ACIT, New Delhi V. Remarkable Estates Pvt. Ltd., New Delhi

MA 488/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3919 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 26-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD SHARMA
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Search and seizure
• Section: 40A(3); 254(2)

Judgement Text

1 M.A NOS. 488 & 489/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMB ER AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER M.A NO. 488/DEL/2018 IN (ITA NO. 768/DEL/2015) (A.Y. 2006-07) M.A NO. 489/DEL/2018 IN (ITA NO. 1357/DEL/2015) (A.Y. 2007-08) DCIT CENTRAL CIRCLE-32 NEW DELHI (APPLICANT) VS REMARKABLE ESTATE PVT. LTD. M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI AAACR5555N (RESPONDENT) APPLICANT BY SH. VINOD SHARMA, SR. D.R. RESPONDENT BY SH. AJAY BHAGWANI, CA ORDER PER SUCHITRA KAMBLE, JM THESE TWO MISCELLANEOUS APPLICATIONS ARE FIELD BY T HE REVENUE IN RESPECT OF ORDER DATED 9/3/2018 PASSED BY THE TRIBUNAL. 2. THE LD. DR SUBMITTED IN THE MISC. APPLICATION AS UNDER:- IN THIS REGARD, THE PRESENT MISCELLANEOUS APPLICAT ION MAY BE FILED U/S 254(2) OF THE INCOME TAX ACT, 1961 AGAINST THE HONBLE ITA T ORDER IN ITA NO. 768/M/2016 DATED 06.04.2018 FOR A.Y. 2006-07 IN THE CASE OF M/S REMARKABLE ESTATE PVT. LTD. DATE OF HEARING 27.08.2021 DATE OF PRONOUNCEMENT 07.10.2021 2 M.A NOS. 488 & 489/DEL/2018 REVENUE HAS ALREADY FILED MISCELLANEOUS APPLICATIO N (MA) IN THIS CASE ON 07.05.2018 AND MAS HAS ALSO FILED IN THE FOLLOWING CASES ON THE ISSUES INVOLVED IN THIS CASE : (A) M/S IAG PROMOTERS & DEVELOPERS PVT. LTD. - A.Y 2008-09 (B) M/S WESTLAND DEVELOPERS PVT. LTD. A.Y 2006-07 (C) M/S K.A. PROMOTERS & DEVELOPERS PVT. LTD. A.Y 2006-07 (D) M/S K.A. PROMOTERS & DEVELOPERS PVT. LTD. A.Y 2009-10 (E) M/S COUNTRYWIDE PROMOTERS PVT. LTD. A .Y 2006-07 IN VIEW OF THE ABOVE, THE DECISION OF THE HONBLE I TAT IS NOT ACCEPTABLE, AS THE ITAT MAY BE EXAMINED THE TERMS OF COLLABORATION AGR EEMENT AND FACTS OF THE CASE. THE ASSESSEE HAS WRONGLY PLEADED IN THE CASE OF WESTLAND DEVELOPERS PVT. LTD., THAT IT WAS BEING PAID RS. 35,000/- PER ACRE AS REIMBURSEMENT EXPENSES BY COUNTRYWIDE PROMOTERS PVT. LTD (COLLABO RATE & FLAGSHIP CONCERN OF BPTP) AND ADDITION WAS DELETED AS NO CLAIM OF EX PENDITURE WAS FILED BY THE ASSESSEE. A SIMILAR PLEA HAS BEEN TAKEN IN COUNTRYW IDE PROMOTERS, WHICH IS A MISREPRESENTATION OF THE FACTS. THE ENTIRE GROUP OF BPTP HAS EVADED THE CLUTCHES OF THE DEPARTMENT BY MANAGING FAVORABLE JU DGMENT FROM THE APPELLATE AUTHORITIES. THIS IS DESPITE THE FACT THA T SEVERAL INCRIMINATING DOCUMENTS WERE SEIZED DURING THE SEARCH AND HAVE BE EN DISCUSSED AT LENGTH IN THE ORDER OF THE AO. DURING THE SEARCH AND SEIZURE OPERATION IN THE GRO UP OF BPTP SEVERAL INCRIMINATING DOCUMENTS WERE SEIZED BY THE DEPARTME NT AND THE HONBLE ITAT MAY DECIDE THE ISSUES IN THIS MATTER AFTER EXAMINAT ION OF THE SEIZED MATERIAL ON RECORD. THE HONBLE ITAT IS THE FINAL FACT-FINDI NG AUTHORITY AND WAS REQUIRED TO GO INTO THE REASONS FOR ADDITIONAL PAYM ENTS MADE TO THE VENDERS. IN VIEW OF THE ABOVE, IT IS THEREFORE EARNESTLY RE QUESTED TO ACCEPT THE MISC. APPLICATION ON THE ISSUE OF 1. ADDITION ON ACCOUNT OF INTEREST PAID TO VENDORS ON POST DATED CHEQUES (PDCS), 2. ON ACCOUNT OF DISA LLOWANCE OF ADDITIONAL. PAYMENT, AND 3. ADDITION ON ACCOUNT OF DISALLOWANCE U/S 40A(3) OF THE 3 M.A NOS. 488 & 489/DEL/2018 REVENUE IN THE DUE INTEREST OF JUSTICE THE LD. DR FURTHER SUBMITTED THAT THE ORDER DATED 9 /3/2018 MAY BE RECALLED AND THE APPEAL MAY BE HEARD AFRESH. 3. THE LD. AR SUBMITTED THAT THE MISCELLANEOUS APPL ICATION CANNOT BE FILED FOR REVIEW OF THE ORDERS U/S 254 OF THE ACT. THE D EPARTMENT IS SEEKING REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE. IN-FACT, TH ERE WAS NO INCRIMINATING MATERIAL OR NON MENTIONING OF ANY SEIZED MATERIAL B ROUGHT ON RECORD DURING THE HEARING OF THE APPEAL AS WELL AS OF THE MISCELLANEO US APPLICATIONS. HENCE, THESE TWO MISCELLANEOUS APPLICATIONS MAY BE DISMISS ED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT IS PERTINENT TO NOTE THAT THE PRESENT M ISC. APPLICATION IS NOT POINTING OUT ANY MISTAKE APPARENT ON RECORD IN THE ORDER DAT ED 09.03.2018. IN FACT, THE DEPARTMENT IS SEEKING REVIEW OF THE ORDER DATED 9/3 /2018 BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SE CTION 254 OF THE ACT. HENCE, BOTH THE MISCELLANEOUS APPLICATIONS ARE DISMISSED. 5. IN RESULT, BOTH THE MISCELLANEOUS APPLICATIONS A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 07 TH DAY OF OCTOBER, 2021 SD/- SD/- S (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 07/10/2021 R. N. SR. PS * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 4 M.A NOS. 488 & 489/DEL/2018 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI