Niho Construction Ltd., New Delhi V. ITO, Ward- 18(2), New Delhi

ITA 99/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2629 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 04-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Corroborative evidences; Set aside
• Section: 143(3); 14A; 37

Judgement Text

ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) (THROUGH VIDEO CONFERENCING) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO: 99/DEL/2018 ( ASSESSMENT YEARS: 2013-14) NIHO CONSTRUCTION LTD. X-22, 1 ST FLOOR, HAUZ KHAS, NEW DELHI. VS. ITO WARD 18(2) NEW DELHI. APPELLANT RESPONDENT PAN NO: AABCN8530G ASSESSEE BY : SHRI RAJ KUMAR, CA REVENUE BY : SHRI R.K. JAIN, SR. DR PER ANADEE NATH MISSHRA, AM (A) THIS APPEAL BY THE ASSESSEE IS FILED AGAINST THE O RDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-6, DELHI, [LD. CIT(A), FO R SHORT], DATED 03.10.2017 FOR ASSESSMENT YEAR 2013-14. THE GROUNDS TAKEN IN THIS APPEAL OF ASSESSEE ARE AS UNDER: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) HAS ERRED IN LAW WHILE UPHOLDING THE UNJUSTIFIED, U NWARRANTED, UNLAWFUL ADDITION OF RS. 1,09,84,142/- ON ACCOUNT O F UNEXPLAINED SUNDRY CREDITORS U/S 68. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) HAS ERRED IN LAW WHILE UPHOLDING THE UNJUSTIFIED, U NWARRANTED, UNLAWFUL ADDITION OF RS. 72,00,977.00 ON ACCOUNT OF UNVERIFIABLE OTHER EXPENSES. ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 2 OF 6 (B) IN THIS CASE, THE ASSESSMENT ORDER DATED 18.03.201 6 WAS PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT; WHEREIN I NCOME OF THE ASSESSEE WAS DETERMINED AT RS. 2,05,32,630/- AS AGAINST RETURNED INCOME OF RS. 7,95,810/-. THE ASSESSEE FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) [LD. CIT(A), FOR SHORT] VIDE IMPUGNED APPELLATE ORDER DATED 03.10.2017 THE LD. C IT(A) DISMISSED THE ASSESSEES APPEAL. THE RELEVANT PORTION OF THE ORDER OF THE C IT(APPEALS) IS REPRODUCED AS UNDER: 3.1.2 IN THIS OFFICE THE APPEAL WAS FIRST FIXED F OR HEARING ON 22.08.2017 VIDE NOTICE DATED 08.08.2017. HOWEVER, ON 22.08.2017 NE ITHER THE APPELLANT ATTENDED NOR DID IT SEEK ADJOURNMENT. THE APPEAL W AS RE-FIXED FOR HEARING ON 08.09.2017 VIDE NOTICE DATED 24.08.2017. HOWEVER, ON 08.09.2017 NEITHER DID THE APPELLANT ATTEND NOR DID IT SEEK ADJOURNMENT. THE APPEAL WAS FINALLY FIXED FOR HEARING ON 21.09.2017 VIDE NOTICE DATED 13.09.2 017. ON 21.09.2017, SHRI J.R. KESWANI, AR ATTENDED AND REQUESTED FOR ADJOURN MENT STATING THAT THE APPEAL FOR AY 2012-13 IS PENDING BEFORE ANOTHER CIT (A). CONSIDERING THE REQUEST, THE HEARING WAS ADJOURNED TO 03.10.2017. HOWEVER, 03.10.2017, INSTEAD OF MAKING SUBMISSIONS ON MERITS OF THE CASE , THE AR AGAIN REQUESTED FOR KEEPING THE APPEAL PROCEEDINGS IN ABEYANCE. HIS RE QUEST WAS CONSIDERED, BUT IT IS NOT POSSIBLE TO KEEP THE APPEAL PROCEEDINGS IN A BEYANCE INDEFINITELY, AS EACH ASSESSMENT YEAR IS AN INDEPENDENT UNIT AND DECISION S FOR EARLIER YEARS SERVE AS GUIDANCE BUT ARE NOT BINDING. FROM THE ABOVE FACTS, IT THEREFORE, APPEARS THAT AP PELLANT IS NOT INTERESTED IN PROSECUTING THE APPEALS. IN THIS VIEW, I FIND SUPP ORT FROM THE FOLLOWING DECISIONS: (I) IN THE CASE OF MULTIPLAN INDIA (P) LTD. 38 ITD 320 (ITAT DELHI). (II) IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. C WT; 223 ITR 480 (MP) WHERE WHILE DISMISSING THE REFERENCE MADE AT THE INSTANCE OF THE ASSESSEE IN DEFAULT, FOLLOWING OBSE RVATION WAS MADE IN THEIR ORDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS M ADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENC E, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. 