M/s. Mirage Investent Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 951/DEL/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0229 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 30-06-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 18-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Assessee Lawyers: B K DHINGRA
• Section: 142(1); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 951 /DEL/201 4 (ASSESSMENT YEAR - 200 6 - 07 ) MIRAGE INVESTMENT PVT.LTD., C/O - F - 6/5, BASEMENT, VASANT VIHAR, NEW DELHI - 110057. PAN - AAECM5570C (APPELLANT) VS ACIT, CENTRAL CIRCLE - 17, NEW DELHI (RESPONDENT ) APPELLANT BY SH.B.K.DHINGRA, CA RESPONDENT BY SH.GAGAN SOOD, SR.DR ORDER TH IS IS AN APPEAL FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 3 0.1 2 .201 3 OF CIT(A) - II , NEW DELHI PERTAINING TO 2006 - 07 ASSESSMENT YEAR ON V ARIOUS GROUNDS INCLUDING GROUND NUMBERS 1 TO 6 ASSAILING THE IMPUGNED ORDER WHERE THE JURISDICTION OF THE AO ITSELF WAS QUESTIONED . 2. THE RELEVANT FACTS OF THE CASE AS APPEARING IN THE ASSESSMENT ORDER ARE THAT THE ASSESSEE WHO IS STATED TO HAVE NOT COMMENCED BUSINESS AND WHOSE BUSINESS IS DESCRIBE D AS DEALING IN REAL ESTATE PROJECTS AND INVESTMENT IN REAL ESTATE PROJECTS WAS SUBJECTED TO SEARCH AT ITS PREMISES ON 20.10.2008. A S A RESULT OF THIS THE ASSESSEE WAS REQUIRED TO FURNISH RETURN OF INCOME VIDE NOTICE U/S 153A. IN RESPONSE THERETO THE AS SESSEE RETURNED NIL INCOME. THEREAFTER, NOTICE U/S 142(1) & 143(2) ALONGWITH QUESTIONNAIRE ETC. WERE ISSUED. CONSIDERING THE FACT THAT THE ASSESSEE HAD CLAIMED A LIABILITY TOWARDS M/S MIRAGE HOMES PVT. LTD. FOR RS.2,43,000/ - WHICH WAS APPARENTLY SPENT BY THIS CONCERN FOR GETTING SHARE CAPITAL AUTHORIZED FROM REGISTER OF COMPANIES THE AO REQUIRED THE ASSESSEE TO FILE NECESSARY EVIDENCE . THE SPECIFIC QUERY WAS RAISED DATE OF HEARING 30 .0 6 .2015 DATE OF PRONOUNCEMENT 22 .0 7 .2015 I.T.A .NO. - 951/ DEL/2014 PAGE 2 OF 3 VIDE QUESTION NO. - 29 OF THE QUESTIONNAIRE DATED 24.09.2010 AND WAS REPEATED VIDE ORDER SHE ET DATED 02.12.2010 . CONSIDERING THE FACT THAT NO EVIDENCE IN REGARD TO THIS W AS FILED DESPITE GIVING TIME, A DDITION OF THE SAID AMOUNT WAS MADE U/S 68 HOLDING THAT THE CREDIT OF RS.2,43,000/ - DECLARED IN ACCOUNT OF M/S MIRAGE HOMES PVT. LTD. REMAINED UNE XPLAINED. 3. THE ORDER PASSED BY THE AO DATED 30.12.2010 U/S 153A/143(3) WAS ASSAILED BY THE ASSESSEE BEFORE THE CIT(A). THE CIT(A) DISMISSED THE ASSESSEE S APPEAL BY AN EX - PARTE ORDER AS IN RESPONSE TO NOTICES ISSUED THE ASSESSEE REMAINED UNREPRESENTED. THE RECORD SHOWS THAT INITIALLY THE ASSESSEE SOUGHT TIME ON THE GROUND THAT SH. INDER MOHAN THAPAR AND HIS FAMILY WERE STATED TO BE TRAVELLING ABROAD. THEREAFTER SUBSEQUENT NOTICES WERE ISSUED WHICH REMAINED UNCOMPLIED W I T H . CONSIDERING THE FACT THAT THE SE ARCH ON THAPAR DHINGRA GROUP OF CASES CONDUCTED ON 20.10.2008 RESULTED IN UNEARTHING OF A NETWORK O F SHAM COMPANIES WHICH W ERE USED TO INFUSE UNACCOUNTED MONEY BY A WELL ORCHESTRATED ARRANGEMENT OF SEEMINGLY ACCOUNTED TRANSACTIONS EMANATING FROM THE AUDITED FINANCIAL STATEMENTS WHICH ACTUALL Y WERE CONSIDERED TO BE ENGAGED IN THE ACTIVITY OF BOOK BUILDING . A CCORDINGLY THE ADDITIONS MADE WERE CONFIRMED BY HIM . 4 . LD. AR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE POINT AT ISSUE IS FULLY C OVERED IN ITS FAVOUR BY JUDGEMENTS OF THE JURISDICTIONAL HIGH COURT AND ALL RELEVANT FACTS WERE AVAILABLE BEFORE THE CIT(A). ACCORDINGLY IT WAS HIS SUBMISSION TH AT ON MERITS THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED. IN THE ALTERNATE IT WAS HIS PR AYER THAT SINCE THE ORDER PASSED IS AN EX - PARTE ORDER, IT MAY BE SET ASIDE TO THE FILE OF THE CIT(A) DIRECTING HIM TO DECIDE AFTER HEARING THE ASSESSEE. 5 . THE LD. S R . DR SUBMITTED THAT ON FACTS THE ISSUE HAS CORRECTLY BEEN DECIDED AND THE JUDGEMENTS OF THE JURISDICTIONAL HIGH COURT INCLUDING OTHER DECISIONS HAVE BEEN CONSIDERED THUS IT WAS OPPOSED THAT THE ISSUE CAN BE DECIDED IN ASSESSEE S FAVOUR . HOWEVER CONSI DERING THE FACT THAT THE ORDER UNDER CHALLENGE IS AN EX - PARTE ORDER , IT WAS HIS SUBMISSION THAT HE HAS NO OBJECTION IF THE APPEAL IS RESTORED AND DECIDED AFTER HEARING THE ASSESSEE PROVIDED THE ASSESSEE WAS READY TO PARTICIPATE . I.T.A .NO. - 951/ DEL/2014 PAGE 3 OF 3 6. THE LD. AR, SH.B.K.DHING RA STATED THAT HE WOULD ENSURE THAT THE ASSESSEE FULLY PARTICIPATE S IN THE PROCEEDINGS , IF THE ISSUE IS RESTORED . 7 . HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUM STANCES OF THE CASE IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE FILE OF THE CIT(A). RIGHT TO BE HEARD IS AN IMPORTANT RIGHT TO WHICH A PARTY WHO IS FACED WITH AN ADVERSE VIEW IS ENTITLED TO . IT IS HOPED THAT THE OPPORTUNITY SO PROVIDE IS NOT ABUSED BY THE ASSESSEE AND IS GAINFULLY UTILIZED BY FULLY PARTICIPATING IN THE PROCEEDINGS BEFORE THE CIT(A). FAILING WHICH THE LD. CIT(A) WOULD BE AT LIBERTY TO PASS AN ORDER IN ACCORDANCE WITH LAW. IN THE LIGHT OF THESE FACTS AND REASONING, THE IMPUGNED ORDER IS SET ASIDE AND THE ISSUE IS RESTORED TO THE FILE OF THE CIT(A) WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 2 2 N D OF JULY , 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 2 2 /07 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI