Adonis Infrastructure Pvt Ltd, New Delhi v. ITO WARD - 1(3), New Delhi

MA 275/DEL/2020 | 2010-2011
Pronouncement Date: 08-03-2021 | Result: Allowed

Appeal Details

RSA Number 27520124 RSA 2020
Bench Delhi
Appeal Number MA 275/DEL/2020
Duration Of Justice 3 month(s) 5 day(s)
Appellant Adonis Infrastructure Pvt Ltd, New Delhi
Respondent ITO WARD - 1(3), New Delhi
Appeal Type Miscellaneous Application
Pronouncement Date 08-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 08-03-2021
Assessment Year 2010-2011
Appeal Filed On 03-12-2020
Judgment Text
1 M.A NO. 275/DEL/2020 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SH. G. S. PANNU VICE PRESI DENT AND MS SUCHITRA KAMBLE JUDI CIAL MEMBER MA NO. 2 75/DEL/2020 IN ( I.T.A. NO. 4455/DEL /2019 (A.Y 2010-11) (THROUGH VIDEO CONFERENCING) M/S ADONIS INFRASTRUCTURE PVT. LTD. D-16 KAMLA NAGAR NEW DELHI-110007 (APPLICANT) VS ITO WARD-1(3) NEW DELHI (RESPONDENT) APPLICANT BY SH. VED JAIN ADV & SH. ASHISH GOEL ADV RESPONDENT BY SH. VED PRAKASH MISHRA SR. DR ORDER PER SUCHITRA KAMBLE JM THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE IN COME-TAX ACT 1961 IN RESPECT OF ORDER DATED 10.11.2020. 2. THE LD. AR SUBMITTED THAT IN THIS APPEAL THE ASS ESSEE COMPANY HAS CHALLENGED REOPENING OF THE ASSESSMENT AS WELL AS A DDITION SUSTAINED ON MERIT UNDER SECTION 68 ON THE GROUND THAT ASSESSEE HAS NO T FILED SOURCE OF SOURCE OF THE INVESTMENT IN THE ASSESSEE COMPANY. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE IN ORDER TO JUSTIFY THE SOURCE OF SOUR CE OF INVESTMENT IN ASSESSEE FILED ADDITIONAL EVIDENCES IN THE FORM OF FAMILY SE TTLEMENT AGREEMENT AND BANK STATEMENTS ETC. UNDER RULE 29 OF THE ITAT RULES. TH E LD. AR SUBMITTED THAT AT DATE OF HEARING 15.01.2021 DATE OF PRONOUNCEMENT 08 .03.2021 2 M.A NO. 275/DEL/2020 THE TIME OF HEARING THE BENCH FIRST RAISED THE ISSU E OF ADMISSION OF ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AND AFTER HEARING A RGUMENTS FROM BOTH THE SIDES ON ADMISSION OF ADDITIONAL WAS OF THE VIEW T HAT THESE ADDITIONAL EVIDENCES BE ADMITTED. SINCE THESE ADDITIONAL EVIDE NCES WERE TO BE EXAMINED BY THE ASSESSING OFFICER THE BENCH DECIDED THAT TH E MATTER BE REMITTED BACK TO THE ASSESSING OFFICER. THE LD. AR SUBMITTED THAT TH E BENCH THEN SPECIFICALLY ASKED THE AR OF THE ASSESSEE WHETHER HE WILL LIKE T O KEEP THE ISSUE OF REOPENING UNDER SECTION 147 OPEN TO WHICH THE AR MR. VED JAI N CATEGORICALLY STATED THAT YES HE WILL LIKE THE ISSUE OF REOPENING OPEN. THE LD. AR SUBMITTED THAT NO ARGUMENTS WERE MADE FROM BOTH SIDE ON THE ISSUE OF REOPENING OF ASSESSMENT UNDER SECTION 147. THE LD. AR SUBMITTED THAT IN THE ORDER PASSED BY THE BENCH HOWEVER THE GROUND ON REOPENING HAS BEEN DIS MISSED BY MAKING FOLLOWING OBSERVATIONS IN PARA 7 OF THE ORDER:- 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE RECORDS IT CAN BE SEEN THAT THE APPROVAL IN RESPECT OF REASONS GIVEN BY THE ASSESSING OFFICER F OR REOPENING ARE JUST AND PROPER AND AS PER THE PROVISIONS OF THE INCOME TAX ACT 1961. AS THE CASE LAWS REFERRED BY THE LD. AR ARE DISTINGUISHABLE AS IN THOSE CASE LAWS THE REASONS AND THE COMPETENT AUTHORITY HAS NOT GIVEN A N APPROVAL AS PER THE PROVISIONS OF SECTION 147/148. THEREFORE THE LEGAL ISSUE RAISED BY THE ASSESSEE DOES NOT STAND AND IS DISMISSED. ON MERITS THE LD. AR SUBMITTED THAT THERE IS AN ADDITIONAL EVIDENCE WHICH WAS OBTA INED AFTER ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS BEFORE CIT(A) WAS OVER. THEREFORE IT WILL BE APPROPRIATE TO LOOK INTO THE ADDITIONAL EVI DENCE. WHILE GOING THROUGH THE ADDITIONAL EVIDENCE WE NOTICED THAT THESE ARE THE PRIMARY EVIDENCES WHICH WILL SHOW THE CREDITWORTHINESS OF THE SOURCE OF SOURCE WHICH WAS ASKED BY THE ASSESSING OFFICER AS WELL AS CIT(A). THEREFO RE WE ARE ADMITTING ADDITIONAL EVIDENCE AND REMANDING BACK THE ENTIRE I SSUE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING THIS ADDITIONAL EVI DENCE AND AFTER GOING THROUGH