2. CONSIDERING THE ABOVE, SINCE THE APPELLANT IS N OT INTERESTED IN PROSECUTING THE APPEALS, THEREFORE, APPEALS OF THE APPELLANT ARE DI SMISSED FOR NON PROSECUTION. ON MERITS OF THE CASE ALSO, I FIND THAT THE ADDITIO N OF RS. 1,09,84,142/- ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS U/S 68, RS. 72,00,977/- ON ACCOUNT OF UNVERIFIABLE OTHER EXPENSES, RS. 1,38,050/- ON ACCO UNT OF DISALLOWANCE U/S 14A AND RS. 14,13,650/- OTHER DISALLOWANCE WAS CORRECTL Y MADE BY THE AO ON THE BASIS OF AVAILABLE INFORMATION ON RECORD. IN FACT THE AO HAD NOT BEEN PROVIDED ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 3 OF 6 THE NECESSARY EVIDENCE IN RESPECT OF THE CLAIMS MAD E BY THE APPELLANT EVEN DURING THE ASSESSMENT PROCEEDINGS AND THE APPELLANT HAD THUS FAILED TO PROVIDE NECESSARY SUPPORTING EVIDENCE. IN SUCH CIRCUMSTANC ES THE AO WAS ABSOLUTELY CORRECT IN DRAWING THE CONCLUSION THAT THE GENUINEN ESS OF THE TRANSACTIONS/EXPENSES REMAINED UNPROVED. THEREFORE , I AM LEFT WITH NO OPTION BUT TO DISMISS THE GROUND OF APPEAL NO. 1. (C) THE PRESENT APPEAL BEFORE US HAS BEEN FILED BY THE ASSESSEE AGAINST THE AFORESAID IMPUGNED APPELLATE ORDER DATED 03.10.2017 OF THE LD . CIT(A). DURING APPELLATE PROCEEDINGS IN INCOME TAX APPELLATE TRIBUNAL THE AS SESSEE FILED A BRIEF SYNOPSIS, IN ADDITION TO THE PAPER BOOK CONTAINING THE FOLLOWING PARTICULARS: - S.NO. PARTICULARS 1. INDEX OF PAPER BOOK-1 2. ADJOURNMENT APPLICATION TO CIT(A) ON 03.10.2017 3. ADJOURNMENT APPLICATION DTD. 20.09.2017 FILED TO CIT(A) ON 21.09.17 4. SUNDRY CREDITORS ADDITION RS. 1,09,84,142/- LETTER TO AO DTD. 11.12.15 DETAILS OF SUNDRY CREDITORS IN THIS YEAR LEDGER A/C OF M/S SEEMA ENTERPRISES LEDGER A/C OF M/S SHREE DHARMA INFRASTRUCTURE PVT. LTD. LEDGER A/C OF M/S S.R. ENTERPRISES LEDGER A/C OF M/S SHREE KRISHNA TRADING CO. LEDGER A/C OF M/S NIHO BUILDWELL PVT. LTD. LEDGER A/C OF M/S JAI SHREE TRADING CO. LEDGER A/C OF M/S ANGAD TRADERS LEDGER A/C OF M/S H.K. & SONS PVT. LTD. LEDGER A/C OF M/S RAJ & CO. LEDGER A/C OF M/S PARAS TRADING CO. LEDGER A/C OF M/S S.K. TRADING CO. LEDGER A/C OF M/S S.P. SALES CORPORATION LEDGER A/C OF M/S R.P.S. ENTERPRISES LEDGER A/C OF M/S KRISHNA INFRACON PVT. LTD. LEDGER A/C OF M/S SIDHDHESHWAR INFRABUILD PVT. LTD. LEDGER A/C OF M/S NARMADA TRADING CO. CONFIRMATION OF NIHO BUILDWELL TRADING CO. 5. ADDITION FOR UNVERIFIABLE EXPN. 72,00,977/- LETTER TO AO DTD. 10.03.2016 DETAILS OF PROJECT EXPN. AND ADMIN EXP. --DOADMN. EXPN. LEDGER A/C OF PROJECT EXPN. FILED TO AO --DOADMN. EXPN. --DOMARKETING EXPN. 6. ADDITION U/S 14A/ RULE-8D RS. 1,38,050/- AUDITED P&L A/C 7. DISALLOWANCE OF EXPN. U/PROV. TO SEC. 37 AS UNLAWFUL EXP N. RS. 13,19,239/- ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 4 OF 6 LEDGER A/C OF INTT., PENALTY AND REBATE (CONSOLIDAT E) LEDGER A/C OF KOTAK MAHINDRA PRIME LTD. 8. AUDITED FINANCIAL STATEMENT OF A/C (D) AT