Dikshi Lefin Portfolio Pvt. Ltd., Delhi V. ITO ward-7(3), New Delhi

ITA 9291/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3969 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-12-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Reassessment proceedings
• Section: 147; 68; 148

Judgement Text

1 ITA NOS. 9291 & 9292/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SM C NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 9291/DEL/2019 ( A.Y 2011-12) DIKSHI LEFIN PORTFOLIO PVT. LTD. 208, ALLIED HOUSE 2, OLD ROHTAK ROAD, INDER LOK, DELHI AAACD2573L (APPELLANT) VS ITO WARD-7(3) NEW DELHI (RESPONDENT) ITA NO. 9292/DEL/2019 ( A.Y 2009-10) D A KSH LEFIN S LTD. 208, ALLIED HOUSE 2, OLD ROHTAK ROAD, INDER LOK, DELHI AAACD4831F (APPELLANT) VS ITO WARD-7(3) NEW DELHI (RESPONDENT) APPELLANT BY SH. PRIYANSHU SINGHAL, CA RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 3/1/2019 PASSED BY CIT(A)-3, NEW DELHI FOR ASSESSM ENT YEAR 2011-12. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- I ITA NO. 9291/DEL/2019 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORD ER PASSED BY THE LEARNED CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 02.03.2020 2 ITA NOS. 9291 & 9292/DEL/2019 ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN VIOLATION OF PRINC IPLE OF NATURAL JUSTICE. (II) THAT THE NON-APPEARANCE BEFORE THE LD. CIT(A) WAS DUE TO REASONS BEYOND THE CONTROL OF THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN PASSING THE ORDER EX PA RTE WITHOUT GIVING ANY FINDINGS ON THE MERITS OF THE CASE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE ORDER D ESPITE THE FACT THAT THE INITIATION OF THE PROCEEDINGS UNDER SECTION 147, RE AD WITH SECTION 148, IS BAD AND LIABLE TO BE QUASHED AS THE CONDITIONS AND PROC EDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIED AND COMPLIED WI TH. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER PA SSED BY THE A.O. DESPITE THE FACT THAT THE REASSESSMENT PROCEEDINGS INITIATE D BY THE LEARNED A.O. ARE BAD IN THE EYE OF LAW AS THE REASONS RECORDED FOR T HE ISSUE OF NOTICE UNDER SECTION 148 ARE BAD IN THE EYE OF LAW AND ARE CONTR ARY TO THE FACTS. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE A.O. DESPITE THE FACT THAT THE REASSESSMENT PROCEEDINGS INITIATED BY THE LEARNED A.O. ARE BAD IN THE EYE OF LAW AS THERE IS NO INDEPENDENT APPLICATI ON OF MIND APPLIED BY THE A.O WHILE FORMING BELIEF FOR THE PURPOSE OF RECORDI NG OF REASONS. 7. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS & IN LAW IN CONFIRMING THE ACTION OF THE A.O. DESPITE THE FACT THAT INITIATION OF THE PROCEEDINGS UNDER SECTION 147 REA D WITH SECTION 148 IS BAD IN THE ABSENCE OF PROPER SANCTION FROM THE AUTHORIT Y AS PRESCRIBED IN LAW. 8. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION U/S 68 OF THE ACT AMOUNTING TO RS.27,00,000/- MADE BY AO HOLDING THE SAME TO BE INCOME FROM UNDISCLOSED SOURCES. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED 3 ITA NOS. 9291 & 9292/DEL/2019 BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 67,500/- ON ACCOUNT OF COMMISSION MADE BY A.O., WITHOUT THERE BEING ANY BASIS FOR THE SAME. 10. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ADDITION DESPITE THE ASSESSEE BRINGING ON RECORD ALL MATERIAL AND EVIDENCES TO PR OVE THE IDENTITY AND CREDITWORTHINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS. 11. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ABOVE SA ID ADDITION WHICH WAS MADE ON THE BASIS OF MATERIAL COLLECTED AT THE BACK OF THE ASSESSEE WITHOUT GIVING IT AN OPPORTUNITY TO REBUT THE SAME, IN VIOL ATION OF THE PRINCIPLE OF NATURAL JUSTICE. ITA NO. 9292/DEL/2019 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE OR DER PASSED BY THE LEARNED CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSING THE ORDER WITHOUT GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD IN VIOLATION OF PRINC IPLE OF NATURAL JUSTICE. (II) THAT THE NON-APPEARANCE BEFORE THE LD. CIT(A) WAS DUE TO REASONS BEYOND THE CONTROL OF THE ASSESSEE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW IN PASSING THE ORDER EX PA RTE WITHOUT GIVING ANY FINDINGS ON THE MERITS OF THE CASE. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN CONFIRMING THE ORDER D ESPITE THE FACT THAT THE INITIATION OF THE PROCEEDINGS UNDER SECTION 147, RE AD WITH SECTION 148, IS BAD AND LIABLE TO BE QUASHED AS THE CONDITIONS AND PROC EDURE PRESCRIBED UNDER THE STATUTE HAVE NOT BEEN SATISFIED AND COMPLIED WI TH. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER PA SSED BY THE A.O. DESPITE THE FACT THAT THE REASSESSMENT PROCEEDINGS INITIATE D BY THE LEARNED A.O. ARE 4 ITA NOS. 9291 & 9292/DEL/2019 BAD IN THE EYE OF LAW AS THE REASONS RECORDED FOR T HE ISSUE OF NOTICE UNDER SECTION 148 ARE BAD IN THE EYE OF LAW AND ARE CONTR ARY TO THE FACTS. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LE ARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ORDER OF THE A.O. DESPITE THE FACT THAT THE REASSESSMENT PROCEEDINGS INITIATED BY THE LEARNED A.O. ARE BAD IN THE EYE OF LAW AS THERE IS NO INDEPENDENT APPLICATI ON OF MIND APPLIED BY THE A.O WHILE FORMING BELIEF FOR THE PURPOSE OF RECORDI NG OF REASONS. 4. FIRSTLY WE ARE TAKING UP THE FACTS OF ITA NO. 92 91/DEL/2019. THE ASSESSEE COMPANY IS A NBFC COMPANY. IN RESPONSE, N OTICE ISSUED U/S 148 OF THE INCOME TAX ACT, THE ASSESSEE FILED RETURN OF IN COME ON 15/9/2018 DECLARING INCOME OF RS. 48,049/-. DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE ASSESSEE COMPANY WAS ASKED TO EXPL AIN THE AMOUNT OF ACCOMMODATION ENTRY OF RS. 32,00,000/- RECEIVED BY THE COMPANY FROM FOCUS INDUSTRIAL RESOURCES PVT. LTD. AND SAARI AGRO FARMI NG PVT. LTD. THE ASSESSEE SUBMITTED THE CONFIRMATION FROM THE SAI AGRO FARMIN G PVT. LTD. ALONG WITH COPY OF ITR, BALANCE SHEET AND BANK STATEMENT BEFOR E THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE ADDITION OF RS. 27,00,00 0/- U/S 68 OF THE ACT AS WELL AS MADE ADDITION OF RS. 67,500/- IN RESPECT OF COMMISSION. 5. AS REGARDS TO ITA NO. 9292/DEL/2019, THE RESPECT IVE ASSESSEE COMPANY RECEIVED RS. 30 LAKHS FROM JUNOON CAPITAL SERVICES PVT. LTD. AGAINST ISSUE OF SHARES OF DAKSH LEFINS LTD. THE ASSESSEE SUBMITTED THE CONFIRMATION FROM THE SAID COMPANY ALONG WITH COPY OF ITR, BALANCE SHEET AND BANK STATEMENT. THE ASSESSING OFFICER TREATED THE SAID AMOUNT AS ACCOMM ODATION ENTRY AND MADE ADDITION OF RS. 30,00,000/- UNDER SECTION 68 OF THE ACT. THE ASSESSING OFFICER ALSO MADE ADDITION OF RS. 75,000/- ON ACCOUNT OF CO MMISSION PAID IN CASH. 6. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE RES PECTIVE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEALS OF THE ASSESSEE. 5 ITA NOS. 9291 & 9292/DEL/2019 7. THE LD. AR SUBMITTED THAT THE CIT(A) PASSED EX -PARTE ORDER WITHOUT GIVING OPPORTUNITY OF HEARING TO THE RESPECTIVE ASS ESSEE. THEREFORE, THE LD. AR SUBMITTED THAT BOTH THE MATTERS MAY BE REMANDED BAC K TO THE FILE OF THE CIT(A) FOR DECIDING THE APPEALS AFRESH ON MERIT. 8. THE LD. DR SUBMITTED THAT THE DESPITE GIVING SEV ERAL OPPORTUNITIES THE ASSESSEE FAILED TO APPEAR BEFORE THE CIT(A). THERE FORE, THE ORDER OF THE CIT(A) IS JUST AND PROPER. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE ORDER OF THE CIT( A) CAN BE SEEN THAT THE NOTICE WERE ISSUED TO THE ASSESSEE AND ON TWO OCCASIONS, THE ASSESSEE SOUGHT TIME BEFORE THE CIT(A). THE RESPECTIVE ASSESSEE HAVE NO T MADE OUT ANY CASE AS REGARDS TO THE NON APPEARANCE BEFORE THE CIT(A) DES PITE GIVING PROPER OPPORTUNITY. THEREFORE, WE ARE IMPOSING COST OF RS . 5,000/- IN EACH CASE WHICH SHOULD BE PAID BY THE RESPECTIVE ASSESSEE TO THE PR IME MINISTERS RELIEF FUND. THE CIT(A) HAS NOT DISCUSSED THE MERIT OF THE CASE AND PASSED EX-PARTE ORDER. IT WILL BE APPROPRIATE TO REMAND BACK THIS ISSUE IN ENTIRETY TO THE FILE OF THE CIT(A). NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPP ORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEA L OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 10. IN RESULT, BOTH THE APPEALS OF THE ASSESSEE A RE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02/03/2020 R. NAHEED 6 ITA NOS. 9291 & 9292/DEL/2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 25.0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 0 2 . 0 3 . 2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 0 2 . 0 3 . 2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 0 2 . 0 3 . 2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER