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Income Tax Appellate Tribunal, DELHI ‘G’ BENCH,
Before: SHRI N.K. BILLAIYA, & SHRI ANUBHAV SHARMA
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:-
The above captioned appeals by the Revenue are preferred
against the common order of the ld. CIT(A) -23, New Delhi dated
23.08.2016 pertaining to Assessment Years 2012-13 to 2014-15.
Since common grievance is involved in all the captioned three
appeals, they were heard together and are disposed of by this common
order for the sake of convenience and brevity.
The common grievance is that the ld. CIT(A) erred in deleting the
addition made on account benefit/perquisite u/s 2(24)(iv) of the
Income-tax Act, 1961 [hereinafter referred to as 'The Act'] and further
erred in holding that provisions of section 115BE of the Act cannot be
invoked.
Briefly stated, the facts of the case are that search was carried
out on 09.09.2010 in the M/s Amrapali Group of cases, which included
the assessee and a fresh search was carried out on 07.08.2013, again in
the case of Amrapali Group including the assessee. Pursuant to the
notice u/s 153A of the Act, the assessee was asked to file return of
income for which the assessee stated that the return filed u/s 139 of
the Act may be treated as return filed in response to notice u/s 153A
of the Act.
During the course of scrutiny assessment proceedings, the
Assessing Officer noticed that the assessee has shown receipt of
advance against property from M/s Amrapali Infrastructure Pvt Ltd.
The assessee was show cause to submit details of property against
which these advances have been received and further explain as to
why not the benefit as determined by taking rate of interest @ 6% p.a.
and should be added to his total income for the year under
consideration.
In its reply, the assessee stated that facts do not invoke
application of section 2(22)(iv) of the Act and further pointed out that
similar additions were made in earlier years and the same were
deleted by the ld. CIT(A) and the Tribunal has decided the issue.
The reply of the assessee was dismissed by the Assessing Officer
who, invoking the provisions of section 2(22)(iv) of the Act, estimated
the benefit by taking rate of interest @ 6% p.a. and made the
impugned addition.
The assessee carried the matter before the ld. CIT(A) and the ld.
CIT(A), while deciding the ground in the captioned Assessment Years,
held as under:
“4.4 Ground No.4(a) in all the years is the substantive ground relating to the only addition made of Rs.21006124/- in all the three years on account of alleged benefit/perquisite under section 2(24)(iv) of the Act. The issue involved is similar to the facts of the case considered by me in the case of Sh. Anil Kumar Sharma vide my order, of even date in ITA. Nos. 113, 120 & 108/16-17 for AYs 2012-13 to 2014-15 at para-4.4 wherein I have deleted similar addition made for reasons mentioned therein. The addition in this case for all the three assessment years are also hereby deleted. This ground is accordingly allowed.”
Nobody appeared on behalf of the assessee inspite of repetitive
notices since 23.07.2019. We, therefore, decided to proceed exparte.
The ld. DR, referring to the findings of the ld. CIT(A), drew our
attention to the decision of the Tribunal in the case of Anil Kumar
Sharma in ITA Nos. 5597 to 5599/DEL/2016 for Assessment Years 2012-
13 to 2014-15 and pointed out that the impugned issue has been set
aside by the Tribunal.
We have given thoughtful consideration to the orders of the
authorities below. We find that the ld. CIT(A) has not given any
independent finding but has simply followed his decision in the case of
Anil Kumar Sharma for the captioned Assessment Years.
We find that this Tribunal, vide order dated 17.02.2020, in the
case of Anil Kumar Sharma [supra] had the occasion to consider the
following grievance:
“1. The order of Id. CIT (A) is not correct in law and on facts.
On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs.4,64,50,348/- was made on account of ‘Benefit/perquisite u/s.2(24(iv) of the Income Tax Act, 1961.
That on the facts and circumstances of the case, Ld. CIT(A) has erred in holding that provisions of Section 115BBE of the Act cannot be invoked.
The appellant crave leave to add, amend any/all the ground of appeal before or during the course of hearing of the appeal.”
It can be seen from the above that the grounds of appeal are
identical to the grounds of appeal taken in the present appeals. After
considering the facts, the Tribunal held as under:
“6. Thus, respectfully following the aforesaid precedent in assessee’s own case, we restore all this issues raised before us to the file of the Assessing Officer for reconsideration as per the direction of the Tribunal.
In the result, all the appeals of the assessee are allowed for statistical purposes.”
On finding parity of facts, respectfully following the decision of
the Tribunal, the captioned appeals are set aside to the file of the
Assessing Officer with a direction that the impugned issue has to be
decided in line with the decision taken in the case of Anil Kumar
Sharma [supra].
In the result, the appeals of the Revenue in ITA Nos. 5593 to 5595
/DEL/2016 are treated as allowed for statistical purposes.
The order is pronounced in the open court on 17.01.2023.
Sd/- Sd/-
[ANUBHAV SHARMA] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 17th January, 2023.
VL/