THE TIME OF HEARING BEFORE US, THE LEARNED AUTHO RIZED REPRESENTATIVE (LD. AR, FOR SHORT) OF THE ASSESSEE SUBMITTED THAT THE LD. C IT(APPEALS) HAS PASSED THE AFORESAID IMPUGNED APPELLATE ORDER DATED 03.10.2017 WITHOUT D ECIDING THE MERITS OF THE GROUNDS OF APPEAL AND WITHOUT DECIDING THE ISSUES IN DISPUTE T HROUGH A SPEAKING ORDER. HE FURTHER SUBMITTED THAT THE ORDER WAS PASSED BY THE LD. CIT( A) DISMISSING ASSESSEES APPEAL IN LIMINE FOR WANT OF PROSECUTION. HE SUBMITTED THAT THE LD. CIT(A) SHOULD BE DIRECTED TO PASS A FRESH APPELLATE ORDER. HE SUBMITTED THAT TH E AFORESAID IMPUGNED APPELLATE ORDER DATED 03.10.2017 OF THE LD. CIT(A) SHOULD BE SET AS IDE AND THE LD. CIT(A) SHOULD BE DIRECTED TO PASS A FRESH APPELLATE ORDER IN ACCORDA NCE WITH LAW, ON THE GROUNDS OF APPEAL, THROUGH A SPEAKING ORDER. (D.1) THE LEARNED DEPARTMENTAL REPRESENTATIVE [LD. DR, F OR SHORT] EXPRESSED NO OBJECTION TO THE REQUEST OF THE LD. AR OF THE ASSES SEE FOR SETTING ASIDE THE IMPUGNED APPELLATE ORDER DATED 03.10.2017 OF LD. CIT(A) AND FOR DIRECTING THE LD. CIT(A) TO PASS A FRESH APPELLATE ORDER IN ACCORDANCE WITH LAW ON THE GROUNDS OF APPEAL, THROUGH A SPEAKING ORDER DECIDING THE MERITS OF THE GROUNDS OF APPEAL. (D.2) WE HAVE HEARD BOTH THE SIDES, AND WE HAVE PERUSED T HE MATERIALS ON RECORD. BOTH SIDES ARE IN AGREEMENT THAT THE LD. CIT(APPEAL S) HAS PASSED THE ORDER IN LIMINE , FOR WANT OF PROSECUTION BY THE ASSESSEE, WITHOUT DE CIDING MERITS OF VARIOUS GROUNDS OF APPEAL, AND WITHOUT PASSING A SPEAKING ORDER ON THE MERITS. BOTH SIDES ARE IN AGREEMENT THAT THE IMPUGNED APPELLATE ORDER SHOULD BE SET ASIDE AND LD. CIT(A) ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 5 OF 6 SHOULD BE DIRECTED TO PASS A FRESH APPELLATE ORDER ON THE GROUNDS OF APPEAL THROUGH A SPEAKING ORDER. FURTHER, U/S 250(6) OF INCOME TAX ACT, THE LD. CIT(APPEALS) WAS DUTY BOUND TO DISPOSE OF ASSESSEES APPEAL, STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON, AND THE REASONS FOR THE DECISION. IT IS N OT IN DISPUTE THAT THE LD. CIT(APPEALS) FAILED TO GIVE HIS DECISIONS ON MERITS THROUGH A SP EAKING ORDER ON THE VARIOUS POINTS FOR DETERMINATION BEFORE HIM (I.E. ON VARIOUS GROUNDS O F APPEAL). (D.2.1) IN VIEW OF THE FOREGOING, AND AS BOTH SIDES ARE IN AGREEMENT TO THIS, WE HEREBY SET ASIDE THE AFORESAID IMPUGNED APPELLATE O RDER DATED 03.10.2017 OF THE LD. CIT(APPEALS) AND DIRECT THE LD. CIT(APPEALS) TO PAS S A DENOVO APPELLATE ORDER IN ACCORDANCE WITH LAW, AFTER PROVIDING A REASONABLE O PPORTUNITY OF BEING HEARD TO THE ASSESSEE, STATING THE POINTS FOR DETERMINATION (I.E . THE GROUNDS OF APPEAL), THE DECISION THEREON, AND THE REASONS FOR THE DECISION. THIS AP PEAL IS DISPOSED OF IN ACCORDANCE WITH THE FOREGOING DIRECTIONS. (E) FOR STATISTICAL PURPOSES THE APPEAL IS TREATED AS P ARTLY ALLOWED. (E.1) THIS ORDER WAS ORALLY PRONOUNCED ON 26 TH OCTOBER, 2021 IN OPEN COURT, IN THE PRESENCE OF REPRESENTATIVES OF BOTH SIDES, AFTER CO NCLUSION OF THE HEARING. NOW THIS ORDER IN WRITING IS SIGNED TODAY ON 27.10.2021. SD/- SD/- (KUL BHARAT) (ANADEE NAT H MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 27/10/21 *KAVITA ARORA ITA NO. 99/DEL/2018 NIHO CONSTRUCTION LTD. PAGE 6 OF 6 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI