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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI ANADEE NATH MISSHRA
[A] This appeal has been filed by Revenue against the impugned appellate order dated 30.03.2016 passed by Learned Commissioner of Income Tax (Appeals)- Ghaziabad [in short, “Ld. CIT(A)”] pertaining to Assessment Year 2011- 12. The Assessee has raised following grounds of appeal :-
1. “The Ld. CIT(A) has erred in law as well as on fact in deleting addition of Rs.1,44,00,000/-when the assessee has failed to prove the capacity, identity and creditworthiness of the lenders.
The Ld. CIT(A) has erred in law as well as on fact in deleting addition of Rs.1,44,00,000/-000/- as the plethora of decisions of the Hon'ble Supreme Court and High Courts made it clear that assessee is expected to establish proof of identity of his creditors, capacity of creditors to advance money and genuineness of the transactions.
The Ld. CIT(A) has erred in law as well as on fact in deleting addition as per provision to section 2(22)(e) of the I.T. Act of Rs.1,13,83,287/-(14941811 - 3558524) when assessee is having substantial interest in the companies from where loan was taken. 4. The Ld. CIT(A) has erred in law as well as on fact in deleting addition as per provision to section 2(22)(e) of the I.T. Act of Rs. 1,13,83,287/-(14941811 -3558524) when assessee was not filed any explanation during the course of assessment proceedings despite specific query by notice U/s 142(1) dated 20.03.2016. 5. Therefore, the order of Ld. CIT(A) may be set aside
and that of the AO be restored.”
[B] Vide the assessment order dated 31.03.2014 passed u/s 143(3) of Income Tax Act, the total income of the assessee was determined at 4,47,87,971/-, rounded off to 4,47,87,970/- (and agricultural income of Rs. 2,70,000/- for rate purposes) as against returned income of Rs. 17,01,775/-. The relevant portion of the assessment order is reproduced as under :-
[C] The Assessee filed appeal before the Ld. CIT(A) who, vide impugned appellate order dated 30.03.2016 allowed partial relief to the assessee while he sustained additions of Rs. 1,44,00,000/- made u/s 68 of Income Tax Act and Additions of Rs. 1,13,83,287/- as deemed dividend u/s 2(22)(e) of Income Tax Act. The relevant portion of the aforesaid impugned appellate order dated 30.03.2016 of the Ld. CIT(A) is reproduced as under :-
[D] This present appeal before us was filed by Revenue against the aforesaid impugned appellate order dated 30.03.2016. At the time of hearing before us, Revenue was represented by Learned Senior Departmental Representative, Ms. Rakhi Vimal. However, the assessee was neither present in person nor was represented by any Authorised Representative. On an earlier date of hearing fixed on 11.04.2018 hearing was adjourned, at the written request of Sh. Sumit Bajaj, Advocate. On subsequent dates of hearings fixed on 25.09.2018, 17.12.2018, 13.08.2019, 13.05.2019, 08.07.2019, 16.09.2019 and 04.11.2019 also; neither the assessee was present in person nor was represented by any Authorised Representative. In the absence of any representation from the assessee’s side we are deciding this appeal after hearing the Learned Senior Departmental Representative (“Ld. Sr.DR” for short), in accordance with Rule 25 of Income Tax (Appellate Tribunal) Rules, 1962. At the time of hearing, the Ld. Departmental Representative drew our attention to the fact that nowhere in the impugned appellate order dated 30.03.2016 of the Ld. CIT(A), has the Ld. CIT(A) mentioned, that he has admitted the additional evidences furnished by the assessee during the appellate proceedings before the Ld. CIT(A). Yet, even without specifically admitting the additional evidences furnished by the assessee during appellate proceedings before the Ld. CIT(A), partial relief has been granted by Ld. CIT(A) to the assessee on the basis of additional evidences. She submitted that the Additional Evidences furnished by the assessee during the appellate proceedings before the Ld. CIT(A) should be ignored in the absence of specific admission of the same by the Ld. CIT(A), and the order of the Assessing Officer should be upheld. [D.1] After hearing the Ld. DR and on perusal of the records, we find that the Ld. CIT(A) has indeed allowed partial relief to the assessee on the basis of Additional Evidences furnished by the assessee during appellate proceedings before Ld. CIT(A). However, we find no specific mention in the impugned appellate order dated 30.03.2016 of the Ld. CIT(A) to the effect that the Additional