ITO, WARD- 18(1), NEW DELHI V. NESTER TRADING PVT. LTD., NEW DELHI

ITA 5684/DEL/2017

AI Insights

The case involves an appeal by the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-6, Delhi, which partly allowed the appeal of M/s Nester Trading Pvt. Ltd. for the assessment year 2009-10. The Revenue challenged the deletion of additions made under section 68 of the Income Tax Act, 1961, which pertained to unexplained income. The primary contention was that the CIT(A) had overlooked the findings of the Assessing Officer regarding the genuineness of transactions involving the ABW group and other entities. The CIT(A)'s decision was also contested on the grounds that it was based on submissions that did not meet the conditions of Rule 46A of the Income Tax Rules, 1962, and was made without a hearing for the AO. The ITAT noted the absence of the respondent in the proceedings and decided to set aside the CIT(A)'s order, remanding the case for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 772373 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2025
• Appeal Filed By: Department
• Order Result: Allowed
• Assessment Year: 2009-2010
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONIKA SINGH
• Assessee Lawyers: IGNORING; IGNORING
• Keywords: Set aside; Opportunity of being heard; Corroborative evidences; Unexplained cash credit; Competent authority
• Section: 147; 148; 143(3)

Judgement Text

" ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: ‘F’: NEW DELHI) BEFORE SHRI S RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SUDHIR PAREEK, JUDICIAL MEMBER ITA No:-5684/Del/2017 (Assessment Years- 2009-10) Income Tax Officer, Ward 18(1), New Delhi, (current AO DCIT, Central Circle, Ajmer) Vs M/s Nester Trading Pvt. Ltd. (formerly Known as M/s Dishayen Leasing Pvt. Ltd.), Shop No. 123, Plot No. 23, Vardhman Charve Plaza, K.P. Block Commercial Complex, Pitampura, New Delhi- 110034. PAN No: AAACD0194R APPELLANT RESPONDENT Assessee by : None Revenue by : Ms. Monika Singh, CIT(DR) Date of Hearing : 10.07.2025 Date of Pronouncement : 27.08.2025 ORDER PER SUDHIR PAREEK, JM: This appeal has been preferred by the Revenue against the order of Ld. Commissioner of Income Tax (Appeals)-6, Delhi, dated 05.07.2017 for A.Y. 2009-10. Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 2 2. The Revenue has raised following grounds of appeal for adjudication: - 1. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee by ignoring finding of facts recorded by the Assessing Officer (the AO) that the assessee failed to prove that transaction occurred by ABW group with other entities (which later on merged with the assessee company) was genuine even after providing sufficient opportunity to the assessee? 2. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee by ignoring the fact that re-opening of the assessment was based on the credible material related to the assessee company and also action of the AO issuing notice u/s 148 of the Act was upheld by the Ld CIT(A) itself vide para no. 3.1.3 of the appellate order? 3. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee on the basis of the details and submission adduced by the assessee during appellate proceedings even when the assessee has not fulfilled conditions as laid down under Rule 46A of Income Tax Rule, 1962 (the Rule) and without providing opportunity of being heard to the AO? 4. That the appellant craves leave to add, Amend, Alter or forgo any ground/(s) of appeal either before or at the time of hearing of the appeal.” Modified grounds: “1. Whether on the facts and circumstances of the case for the assessment year under consideration, the Ld. CIT(A) is justified in law in deleting the addition of Rs. 12,93,59,200/- made u/s 68 of the 1.T. Act, 1961 on account of unexplained income.\" 2. \"Whether on the facts and circumstances of the case for the assessment year under consideration, the Ld. CIT(A) is justified in law in deleting the addition of Rs. 12,93,59,200/-by not relying that the loss of Rs. 12,93,59,200/- credited by the to set off against the compensation received of Rs. 12,93,59,200/- was also disallowed in absence of supporting evidences.\" Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 3 3. \"Whether on the facts and circumstances of the case for the assessment year under consideration, the Ld. CIT(A) is justified in law in deleting the addition of Rs. 9,10,00,000/- made u/s 68 of the I.T. Act, 1961 on account of unexplained credit.\" 4. \"Whether on the facts and circumstances of the case for the assessment year under consideration, the Ld. CIT(A) is justified in law in deleting the addition of Rs. 9,10,00,000/- 00/- by not relying that the loss of Rs. 9,08:41:125/-credited by the to set off against the compensation received of Rs. 9,10,00,000/- was also disallowed in absence of supporting evidence.\" 5. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee by ignoring finding of facts recorded by the Assessing Officer (the AO) that the assessee failed to prove that transaction occurred by ABW group with other entities (which later on merged with the assessee company) was genuine even after providing sufficient opportunity to the assessee?