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Income Tax Appellate Tribunal, DELHI BENCH “A” NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI Dr. B.R.R. KUMAR
PER AMIT SHUKLA, J.M.: The aforesaid appeals have been filed by the Revenue against the common impugned order dated 23.08.2016, passed by Ld. Commissioner of Income Tax (Appeals)-XXIII, New Delhi for the quantum of assessment passed u/s.153A/143(3) for the Assessment Years 2012-13, 2013-14 and 2014-15. The common grounds raised in all the appeals read as under:
“1. The order of ld. CIT (A) is not correct in law and on facts. 2. 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 2 I.T.As. No.5597, 5598, 5599/DEL/2016 account of ‘Benefit/perquisite u/s.2(24(iv) of the Income Tax Act, 1961. 3. 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. 4. The appellant crave leave to add, amend any/all the ground of appeal before or during the course of hearing of the appeal.”
At the outset, both the parties admitted that in the earlier years, similar issue had come up for consideration before the Tribunal, wherein the Tribunal has remanded back this issue to the file of the Assessing Officer.
The facts in brief are that in all the three years, Assessing Officer has noted that assessee has received advance against property from the following companies: S. No. Name of Entity/Concern Amount of advance (in Rs.) 1. M/s. Amrapali 73,19,50,557/- Infrastructure Pvt. Ltd. (Advance against property) 2. M/s. Hi tech City 4,22,21,918/- Developers Pvt. Ltd. (Advance against property) Total 77,41,72,475/-
The Assessing Officer held that the amount has been received by the assessee as a Director without any interest, and therefore, in terms of provision of Section 2(24)(iv), the interest free advance received by the Directors is to be treated as Benefit/perquisite received by him, because he is the person who has controlled the affairs of these two companies
3 I.T.As. No.5597, 5598, 5599/DEL/2016 and also other companies. Accordingly, he calculated the benefit by taking the rate of interest @ 6% per annum, which worked out to Rs.4,64,50,348/-. Ld. CIT(A) has deleted the addition on the ground that in the earlier years, this issue has been decided in favour of the assessee by the then Ld. CIT(A) wherein the addition of notional interest has been deleted and same has been affirmed by the Tribunal.
Before us, ld. DR has filed the copy of ITAT order in for the Assessment Year 2011-12 wherein the Tribunal has dealt and decided this issue by following the order of the Tribunal in Assessment Year 2009-10 in ITA No.4836/Del/2014 which reads as under:- “7. After considering the submissions of the Ld. D.R, we are of the view that the matter requires reconsideration at the level of the A.O. The Ld. CIT(A) in this case following his Order for the A.Y. 2010-2011 allowed the appeal of assessee. The Ld. D.R. however filed copy of the Order of the Tribunal Dated 26.03.2018 in the case of same assessee in which for A.Y. 2009-2010 in ITA.No.4836/Del./2014, the Tribunal has considered the similar issue in Departmental Appeal on Ground No.3 - “On the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 34,06,230/- made by the A.O. on account of benefit of perquisite under section 2(24)(iv) of the I.T. Act, 1961.” The Ld. D.R. referred to the findings of the Tribunal in para 48 of the Order which reads as under :
4 I.T.As. No.5597, 5598, 5599/DEL/2016
(iv) In view of above findings, we set aside ground No. 3 of the appeal of the revenue to the file of the Ld. assessing officer with a direction to the assessee to show before him that how the about transaction of receiving loan from a firm to the assessee free of interest where a company where the assessee is director which is provided huge interest free funds to such firm is not chargeable to tax as income under section 2(24)(iv) of the act. The Ld. AO may examine the arguments of the assessee and decide the issue afresh in accordance with the law after granting assessee adequate opportunity of hearing. Accordingly, ground No. 3 of the appeal of the revenue is allowed with above direction.” 8. The Ld. D.R, therefore, contended that the issue is covered and the matter requires reconsideration at the level of the A.O. as directed by the Tribunal above. 9. Following the reasons for decision of the Coordinate Bench of the Tribunal, we set aside the Orders of the authorities below and restore the matter in issue to the file of A.O. for reconsideration as is directed by the Tribunal vide Order dated 26.03.2018 (supra). The Departmental appeal is allowed for statistical purposes. However, the Cross Objection of the assessee is dismissed as has become infructuous because it was filed merely in support of the Order of the Ld. CIT(A) which is set aside.”
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 5 I.T.As. No.5597, 5598, 5599/DEL/2016 reconsideration as per the direction of the Tribunal.
In the result, all the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open Court on 17th February, 2020.