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Income Tax Appellate Tribunal, DELHI BENCH “D”, NEW DELHI
Before: SH. R. K. PANDA & SMT. BEENA A. PILLAI
Date of hearing : 23.01.2017 Date of Pronouncement: 14.02.2017 ORDER PER BEENA A. PILLAI, JM: These are appeals filed by assessee as well as revenue 1. against order dated 01.04.2013 passed by Ld. CIT (A) XXXIII, & 4732/Del/2013 (AY 2007-08 & 2008-09)
New Delhi for assessment year 2007-08 and 2008-09 on the following grounds of appeal:
1. On the facts and in the circumstances of the case, the CIT(A) has erred in holding that share capital contributed by the promoter's family members is genuine.
2. On the facts and in the circumstances of the case, the CIT (A) has erred in not appreciating the facts of the case that the additions were made in the hands of all the family members on account of income from undisclosed sources, as the same could not be verified by the assessee at the time of assessment proceedings u/s 153A of the Income Tax Act, 1961, 3. The order of the CIT (A) is erroneous and is not tenable on facts and in law, 4. The appellant craves leave to add, alter or amend any/ all of the grounds of appeal before or during the course of the hearing of the appeal. for A.Y 2008-09
1. Under the facts and circumstances of the case, Ld. First Appellate Authority has grossly erred in directing the Ld. Assessing Authority to verify the list of shareholders and share applicants during the year under consideration in respect of investment of Rs. 69,47,000/- in shareholder's fund of appellant company made by M/s HBN Dairies & Allied Limited, instead of directly deleting the additions of aforesaid amount of Rs. 69,47,000/-, when it was clearly evident & 4732/Del/2013 (AY 2007-08 & 2008-09)
from the records available before him that the funds for the aforesaid amount had flown from M/s HBN Dairies & Allied Limited out of its duly explained sources and is duly recorded in its books of accounts as investments in HBN Dairies & Allied Ltd.
Under the facts and circumstances of the case, Ld. First Appellate Authority has grossly erred in affirming the addition of balance amount of 20,53,000/- made by the Ld. Assessing Authority on account of unexplained investment in shareholder's funds, which is grossly injudicious, against the facts and bad at law.
The appellant prays for leave to add, amend, alter or withdraw any grounds of appeal
2. On perusal of assessment order passed for both the assessment years under consideration it is observed that a search and seizure operation under section 132 of the Act was carried out on HBN group. During the course of search and seizure operation at various premises of group, loose papers and other documents were found and seized. During the years under consideration, it was observed that the group was involved in obtaining entries of share capital in various group companies namely M/s Complete News and Entertainment Broadcasting Pvt. Ltd, M/s.HBN Entertainment and Broadcasting Pvt. Ltd., M/s HBN Housing and Finance Pvt. Ltd., along with assessee, and papers relating to them were found and seized. Ld.AO rejected the submissions and the contentions advanced by assessee and added entire share & 4732/Del/2013 (AY 2007-08 & 2008-09) premium amount to the income of assessee as income from undisclosed sources, under provisions of section 68 of the Act.
3. Aggrieved by the order of Ld. AO assessee preferred appeals before Ld.CIT (A). On perusal of order passed by Ld. CIT(A), it is observed that Ld.CIT(A) has restored the issue back to the file of Ld. AO to verify the claim of share applicant/holders, being the family members. He however confirmed the addition made by assessing officer, on account of share capital and fixed deposit except for investments made by family members as share capital.
4. Aggrieved by order of Ld. CIT (A) for both assessment years under consideration, assessee as well as revenue preferred an appeal before this Tribunal.
At the outset Ld.AR submitted that similar issue has been considered in one of the group companies of assessee, in case of M/s. Complete News and Entertainment Broadcasting Pvt. Ltd., for assessment year 2007-08 in wherein this Tribunal vide order dated has decided as under:
Ld. CIT(A) instead of obtaining a Remand Report from the AO as per the statutory mandate in order to conclusively decide the issue instead restored the issue to the AO contrary to the statutory mandate. In view of this obvious statutory violation, the impugned order cannot be upheld. The issues raised are inter- linked and the finding arrived at it is seen is without & 4732/Del/2013 (AY 2007-08 & 2008-09) considering the relevant material on record. Accordingly, in view of the aforementioned 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 law after giving the assessee a reasonable opportunity of being heard.
Respectfully following the same we deem it appropriate to set aside the impugned order back to the file of Ld. CIT (A) with a direction to pass a speaking order in accordance with law after giving proper opportunity to the assessee of being heard.
In the result the grounds raised by assessee as well as revenue in the respective appeals for the assessment years under consideration stands allowed for statistical purposes.