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Income Tax Appellate Tribunal, DELHI BENCH ‘F’, NEW DELHI
Before: SH. R.K PANDA & MS. SUCHITRA KAMBLE
This appeal filed by the assessee is directed against the 1. order dated 31.03.2015 of the CIT(A)-24, New Delhi relating to A. Y. 2010-11.
The facts of the case, in brief, are that the assessee is a private limited company engaged in the business of manufacturing and trading of sportswear and garments. A search and seizure operation u/s 132 of the IT Act was conducted on 28.10.2010 in case of the assessee. In response to notice u/s 153 A it was submitted that the return already filed u/s 139 on 25.09.2010 may be treated as return filed in response to notice
153A of the IT Act. It is pertinent to mention here that the assessee had filed the original return of income declaring total income of Rs.69,92,830/-The assessing officer completed the assessment u/s 153 A/ 143 (3) of the IT Act on a total income of Rs.1,47,57,171/- wherein he had made the following additions :-
Income as declared 69,92,830/- Add :
Disallowance of EPF penalty and CST 69,92,830/- Demand as discussed above.
2. Disallowance out of car R & M, 2,59,051/- Dep., Insurance, interest and Telephone expenses as discussed above. 1,37,727/- 3. Disallowance of bad debts 15,34,223/- discussed above. 4. Cash Credits u/s. 68, share application Money as discussed above. 58,33,340/- Total taxable income 1,47,57,171/-
In appeal the Ld. CIT(A) gave relief to the assessee on the grounds raised before him. However, the addition on account of share application money u/s 68 of the IT Act amounting to Rs.58,33,340/- was not challenged in the original grounds of appeal for which there was no adjudication on the same.
4. Aggrieved, with such order of the CIT(A), the assessee is in appeal before the Tribunal by raising various grounds challenging the addition of share application money of Rs.58,33,340/-. 2
The Ld. Counsel for the assessee at the outset referring to page 1 to 100 of the paper book submitted that assessee had made an application before the Ld. CIT(A) for admission of additional ground wherein addition of Rs.58,33,340/- was challenged. However, the Ld. CIT(A) has not adjudicated the admissibility of the additional ground and has not decided the issue.
Referring to the decision of Hon’ble Allahabad High Court in the case of Ajeet Kumar Seth Vs. CIT reported in 214 CTR 240, he submitted that the Hon’ble High Court has held that the first appellate authority should have permitted the assessee to raise the additional ground whatever its wroth may be on merits and first appellate authority cannot refuse to grant permission to raise additional ground. Relying on various other decisions, he submitted that he has no objection if the matter is restored to the file of the CIT(A) with the direction to adjudicate the additional ground raised before him.
The Ld. DR on the other hand has no objection for restoring the issue to the file of the Ld. CIT(A) to decide the admission of the additional ground raised before him.
After hearing both the sides and on perusal of the paper book filed on behalf of the asssessee we find the assessee has taken the following additional ground before the CIT(A).
“That the addition of Rs.58,33,340/- in respect of share capital is illegal and unjustified and, therefore, ought to be deleted.”
However, a perusal of the order of the ld. CIT(A) shows that there is no discussion regarding the additional ground raised
before him by the assessee. Considering the totality of the facts of the case and in the interest of justice we deem it proper to restore the matter back to the file of the Ld. CIT(A) with a direction to adjudicate the admissibility of the additional ground raised before him and decide the same. Needless to say that the Ld. CIT(A) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly.
10. In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court at the time of hearing itself on 14.02.2019.