THE SAID EVIDENCE ARRIVE AT A PROPER CONCL USION AS TO WHETHER THE 3 M.A NO. 275/DEL/2020 ADDITION IN RESPECT OF SECTION 68 IS SUSTAINABLE OR NOT. NEEDLESS TO SAY THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWI NG PRINCIPLES OF NATURAL JUSTICE. THUS THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. THE LD. AR SUBMITTED THAT THE ABOVE OBSERVATIONS MA DE IN THIS PARA ARE FACTUALLY INCORRECT.IN THE ABOVE PARA THE BENCH HA VE DISMISSED THE LEGAL ISSUES RAISED IN THE APPEAL BY THE ASSESSEE IN RESPECT OF REOPENING OF ASSESSMENT PROCEEDINGS DESPITE THE FACT THAT NEITHER ANY LEGAL ARGUMENT WAS TAKEN BY THE ASSESSEE AS WELL AS LEARNED DR AT THE TIME OF HEARI NG NOR THE BENCH HAS RAISED ANY QUESTION ON LEGAL ISSUES INVOLVED IN THE APPEAL . IN THIS CASE AS STATED HEREIN ABOVE THE APPLICANT HAS FILED THE APPLICATI ON FOR ADDITIONAL EVIDENCES UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963 BEFORE THE BENCH. THESE EVIDENCES WERE RELATED TO THE MERITS O F THE ISSUE INVOLVED IN THE APPEAL. AT THE TIME OF HEARING LEARNED COUNSEL FOR THE ASSESSEE MADE THE PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCES AND AC CORDINGLY THE BENCH AS STATED IN THE LATER PART OF THE ABOVE PARA OF THIS ORDER WAS OF THE VIEW THAT THE ISSUE NEED TO BE SET-ASIDE TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE ADDITIONAL EVIDENCES. HOWEVER NO ARGUMENT WAS TAKE N BY THE COUNSEL OF THE ASSESSEE AS WELL AS BY THE DR ON THE LEGAL ISSUES R AISED IN THE APPEAL. AN AFFIDAVIT OF THE AR MR. VED JAIN IN SUPPORT OF THE ABOVE FACTS IS ENCLOSED WITH THIS APPLICATION. IN VIEW OF THE ABOVE FACTS IT IS SUBMITTED THAT THE OBSERVATIONS IN THE ABOVE PARA DISMISSING THE LEGAL ISSUES INVOL VED IN THE APPEAL HAVE BEEN INADVERTENTLY TYPED IN THIS ORDER AS NO SUCH ARGUME NTS BY BOTH SIDES I.E. AR AND DR ON LEGAL ISSUES WERE MADE DURING THE HEARING . IN VIEW OF THE ABOVE FACTS THE MISTAKE IN THE FINDINGS OF THE BENCH STA TED IN PARA 7 OF THE ORDER PASSED BY THE BENCH NEEDS TO BE MODIFIED /DELETED. 3. THE LD. DR OPPOSED THE MISC. APPLICATION BUT COU LD NOT CONTROVERT THE FACT THAT THE LEGAL ISSUES WERE NOT DISCUSSED AT TH E TIME OF HEARING. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL T HE RELEVANT MATERIAL 4 M.A NO. 275/DEL/2020 AVAILABLE ON RECORD. FROM THE NOTING OF THE ARGUMEN TS WE CAN MAKE OUT THAT THE LEGAL ISSUE WAS NOT DISCUSSED AT THE TIME OF HE ARING AND IT IS INADVERTENTLY DISMISSED IN THE ORIGINAL ORDER. THEREFORE WE ARE MODIFYING THE PARA 7 OF THE ORDER DATED 10.11.2020. PARA 7 MAY BE READ AS UNDER : 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SINCE THE LEGAL ISSUES WERE NOT DISCUSSE D HENCE WE ARE NOT ADJUDICATING THE SAME AT THIS JUNCTURE. ON MERITS THE LD. AR SUBMITTED THAT THERE IS AN ADDITIONAL EVIDENCE WHICH WAS OBTAINED AFTER ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS BEFORE CIT(A) WAS OVER. THEREFORE IT WILL BE APPROPRIATE TO LOOK INTO THE ADDITIONAL EVI DENCE. WHILE GOING THROUGH THE ADDITIONAL EVIDENCE WE NOTICED THAT THESE ARE THE PRIMARY EVIDENCES WHICH WILL SHOW THE CREDITWORTHINESS OF THE SOURCE OF SOURCE WHICH WAS ASKED BY THE ASSESSING OFFICER AS WELL AS CIT(A). THEREFORE WE ARE ADMITTING ADDITIONAL EVIDENCE AND REMANDING BACK THE ENTIRE I SSUE TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING THIS ADDITIONAL EV IDENCE AND AFTER GOING THROUGH THE SAID EVIDENCE ARRIVE AT A PROPER CONCL USION AS TO WHETHER THE ADDITION IN RESPECT OF SECTION 68 IS SUSTAINABLE OR NOT. NEEDLESS TO SAY THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWI NG PRINCIPLES OF NATURAL JUSTICE. THUS THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSE. 5. IN RESULT MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 0 8 TH DAY OF MARCH 2021 SD/- SD/- (G. S. PANNU) (SUCHITRA KAMBLE) VICE PRESIDENT JUD ICIAL MEMBER DATED: 08/03/2021 R. NAHEED COPY FORWARDED TO: 5 M.A NO. 275/DEL/2020 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI