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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
Before: SHRI H.S. SIDHU
The Assessee has filed the Appeal against the impugned Order dated 27.09.2016 of the Ld. CIT(A)-I, Noida pertaining to assessment year 2012-13 on the following grounds:-
1. It is contended that the order passed by the CIT(A) is void abinitio as the same has been passed without affording sufficient opportunity to the appellant for compliance of appellate proceedings.
2. The enhancement of income by Rs. 33,29,52,203/- by CIT(A) is without jurisdiction.
On the facts and circumstances of the case, the enhancement of income by a sum of Rs. 4,94,001/- as negative reserves and surplus is wrong.
The addition u/s. 68 of the Act on account of short term borrowings aggregating to Rs. 12,75,50,000/- is wrong and is opposed to the mandate of section 68 of the Act.
5. The observation of CIT(A) “there being no explanation for the same or the explanation given before the AO being unsatisfactory” is opposed to evidences on record and the addition of Rs. 12,75,50,000/- may please be deleted.
The finding of the CIT(A) that “the appellant has no land owned by it and, therefore, it could not have sold any plot / land” is opposed to evidences on record.
7. The CIT(A) has erred in holding “The appellant also did not provide any explanation regarding the source of investment in working progress of Rs. 20,49,08,002/- is opposed to evidences on record.
It is contended that the provisions of section 69 of the Act are not applicable to the impugned sum of Rs. 20,49,08,002/-.
The CIT(A) has erred in discovering new sources of income and the order of enhancement is without jurisdiction.
That the above grounds of appeal are independent and without prejudice to one another.
Your appellant craves leave to add, alter, amend or withdraw any of the grounds of appeal at the time of hearing.
The facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of convenience.
3. At the time of hearing, Ld. Counsel for the assessee has stated that Ld. First Appellate Authority has passed the exparte order without considering the submissions made by the assessee in totality. He further stated that assessee has filed all the necessary documentary evidences in the shape of Paper Book containing pages 1 to 518 filed before the Tribunal and other relevant evidences for substantiating the claim in dispute before the Ld. CIT(A), but the Ld. CIT(A) has not considered the same. He also stated that the assessee is having all the evidences for substantiating his claim, therefore, he requested that the issues in dispute may be set aside to Ld. CIT(A) with the directions to decide the same afresh, after considering all the evidences filed by the Assessee and give adequate opportunity of being heard to the assessee.
On the contrary, Ld. DR relied upon the order of the authorities below.
6. I have heard both the parties and perused records, especially the impugned order. I find considerable cogency in the contention raised by the Ld. Counsel of the assessee that Ld. First Appellate Authority has passed the exparte order without properly considered the submissions of the assessee. I further note that assessee has filed all the necessary documentary evidences for substantiating its claim in dispute before the lower authorities, but the Ld. CIT(A) has not considered the same. Before me, the Ld. Counsel of the assessee has filed a Paper Book containing pages 1 to 518 in which he has attached the copy of income tax return and computation; balance sheet and profit and loss account; letter dated 23.1.2015 filed before AO giving details of WIP and submission of evidences for unsecured loan of Rs. 12.75 crores alongwith confirmation and bank statement Greenfield Estate; letter dated 13.2.2015 filed before AO giving break up of WIP and title deed of land of the project under work in progress; letter dated 20.2.2015 filed before AO submitted all the ledgers and vouchers pertaining to work in progress; letter dated 26.2.2015 filed before AO submitted location map, broucher and approved map of the project; letter dated 20.3.2015 filed before AO submitted copy of partnership deed of Greenfield estate lender of unsecured loan of Rs. 12.75 crores of loan; letter dated 25.3.2015 filed before AO informing the AO that M/s Greenfield Estate has sent confirmation through speed post after which AO completed the assessment; order sheet of AO evidencing that the AO had raised queries for loan of Rs. 12.75 crores and work in progress and examined and verified the documents submitted; notice of enhancement dated 16.5.2015 issued by CIT(A); reply of the assessee dated 26.5.2016 informing the CIT(A) about intention of the assessee to avail the benefit of Direct Tax Dispute Resolution Scheme 2016; submission of assessee dated 20.6.2016 reiterating intention to avail the benefit of Director Tax Dispute Resolution Scheme 2016; copy of order sheet maintained by the CIT(A) evidencing that before issuing notice of enhancement dated 16.5.2016 assessment records were called for and seen and Direct Tax Dispute Resolution Scheme 2016. I also note that the Ld. Counsel of the Assessee has also certified that the above evidences/ documents were on record of the Ld. CIT(A) & AO, but the Ld. CIT(A) has not considered the same in a proper manner, which in my considered opinion, are very essential to be considered and needs to be examined by the Ld. CIT(A). Keeping in view of the facts and circumstances of the case and in the interest of justice, the issues in dispute are remitted back to the file of Ld. CIT(A) to decide the issues in dispute afresh, after considering all the evidences as discussed above and give adequate opportunity of being heard to the assessee for substantiating its claim. The Assessee is also directed to submit all the documents / evidences before the Ld. CIT(A) in order to substantiate its claim and did not take any unnecessary adjournment and fully cooperate with the Ld. CIT(A) in the proceedings for the speedy disposal of the matter.
In the result, the Assessee’s Appeal is allowed for statistical purposes. Order pronounced on 31-05-2018.