Mrs. Bihariji Commodity Brokers Pvt. Ltd., Delhi v. ITO, New Delhi

ITA 2535/DEL/2013 | 2003-2004
Pronouncement Date: 25-04-2014 | Result: Allowed

Appeal Details

RSA Number 253520114 RSA 2013
Assessee PAN AAACB3232G
Bench Delhi
Appeal Number ITA 2535/DEL/2013
Duration Of Justice 11 month(s) 25 day(s)
Appellant Mrs. Bihariji Commodity Brokers Pvt. Ltd., Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 25-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 25-04-2014
Date Of Final Hearing 13-03-2014
Next Hearing Date 13-03-2014
Assessment Year 2003-2004
Appeal Filed On 30-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI: JUDICIAL MEMBER AND SHRI SHAMIM YAHYA : ACCOUNTANT MEMBER ITA NO. 2535/DEL/2013 ASSTT. YR: 2003-04 BIHARIJI COMMODITY BROKERS PVT. LTD. VS. INCOME-T AX OFFICER A-3/31 SECTOR-3 ROHINI DELHI. WARD 3(1) NEW DELHI. PAN: AAACB 3232 G APPELLANT ) ( RESPONDENT ) APPELLANT : SHRI VED JAIN FCA & MS. RANO JAIN CA RESPONDENT BY : MS. Y. KAKKAR SR. DR DATE OF HEARING: 13-03-2014. DATE OF ORDER : 25-04-2014. O R D E R PER R.P. TOLANI J.M: : THIS IS ASSESSEES APPEAL AGAINST ORDER DATED 20-03 -2013 PASSED BY THE CIT(A)-VI NEW DELHI PERTAINING TO A.Y. 2003094. VA RIOUS ISSUES ARE RAISED WHICH IN EFFECT RAISE FOLLOWING GROUNDS OF APPEAL: (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORD ER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. (II) THAT THE ASSESSMENT ORDER HAVING BEEN PASSED IN GRO SS VIOLATION OF THE PRINCIPLE OF NATURAL JUSTICE IS ILLEGAL AND UNT ENABLE IN THE EYES OF LAW. ITA 2535/DEL/2013 BIHARIJI COMMODITY BROKERS PVT. LTD. VS. ITO 2 (III) THE NOTICE TO REOPEN THE ASSESSMENT WAS INVALID ON ACCOUNT OF NON-FURNISHING OF VALID REASONS TO BELIEVE BEFORE I SSUE OF NOTICE U/S 148. (IV) THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRM ING THE ADDITION OF RS. 78 75 000/- U/S 68 AND RS. 5 000/- U/S 69A O F THE I.T. ACT. (V) CHARGING OF INTEREST U/S 234B & D. 2. LD. COUNSEL FOR THE ASSESSEE AT THE OUT SET CONT ENDS THAT DURING THE COURSE OF APPELLATE PROCEEDINGS ASSESSEE HAD APPLIE D UNDER RULE 46 FOR ADMISSION OF ADDITIONAL EVIDENCE IN FORM OF CONFIRM ATIONS COPY OF I.T. RETURNS PAN NOS. COPY OF BANK STATEMENTS ETC. OF T HE SHARE APPLICANTS. THE APPLICATION AND ADDITIONAL DOCUMENTS WERE FORWARDE D BY THE LD. CIT(A) TO AO FOR REMAND REPORT WHICH WAS ALSO SUBMITTED BY ASSESSING OFFICER VIDE LETTER DATED 30-4-2012. ALL THESE FACTS ARE MENTION ED IN PARA 4.1 OF THE CIT(A)S ORDER. HOWEVER NO FINDING ABOUT THE ADMIS SION OF ADDITIONAL EVIDENCE HAS BEEN RECORDED BY THE LD. CIT(A). IN TE RMS OF RULE 46A LD. CIT(A) HAS TO GIVE A DEFINITE FINDING WHETHER THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED OR NOT. THE ADDITIONAL EVIDENCE SUPPL IED BY THE ASSESSEE IS CRUCIAL TO DEMONSTRATE THE DISCHARGES OF ITS ONUS I N TERMS OF SEC. 68 AS HELD BY THE HONBLE DELHI HIGH COURT IN THE CASES OF CIT VS. GANGESHWARI METAL (P) LTD. 214 TAXMAN 423 (DEL.); AND CIT VS. GOEL SO NS GOLDEN ESTATE PVT. LTD. (ITA NO. 212/2012 ORDER DATED 11-04-2012). THE SE JUDGMENTS HOLD THAT PROPOSITION THAT WHEN ASSESSEE HAS DISCHARGED PRIMA RY ONUS BY FURNISHING NECESSARY EVIDENCE ABOUT IDENTITY GENUINENESS AND CREDITWORTHINESS OF SHARE APPLICANTS ON WHICH NO FURTHER INQUIRY HAS BEEN CON DUCTED BY ASSESSING OFFICER THE BURDEN CAST ON THE ASSESSEE U/S 68 IS DISCHARGED. ITA 2535/DEL/2013 BIHARIJI COMMODITY BROKERS PVT. LTD. VS. ITO 3 2.1. ON MERITS ALSO THE ENTIRE ADDITION HAS BEEN CONFIRMED WITHOUT APPRECIATING THE EVIDENCE FURNISHED AND ONLY BECAUS E OF NON PHYSICAL APPEARANCE OF THE SHARE APPLICANTS. IT HAS BEEN IGN ORED THAT THE FINANCIAL YEAR IN QUESTION IS 2002-03 AND THE COMPLETED ASSESSMENT WAS REOPENED AFTER A PERIOD OF 7 YEARS. AFTER SUCH A LONG GAP IT WAS NOT POSSIBLE FOR THE ASSESSEE TO PHYSICALLY PRODUCE THE SHARE APPLICANTS. THE ASS ESSEE HAVING FURNISHED THE NECESSARY EVIDENCE THE SAME OUGHT TO HAVE BEEN VER IFIED BY THE ASSESSING OFFICER THROUGH THE DEPARTMENTAL RECORD AS THE SHAR E APPLICANTS WERE ASSESSED TO INCOME-TAX. 2.2. FOR WANT OF DECISION ON 46A AND FOR INSISTING ON ONLY PHYSICAL PRESENCE OF THE SHARE APPLICANTS AND IGNORING ALL M ATERIAL AVAILABLE ON RECORD THE PRINCIPLE OF NATURAL JUSTICE HAVE BEEN VIOLATED IN THIS CASE. BESIDES FOR THESE DEFICIENCY THE ORDER IS UNSUSTAI NABLE. ALTERNATIVELY IT IS CONTENDED THAT IN THE MEAN TIME A CATENA OF JUDGMEN TS FROM VARIOUS HIGH COURTS INCLUDING HONBLE DELHI HIGH COURT ON THE PA RA METERS OF DISCHARGE OF ONUS CAST BY SEC. 68 HAVE BEEN RENDERED. IT IS P LEADED THAT THE ISSUE SHOULD BE SET ASIDE RESTORED BACK TO THE FILE OF ASSESSIN G OFFICER TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING TH E EVIDENCE FILED BY THE ASSESSEE AND GIVING AN OPPORTUNITY OF BEING HEARD. 3. LD. DR IS HEARD WHO SUPPORTS THE ORDER OF LD. CI T(A). 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS THE FACTS EMERGE LD. CIT(A) IN PARA 4.1 OF HIS ORDER HAS REFERRED TO THE ADDITIONAL EVIDNCE FILED BY THE ASSESSEE AND REMAND REPORT DATED 30-4- 2012 SUSBMITTED BY ASSESSING OFFICER. HOWEVER THER E IS NO FINDING AS TO ITA 2535/DEL/2013 BIHARIJI COMMODITY BROKERS PVT. LTD. VS. ITO 4 WHETHER THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED O R NOT. BESIDES IT APPEARS THAT THE ADDITIONAL EVIDENCE WHICH CONSISTS OF INCO ME-TAX RECORD CONFIRMATIONS ETC. OF THE SHARE APPLICANTS NECESSAR Y FOR DISCHARGE OF THE ONUS OF THE ASSESSEE HAS NOT BEEN CROSS VERIFIED BY ASSE SSING OFFICER FROM THE DEPARTMENTS RECORD. IN THE ABSENCE OF CONSIDERATIO N THEREOF WE ARE INCLINED TO SET ASIDE THE ISSUE BACK TO THE FILE OF ASSESSIN G OFFICER TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW AFTER GIVING THE ASS ESSEE AN OPPORTUNITY OF BEING HEARD. WE ORDER ACCORDINGLY. 5. IN THE RESULT ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 25-04-2014. SD/- SD/- ( SHAMIM YAHYA) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25-04-2014. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR