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Income Tax Appellate Tribunal, DELHI BENCHES “E” : DELHI
Before: SHRI BHAVNESH SAINI & SHRI O.P. KANT
This appeal by Revenue has been directed against the order of the Ld. CIT(A)-1, New Delhi, dated 03rd March, 2014, for the A.Y. 2008-2009, on the following grounds :
1. “That the Commissioner of Income Tax (Appeals) erred in law and on facts of the case in deleting the addition of Rs.1,61,04,949/- made by AO on account of income from undisclosed sources u/s 68 of I.T. Act, 1961.
2 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi.
That the Commissioner of Income Tax (Appeals) erred in law and on facts of the case in deleting the addition of Rs.1,04,949/- made by AO on account of interest paid on TDS payable on unsecured loans.
(a) The order of the CIT(A) is erroneous and not tenable in law and on facts,
(b) The appellant craves leaves to add, alter or amend any/all of the grounds of appeal before or during the course of the hearing of the appeal.”
2. Briefly, the facts of the case are that the Ld. CIT(A) noted in the impugned order that appeal has been filed before him against the order under section 153A r.w.s.143(3) dated 30th December, 2011, passed by ACIT, CC-3, New Delhi. The Ld. CIT(A) noted the grounds of appeal of assessee in the appellate order in which the assessee challenged the addition on account of unsecured loans of Rs.60 lakhs and interest thereon of Rs.1,04,949/- under section 68 of the I.T. Act. The Ld. CIT(A) noted that reasons for addition made against the assessee are same as have been considered in the case of assessee for A.Y.
3 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi.
2005-2006 which have been decided in his favour, therefore, appeal of assessee has been allowed.
3. Learned Counsel for the Assessee, at the outset, submitted that Revenue has taken a wrong ground of appeal in the Departmental appeal because the Ld. CIT(A) has deleted the addition of Rs.60 lakhs on account of unexplained cash credit and interest thereon of Rs.1,04,949/-.
4. Ld. D.R, however, pointed out that the order of the A.O. dated 30th December, 2011 shows that A.O. has made addition of Rs.1,61,04,949/- in respect of five parties which is challenged in the Departmental Appeal. Learned Counsel for the Assessee filed one more copy of the assessment order dated 30th December, 2011 passed by the same ACIT, CC-3, New Delhi, in which the A.O. has made addition of Rs.60 lakhs in respect of four parties and interest of Rs.1,04,949/- have been disallowed.
Copy of both the assessment orders are placed on record.
Learned Counsel for the Assessee also submitted that in assessment year under appeal, A.O. made addition on account
4 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi. of unsecured loans. However, in A.Y. 2005-2006, the Ld. CIT(A) considered the issue of unexplained share application money and deleted the addition. The Tribunal in its order dated 16.11.2017 dismissed the Departmental Appeal following the decision of Hon’ble Delhi High Court in the case of Kabul Chawla 380 ITR 570 because no incriminating material was found against the assessee during the course of search. Ld. D.R. therefore, submitted that there is a confusion on the facts.
Therefore, matter may be remanded to the Ld. CIT(A) to decide the matter in issue afresh.
After considering the rival submissions, we are of the view that the matter requires reconsideration at the level of the Ld. CIT(A). The Ld. CIT(A) followed his order for A.Y. 2005-2006 for the purpose of deleting the addition. No other findings have been given by the Ld. CIT(A). The Department in the Departmental Appeal challenged the deletion of addition of Rs.1,61,04,949/- under section 68 of the I.T. Act. The Department has filed copy of the assessment order dated 30th
5 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi.
December, 2011, in which the A.O. has made addition of Rs.1,61,04,949/- in respect of 05 parties. The order has been passed by Shri J.K. Chandnani, ACIT, CC-3, New Delhi.
Learned Counsel for the Assessee, however, filed another copy of the assessment order having the same date 30th December, 2011 passed by the same ACIT, CC-3, New Delhi Shri J.K.
Chandnani, in which the A.O. made the addition of Rs.60 lakhs only in respect of 04 parties. In this order, the A.O. did not make addition of Rs.1 crore in respect of Excel Infotech Ltd., which is made in assessment order filed by Department. Copy of Form- 35 filed before Ld. CIT(A), is also placed on record in which the assessee challenged the addition of Rs.60 lakhs on account of unexplained cash credit. It appears that A.O. passed two contradictory orders, one copy have been given to the assessee which is having lesser addition of Rs.60 lakhs. The Department has, however, produced another copy of assessment order of the same A.O. for the same year, in which the Assessing Officer has made addition of Rs.1,61,04,949/-. It is a serious lapse which requires investigation at the highest level, how the A.O. passed
6 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi. two orders one in favour of Revenue and another in favour of Assessee. It may also be noted that the Ld. CIT(A) simply followed his order for A.Y. 2005-2006 for the purpose of deleting the addition. Learned Counsel for the Assessee however, fairly stated that in A.Y. 2005-2006, the issue was of unexplained share application money, but, in assessment year under appeal, the issue is of unsecured loans. Ld. CIT(A) has co-terminus powers to that of the A.O. Therefore, it is his duty to verify the facts and then pass the order as per Law. The Ld. CIT(A) without giving any reasons for decision in the appellate order passed the order following his order for A.Y. 2005-2006 which may not be relevant to the matter in issue. Ld. CIT(A) have also not verified as to how two different orders have been passed by the A.O. on the same matter in issue showing different additions against the assessee. In this view of the matter, we are of the view that the matter in issue requires reconsideration at the level of the Ld. CIT(A). We, accordingly, set aside the impugned order and restore the appeal to the file of Ld. CIT(A)-1, New Delhi, with a direction to re-decide the appeal of assessee as per Law, by 7 ITA.No.3351/Del./2014 M/s. MKR Construction (P) Ltd., New Delhi. giving reasonable, sufficient opportunity of being heard to the assessee as well as A.O. because facts shall have to be verified from the record of the assessment as to how the A.O. has passed two contradictory orders on the same matter in issue. The Ld. CIT(A) shall look into this aspect while passing the appellate order and shall give finding on the same. Ld. CIT(A) shall pass the order on merits discussing the entire evidence on record.
The appeal of the Revenue is, therefore, allowed for statistical purposes.
In the result, appeal of the Revenue is allowed for statistical purposes.
Order pronounced in the open Court.