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Income Tax Appellate Tribunal, DELHI ‘SMC’ BENCH, NEW DELHI
Before: SHRI H.S. SIDHU
This appeal is filed by the assessee against the order of the Ld. Commissioner of Income Tax [Appeals-20], New Delhi dated 21.02.2018 pertaining to assessment year 2009-10 on the following grounds:- “
1. That the ex-parte orders passed U/S 147 1 144 of the Income Tax Act, 1961 on 05.12.2016, is perverse to the provisions of law and facts of the case, because of not invoking independently the provisions of law contained u/s 147 of the Act, as the same was invoked only on the borrowed information received from the Investigation Wing of the Deptt. which the Ld. CIT(A) has failed to appreciate.
2. That the order passed u/s 147/144 of the Income Tax Act, 1961 on 05.12.2016 is further illegal as not tenable because of the non-receipt service of any notice claimed to be issued U/S 148 of the I.T. Act, which has further not been considered by the Ld. CIT(A) while passing the appellate orders on 21.02.2018.
3. That the orders passed U/S 147/144 of the I.T. Act was further perverse to the law and to the facts of the case, because of the non-issuance of any mandatory notice U/S 143(2) of the Act prior to complete the ex-parte assessment proceedings, which has also not been considered by the Ld. CIT(A)
4. That the additions made of Rs. 2,90,789/- in the income of the appellant was further not justified, as the appellant has already disclosed / reflected the said amount as refund of security from M/s Pratibha Industries, for which confirmation of accounts, copies of bank 'statement, copies of Balance Sheets of the preceding and for the Assessment Year 2009-10 were also filed before the CIT(A) which she has failed to consider while upholding the additions of Rs. 2,90,789/- in the hands of the appellant.
5. That the order passed by the Ld. CIT(A) was further not tenable under the law and to the facts of the case, as she was having her opinion, that because of the said amount of Rs. 2,90,789/- for the refund of security amount is not specifically reflected/ credited in the bank accounts of the appellant, therefore, the additions made by the Assessing Officer was justified, though the appellant explained that the payment received in running account from M/s Pratibha Industries includes the amount of Rs. 2,90,789/- as refund of security.
6. That the appellant was not afforded any reasonable and proper opportunity by the Assessing Officer to explain the difference in the gross receipts of Rs. 2,90,789/- which was factually the amount as refund of security deducted earlier.
That ex-parte orders passed were illegal against the law and to the facts of the case, because of forming his opinion by the Assessing Officer, that as per the information passed over to him, the appellant has received the gross contract amount of Rs. 14637708/- from M/s Pratibha Industries, out of which he has declared only the gross contract amount of Rs.1,43,38,920/-, as such the difference of Rs. 298601/- was added in the income of the appellant. 8. That the Ld. CIT(A) has failed to consider the confirmation filed and placed upon records by M/s Pratibha Industries, confirming that they have paid Rs. 1,46,37,708/- to the appellant (gross contract receipts of Rs. 1,43,38,920/- and refund of security amount of Rs. 2,98,789/-) total of which comes to Rs. 1,46,37,708/-. In support of which the appellant has also filed the copies of Balance Sheets, Bank Statements, but the same were not controverted while passing the appellate orders. 9. That prior to pass the appellate orders, the CIT(A) has not collected any material which could support the upholding of Rs. 2,98,789/- in the hands of the appellant. 10. That the penalty proceedings initiated U/S 271(1)(c) and interest charged U/S 234B of the Act while completing the order was further not in consonance of the illegal and impugned additions made in the hands of the appellant while finalizing the order. 11. That the appellant assessee assails his right to amend, alter, change any grounds of appeal
at any time even at the stage of hearing of the instant appeal. PRAYER:- It is, therefore, prayed that:
1. That the proceedings commenced and concluded U/S 147 / 144 of the Income Tax Act, 1961 vide orders dated 05.12.2016 which upheld by the Ld. CIT(A), may please be quashed / cancelled.
2. That alternatively the illegal and impugned additions made of Rs. 2,90,789/- in the declared income of the appellant may also be deleted / quashed.
3. That the interest charged U/S 234B and penalty initiated u/s. 271(1)(c) of the Act, may also be waived being consequential to the illegal and impugned additions made and relief claimed therefrom.
4. That any other relief which this Hon'ble Court may please be deemed fit and proper on the facts and in the circumstances of the case. It is prayed accordingly.”
2. At the time of hearing, Ld. Counsel for the assessee draw my attention towards the ground no. 2 which was also raised by the assessee before the Ld. CIT(A) in which the assessee has challenged the non-receipt / service of any notice which alleged and claimed to be issued or ever served u/s. 148 of the I.T. Act, 1961 and thereafter/ consequently u/s. 142(1) of the Income Tax Act, 1961, prior to pass such orders. Ld. Counsel for the assessee stated that Ld. CIT(A) has not adjudicated the same and requested that the legal issue as well as other issues raised in the grounds of appeal before the Ld. CIT(A) may be decided afresh, after giving adequate opportunity of being heard to the assesee. In support of his contention, he has filed the copy of written submissions with supporting case laws and a Paper Book containing pages 1-13 to substantiate his case.
3. On the contrary, Ld. DR relied upon the orders of the authorities below and also filed written submissions. He controverted the arguments advanced by the Ld. Counsel for the assessee and stated that AO has issued all the notices as per law and completed the assessment after hearing the assessee and requested that the appeal filed by the assessee may be dismissed.
4. I have heard both the parties and perused the orders of the revenue authorities, written submission of both the parties and the case laws relied therein as well as Paper Book containing pages 1- 13 in which he has attached the copy of ITR filed for the AY 2009-10 (Annexure-A); copy of balance sheet, profit and loss account as on 31.3.2009 (AY 2009-10) (Annexure B&C); copy of ledger a/c confirmed by M/s Pratibha Industries for the year 1.4.2008 to 31.3.2009 relating to the payment made to Mr. Nayyar Ali and copy of confirmation of account issued by M/s Pratibha Industries for the financial year 2008-09, confirming that they have paid the total amount of Rs. 1,46,37,708/- during the year (Rs. 1,43,38,920/- for the job done by Mr. Nayyar Ali and Rs,. 2,98,601/- towards the refund of his security amount). I have also perused the impugned order and of the view that assesse has raised ground no. 2 before the Ld.CIT(A) which is reproduced as under:-
2. That the order passed u/s. 147/144 of the Income Tax Act, 1961, on 05.12.2016, is further illegal as not tenable because of the non-receipt / service of any notice, which alleged and claimed to be issued or ever served u/s. 148 of the Act, and thereafter/ consequently u/s. 142(1) of the Income Tax Act, 1961, prior to pass such orders.