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Income Tax Appellate Tribunal, DELHI BENCH ‘B’, NEW DELHI
Before: Sh. H. S. SidhuDr. B. R. R. Kumar
Per Dr. B. R. R. Kumar, Accountant Member:
The present appeal has been filed by the assessee against the order of ld. CIT (A)-30, New Delhi dated 23.02.2017.
Following grounds have been raised by the assessee: “1. Under the facts and circumstances of the case, the orders passed by the ld. CIT (A) are bad at law being not in accordance with the statutory provisions contained in section 250 of the Income Tax Act, 1961.
2. Under the facts and circumstances of the case, the orders passed by the ld. First Appellate Authority is grossly in contradiction to the directions of the Hon’ble ITAT given vide order dated 19.08.2015.
3. Under the facts and circumstances of the case, the orders passed by the ld. First Appellate Authority has grossly in directing the AO to verify the genuineness of share capital/premium of Rs.1,83,35,000/- received from M/s HBN Dairies & Allied Limited & family members of 2 Complete News & Entertainment Broadcasting (P) Ltd. Shri H. S. Sran, instead of directly deleting the addition of the said amount when all records were produced before him, which is grossly injudicious, unwarranted, beyond his powers, against the facts of the case and bad at law.
4. Under the facts and circumstances of the case, addition of Rs.1,83,35,000/- made by the ld. AO to the returned income is injudicious, unwarranted & bad at law.”
Brief facts of the case are that the ld. CIT (A)-30, New Delhi passed the order in Appeal No. 280/11-12/965, vide order dated 01.04.2013 and the ld. CIT (A) has partly allowed the appeal of the assessee. The assessee has contested the further appeal before the ITAT, Delhi ‘B’ Bench, New Delhi against the ld. CIT (A)’s order dated 01.04.2013, in Appeal No. 280/11-12/965, the ITAT has decided the appeal in vide order dated 19.08.2015. The relevant portion is reproduced as under: “A perusal of the above demonstrates that the ld. CIT (A) instead of obtaining a remand report from the Assessing Officer as per the statutory mandate in order to conclusively decide the issue instead restored the issue to the Assessing Officer contrary to the statutory mandate. In view of this obvious statutory violation, the impugned order cannot be upheld. The issues are interlinked and the findings arrived at it is seen is without considering the relevant material on record. Accordingly, in view of the afore-mentioned factual position, legal mandate and considering the submissions of the parties before the Bench, we deem it appropriate to set aside the impugned order and restore the issues back to the file of the ld. CIT (A) with the direction to pass a speaking order in accordance with the law after giving the assessee a reasonable opportunity of being heard. In view of the above, the grounds raised by the assessee and the department both stand allowed for statistical purposes as per the pronouncement made in the open Court at the time of hearing.”
A search and seizure operation u/s 132 of the Income Tax Act, 1961 was carried out in the cases of HBN Group on 20.11.2009 including the assessee company. Thereafter, the assessment of the assessee company was concluded vide order dated 30.12.2011 passed u/s 153A of the Act,
3 Complete News & Entertainment Broadcasting (P) Ltd. wherein the Assessing Officer made addition of Rs.3,08,00,000/-. The said amount consists of monies received as under: a) HBN Dairies & Allied Ltd. 1,51,40,000 b) Family Members of Mr. H.S. Sran 31,95,000 c) Other outside parties 1,24,65,000
Before the ld. CIT (A), the assessee submitted the following documents pertaining to the amount received from HBN Dairies & Allied Ltd. of Rs.1,51,40,000 a) Confirmation from M/s HBN Dairies & Allied Ltd. b) Copy of ITR of M/s HBN Dairies & Allied Ltd. for the A.Y. 2007-08 c) Ledger account of Investment in CNEB in books of HBN Dairies & Allied Ltd. d) Bank statement of HBN Dairies & Allied Ltd. e) Copy of Balance Sheet of HBN Dairies & Allied Ltd. f) Assessment order of HBN Dairies & Allied Ltd.
The assessee submitted the following documents with regard to Rs.31,95,000/-: a) Confirmation from aforesaid family member of Mr. H.S. Sran b) Copy of ITR c) Bank statement reflecting relevant transaction d) Assessment order passed u/s 153A of the Act
The assessee has not submitted any documents with regard to monies received from other parties of Rs.Rs.1,24,65,000/-.
The ld. CIT (A) has directed the Assessing Officer to examine the claim of the assessee to verify genuineness of the claim of the receipt of money of Rs.1,83,35,000/- (Rs.1,51,40,000 + Rs.31,95,000) and confirmed the addition of Rs.1,24,65,000/- for which no details have been filed before the ld. CIT (A).
Before us, during the arguments, the ld. CIT DR supported the order of the ld. CIT (A) and since nobody represented on behalf of the assessee, the order is being passed based on the facts available on record.
4 Complete News & Entertainment Broadcasting (P) Ltd.
We find that the ld. CIT (A) has remanded the matter to the file of the Assessing Officer for verification of the genuineness of the share capital which is in contravention with direction given by this Tribunal. The Tribunal in the earlier order has directed the ld. CIT (A) to obtain the remand report from the Assessing Officer and pass a speaking order which has not been followed by the ld. CIT (A). The ld. CIT (A) has restored the matter to the file of the Assessing Officer which is in contravention with the statutory position as well as the directions of the Tribunal. Hence, the action of the ld. CIT (A) on this account cannot be upheld and the matter is remanded back to the ld. CIT (A) to decide the issue after obtaining the remand report.
Regarding the amounts received from other parties of Rs.1,24,65,000/-, since no details has been filed by the assessee before the ld. CIT (A) as per the records, we hold that since the assessee has not discharged even the primary onus and failed to prove the identity, genuinity and creditworthiness, the action of the ld. CIT (A) is not interfered with.
In the result, the appeal of the assessee is allowed. Order Pronounced in the Open Court on 29/01/2020.