\" 6. \"Whether on facts and in circumstances of the case, the Ld. CIT (A) is legally justified in allowing appeal of the assessee by ignoring the fact that re-opening of the assessment was based on the credible material related to the assessee company and also action of the AO issuing notice a/s 148 of the Act was upheld by the Ld. CIT(A) itself vide para No. 3.1.3 of the appellate order?\" 7. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee on the basis of the details and submission adduced by the assessee during appellate proceedings even when the assessee had not fulfilled conditions as laid down under Rule 46 A of Income Tax Rule, 1962 (the Rule) and without providing opportunity of being heard to the AO?\" 8.\"The appellant craves, leave or reserves right to amend, modify, alter add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.\" 2. At the outset, it is noted from the record that despite service of notice, none appeared on behalf of the respondent, nor any Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 4 adjournment request was sought for. From the bare perusal of record, it reveals that since long period, nobody appeared on behalf of the respondent on listed dates for hearing, so it appears to us that the respondent had due opportunity to appear, and accordingly, we proceed to adjudicate the appeal ex-parte qua the respondent, on the basis of material available on record and after hearing the Ld. CIT(DR). 3. Brief facts of the case are that the assessment was completed under section 143(3) of the Income Tax Act, 1961 (the Act) at an assessed income of Rs. 17,73,750/- as against the returned income of Rs. 10,72,501/- vide order dated 27.12.2011. Subsequently, proceeding u/s 147 of the Act, were initiated on 30.03.2016 . Notice u/s 148 of the Act was issued on 30.03.2016, for the A.Y 2009-10, said to be after recording the reasons with the prior approval of the competent authority. Income of the assessee assessed at Rs 22,09,90,159/- and on being dissatisfied with the same, appellant knocked the door of the Learned CIT(A) by way of appeal, which was partly allowed. 3. The Revenue assails the above order before us by present appeal, by stating that the Learned CIT(A) ignored the fact recorded by the Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 5 Learned AO regarding failure of assessee to prove that transaction occurred by ABW Group with other entities and re-opening of the assessment was based on the credible material related to assessee company and further allowed appeal on the basis of the material placed by the assessee during appellate proceeding even non fulfilment of condition under Rule 46A of the Income Tax Rules, 1962 without providing opportunity of being heard to the Learned AO. 4. From the perusal of record, it reveals that the respondent never appeared before us and vide Letter via email ( placed on record) Assistant Commissioner Of Income Tax, central circle, Ajmer communicated that notice of hearing served on 07/04/2025 on email ID: [e-mail], as provided in latest ITR of the assessee company for AY 2024-25 and so, It is evident from the record that the respondent did not appear before the ITAT despite service of notice and there is no any reason available on record regarding prolonged absence of respondent. 5. Accordingly, on the basis of aforesaid fact situation, we deem it fit to set aside the impugned order and restore the matter to the file of the Learned CIT(A), with the direction to decide the appeal afresh after providing opportunity to both the parties. Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 6 5. Consequently, the appeal of the Revenue is allowed for statistical purposes as indicated above. Order pronounced in the Open Court on 27.08.2025 Sd/- Sd/- (S. RIFAUR RAHMAN) (SUDHIR PAREEK) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 27/08/2025. Pooja, Sr. PS Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Printed from counselvise.com ITA No.- 5684/Del/2017 Nester Trading Pvt. Ltd. 7 S. No. Particulars Date 1 Date of dictation of Tribunal Order 22.07.25 2 Date on which the typed draft Tribunal Order is placed before the Dictation Member 22.07.25 3 Date on which the typed draft Tribunal Order is placed before the other Member 4 Date on which the approved draft Tribunal Order comes to the Sr. P.S. /P.S. 5 Date on which the fair Tribunal Order is placed before the Dictating Member for pronouncement 6 Date on which the signed order comes back to the Sr. P.S. /P.S 7 Date on which the final Tribunal Order is uploaded by the Sr. P.S. /P.S. on official website 8 Date on which the file goes to the Bench Clerk along with Tribunal Order 9 Date of killing off the disposed of files on the judiSIS portal of ITAT by the Bench Clerks 10 Date on which the file goes to the Supervisor (Judicial) 11 Date on which the file goes for Xerox 12 Date on which the file goes for endorsement 13 Date on which the file goes to the superintendent for checking 14 The date on which the file goes to the Assistant Registrar for signature on the tribunal order 15 Date on which the file goes to dispatch section 16 Date of Dispatch of the Order Printed from counselvise.com "