section 112 of the Income Tax Act, 1961 (the Act) read with Rule 115A of the Income Tax Rules, 1962 ("Rules'). 4.3. The Appellant prays that the capital gains ought to be assessed as income from long-term capital gains and the Ld. AO be directed to compute capital gains at Rs. 4,16,27,166 as per first proviso of section 48 and section 112 of the Act read with Rule 115A. 4 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 4 5- Ground No. 5: Credit of taxes deducted at source and self-assessment tax 5.1. On the facts and in the circumstances of the ease and in law, the Ld. AO erred in not giving credit for the taxes deducted at source amounting to Rs. 85,58,982 and self-assessment tax amounting to Rs. 3,49,141 while determining the tax liability under the Act. 5.2. The Appellant prays the credit for taxes deducted at source and self-assessment tax paid be granted while determining the tax liability for the year. 6. Ground No. 6: Levy of interest under sections 234A and 234B of the Act 6.1. On the facts and in the circumstances of the case and in law, the Ld. AO erred in levying interest under sections 234A and section 234B of the Act. 6.2. The Appellant prays that interest levied under section 234A and section 234B of the Act be deleted. 7. Ground No. 7: Computation of interest under sections 234A and 234B of the Act 7.1. Without prejudice to Ground No. 6, on the facts and in the circumstances of the case and in law, the Ld. AO erred in computing interest under sections 234A and 234B of the Act on the total tax liability without giving credit of the prepaid taxes paid by the Appellant. 5 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 5 7.2. The Appellant prays that the interest under sections 234A and 234B of the Act, if at all leviable, ought to be computed on the net tax liability calculated after giving credit of the prepaid taxes paid by the Appellant. 8. Ground No. 8: Initiating penalty proceedings under section 271(1)(b) of the Act On the facts and in the circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 274 r.w. s. 271(1)(b) of the Act. Ground No. 9: Initiating penalty proceedings under section 271(1)(c) of the Act On the facts and in the circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 274 r.w. s. 271(1)(c) of the Act. 10. Ground No. 10: Initiating penalty proceedings under section 271F of the Act On the facts and in the circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 271F of the Act. The Appellant craves leave to add to, omit or alter all or any of the above Grounds of Appeal before or during the hearing of aforesaid matter.” 6 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 6 3. Facts giving rise to the present appeal are that, the case of the assessee was re-opened u/s 147 of the Income Tax Act, 1961 (“the Act” for short) after recording the reasons and seeking necessary approval, the reasons stated for reopening are that despite having taxable income during the concerned Assessment Year no return has been filed by the assessee and no income has been declared by the assessee, thereafter the Assessing Officer assessed income at Rs. 18,30,22,368/-. 4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), the assessee had also filed application for addition of additional evidence under Rule 46A of the Income Tax Rules, 1962 (hereinafter referred to as the ‘Rules’). The application so filed by the assessee was rejected and the additional evidences were not admitted by the Ld. CIT(A). 5. Aggrieved against the order of Ld.CIT(A), the assessee preferred appeal before this Tribunal. 6. The Ld. Counsel for the assessee at the outset apropos to the Ground No. 2 submitted that the assessee had filed additional evidences and he also pointed out that there was no effective 7 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 7 representative before the Assessing Authority, he, therefore, prayed that matter be remanded to Lower Authority for consideration of additional evidence, he contended that the additional evidence as filed by the assessee goes to the root of the matter. He further submitted that to sub serve the interest of justice the additional evidence as filed by the assessee may be admitted. On the other hand, the Ld. Departmental Representative opposed these submissions and supported the orders of the Authorities below, he contended that the assessee was provided sufficient opportunity which it failed to avail, therefore, the Ld. CIT(A) rightly did not consider the additional evidences so filed. At this stage, additional evidences should not be admitted. 7. We have heard the rival submissions, perused the material available on records. We find that the Ld. CIT(A) has decided this issue by observing as under:- “11.4.1. The AO has raised objection to the admission of additional evidence on the ground that as per Rule 46A, additional evidence may only be accepted if there were any exceptional circumstances which prevented the assessee from filing the evidence during course of assessment proceedings. The AO has submitted that as 8 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 8 per the facts and circumstances of the case, the appellant does not fulfill any of the conditions specified in Rule 46A as the assessee had been given enough opportunity of being heard and was not prevented by any sufficient cause to produce the evidence during the assessment proceeding. The AO has contended that the assessee was given ample opportunities to file its replies even then the assessee has failed to file the necessary document in support of its claim. The AO has therefore, requested that the additional evidence submitted by the assessee during appellate proceeding deserve to be rejected. 11.4.2. The appellant has not been able to controvert the observations of the AO in this regard. Therefore, I agree with the AO that the appellant was provided with ample opportunities during the assessment proceedings and therefore, there was no exceptional circumstances which prevented the assessee from filing the evidence during course of assessment proceedings. It is therefore, concluded that the appellant does not fulfill any of the conditions specified in Rule 46A and the additional evidences filed during appeal cannot be accepted. The assessment order and remand report in this regard are upheld. Accordingly, no deduction is to be allowed from the total consideration of Rs. Rs. 9,15,11,184/-.” 8. Looking to the material available on record, we find merit into the contention of the assessee that the additional evidence as filed 9 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 9 by the assessee goes to the root of the dispute, therefore, to serve the interest of justice, we hereby admit the additional evidences filed by the assessee and restore the additional evidence to the file of the Ld. CIT(A) for deciding the Grounds of Appeal afresh after giving due opportunity to the assessee and considering the additional evidences so filed. 9. The other issue related to the merit of addition and legality of reopening of the assessment are also set aside to the file of the Ld. CIT(A) to decide it afresh after providing adequate opportunity of being heard to the assessee. The Grounds raised in this Appeal are allowed for statistical purpose. Therefore, the impugned order is hereby set aside. 10. In the result, the Appeal in ITA No. 831/Del/2023 filed by the assessee is allowed for statistical purpose. Order pronounced in the open Court on 22nd November, 2023. Sd/- Sd/- (SHAMIM YAHYA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER * Amit Kumar/R.N, Sr. PS* 10 ITA No. 831/Del/2023 Fr. Sauter AG. Vs. ITO Page | 10 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI