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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’, NEW DELHI
Before: SH. R.K PANDA
This appeal filed by the assessee is directed against the order dated 07.11.2013 of the CIT(A)-IV, New Delhi relating to A. Y. 2005-06.
The facts of the case, in brief, are that the assesee is a company and is engaged in the business of real estate. The original return of income in the instant case was filed on 31.10.2005 declaring loss of Rs.9,69,924/-. Subsequently, on the basis of information received from the office of the CIT(Central)-II, New Delhi that the assessee company was one of the beneficiary who has taken accommodation entry of Rs.10 lacs from M/s. Stellar Investment Limited vide pay order No.760603 dated 30.07.2004, the Assessing Officer reopened the assessment by recording reasons and issue of notice u/s 148 of the IT Act.
Rejecting the various explanation given by the assessee and observing that the assessee failed to establish the genuiness of the transaction, the Assessing officer made addition of Rs.10 lacs u/s 68 of the IT Act.
In appeal the Ld.CIT(A) upheld the action of the Assessing Officer and rejected the arguments of the assessee both on merit as well as on legal ground challenging that the notice issued u/s 148 is barred by limitation u/s 149 (1) (b) of the IT Act.
Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal by raising following grounds :-
“1) The learned Commissioner of Income Tax (Appeals) has erred both on facts and in law in upholding the action of the learned Assessing Officer in making an addition of Rs.10,00,000/- u/s 68 of the Income tax Act, 1961 allegedly on the ground that the genuineness of the transaction could not be established.
2) That on the facts and in the circumstances of the appellant company the learned Commissioner of Income Tax (Appeals) has erred both on facts and in law in rejecting the additional evidence filed in terms of Rule 46A of the Income tax Rules, 1962 after calling for the remand” report from the learned Assessing Officer and thereby not following the decision of the Hon'ble Tribunal in the case of Shah Rukh Khan Vs. DCIT reported in 13 SOT 61 (Mum.).
3) The appellant craves leave to add, alter or amend the ground of appeal at a later stage.”
5. The assessee has also taken the following additional grounds :-
2.1 That on the facts and in the circumstances of the appellant company it is aggrieved as the AO has incorrectly assumed jurisdiction u/s 147 of the Act and the order passed u/s 147/148 is invalid in law on account of the following legal issues:-
2.1.1 That necessary satisfaction on the reasons recorded by A.O. as required u/s 151(2) has not been recorded by the Addl. CIT, Range 1, New Delhi and therefore the assumption of jurisdiction u/s 147 is not valid and consequently the assessment is invalid.
2.1.2 That in the absence of notice u/s 143(2) read with Section 148 being issued and served on the appellant company the reassessment proceedings and consequential assessment order u/s 147/143(3) is without jurisdiction and unsustainable in law. 2 2.1.3 That the reasons recorded for assuming jurisdiction u/s 147 are vague incomplete and have no nexus with material on record that income of the appellant company has escaped assessment and therefore there was no reason to believe for the A.O. to assume jurisdiction u/s 147.”
The Ld. Counsel for the assessee submitted that omission of the above grounds was due to a clerical mistake in the office and therefore be admitted. Relying on the decision of Hon’ble Supreme Court in the case of NTPC Vs. CIT reported 229 ITR 383, Jute Corporation of India Limited reported in 187 ITR 688 and various other decisions he submitted that these grounds being legal grounds and no fresh facts are required to be investigated, therefore, these grounds should be admitted.
After hearing both the sides and considering the fact that the grounds raised
by the assessee are purely legal in nature and no fresh facts are required to be investigated, the additional grounds raised by the assessee are admitted.
8. I have considered the rival arguments made by both the sides and perused the material available on record. I find the Assessing Officer in the instant case has reopened the assessment us/ 147 / 148 of the IT Act on the ground that the assessee has received accommodation entry of Rs. 10 lacs from M/s. Stellar Investment Ltd. and assessee failed to discharge its onus regarding genuiness of such transactions. I find the Ld. CIT(A) while upholding the action of the Assessing Officer did not consider certain additional evidences filed before him. The assessee in the legal grounds has mentioned that no notice u/s 143 (2) of the IT Act was issued to the assessee and that the satisfaction by the additional CIT(A) was given in a mechanical manner. Since the Ld. CIT(A) has not accepted the additional evidences, therefore, considering the totality of the facts of the 3 case and in the interest of justice I deem it proper to restore this issue to the file of the CIT(A) with the direction to admit the additional evidences and decide the issue as per fact and law. The Ld. CIT(A) shall also decide the additional grounds raised by the assessee which were not raised before him while deciding the appeal if he deems it proper. The grounds raised by the assessee are accordingly allowed for statistical purpose.
9. In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open court on 21.02.2019.