PGF LTD.,CHANDIGARH vs. ACIT, NEW DELHI

for AY 2007-08 3. This appeal by Revenue is directed against the order of Commissioner of Income Tax (Appeals)-III (hereinafter referred to as ‘the CIT (A)’) dated 31.12.2010 for AY 2007-08. This appeal emanates from the assessment order passed u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).

The Assessing Officer (AO) vide assessment order dated 30.12.2009 passed u/s. 143(3) of the Act made addition of Rs.2,11,28,720/- rejecting assessee’s claim of Land Development Expenses paid to following parties: i. Ancient Infra Build (P) Ltd. Rs.68,44,000/- ii. Bell Flower Infra Build (P) Ltd. Rs.69,04,000/- iii. Smt. Lalita Mittal Rs.14,75,000/- 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) iv. Sh. Rameshwar Mittal Rs.19,67,920/- v. Sh. Rameshwar Mittal (HUF) Rs.9,84,640/- vi. Sh. Abhishek Mittal Rs.14,76,280/- vii. Sh. Abhishek Mittal (HUF) Rs.14,76,280/- Total Rs.2,11,28,720/- 5. Aggrieved by the said assessment order, the assessee carried the issue in appeal before the CIT(A). The assessee furnished additional evidences in the form of copies of ITR’s, confirmations and affidavit etc. of the parties to whom development expenses were paid. The CIT(A) sought remand report from the AO on written submissions and additional evidences filed by the assessee. The Assessing Officer submitted his remand report on 03.12.2010. The CIT(A) after examining the remand report deleted the addition in toto. Hence, the present appeal by the Department.

Ms. Harpreet Kaur Hansra, representing the department vehemently defending the assessment order submitted that the survey u/s. 133A of the Act was conducted on the business premises of the assessee i.e. 2nd Floor, Vaishali Building, Paschim Vihar, New Delhi on 25.11.2008. Certain incriminating documents were found and impounded from the said premises. The assessee was asked to furnish details of the expenses claimed for the year under consideration on account of Land Development Agreements. The assessee was also asked to furnish party wise details along with copies of the accounts. Summons u/s. 131 of the Act was issued to the parties which were served through Inspector. The report from the Inspector was also obtained. As per Inspector report dated 15.12.2009 parties at Sr. No i and ii are operating from same address, whereas, parties mentioned at Sr. No iii to vii are from one family. The assessee was asked to 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) produce the parties to whom Land Development Expenses were paid. The assessee expressed its inability to produce the parties. Further no documentary evidences were filed by the assessee to substantiate expenditure claimed. In the absence of any documentary evidences, the assessee failed to discharge its onus in proving genuineness of the expenditure. The ld. DR further submitted that in remand report, the AO objected to admission of additional evidences, no remand report on the additional evidences and merits was filed by the AO. The CIT(A) without granting further opportunity to the AO deleted the additions.

Dr. Rakesh Gupta, appearing on behalf of the assessee submitted that the CIT(A) had sought remand report on the additional evidences filed by the CIT(A). The AO deliberately choose not to comment on additional evidences and only objected to filing of the additional evidences. Thus, the AO accepted additional evidences filed by the assessee. The AO during assessment proceedings gave the name of seven parties (tabulated above) to the assessee on 18.12.2009 i.e. at fag end of the assessment and thereafter completed the assessment on 30.12.2009. The assessee was not given sufficient time by the Assessing Officer to furnish the requisite details. The ld. Counsel submits that the issue relating to Land Development Expenditure is now settled by the Tribunal in assessee’s own case in the subsequent assessment years i.e. AYs 2004-05 to 2006-07 in to 2137/Del/2010 decided on 27.06.2025. The Tribunal has upheld the order of CIT(A) in deleting the addition on account of Land Development Expenditure.

Both sides heard, orders of the authorities below examined. The short issue in appeal by the Department is against deleting of disallowance of Land Development Expenditure by the CIT(A). The Revenue has also alleged that 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) additional evidence was admitted without granting sufficient opportunity to the AO in violation of Rule 46A. A perusal of the impugned order reveals that the assessee had filed certain additional evidences in the form of copies of ITR’s, confirmation and affidavits etc. from the parties to whom payments were made for Land Development. The written submissions and additional evidences were forwarded to the AO and remand report was sought. The Assessing Officer submitted remand report vide letter dated 03.12.2010. The CIT(A) while admitting the additional documentary evidences filed by the assessee observed that during assessment proceedings, the AO provided Inspector report to the assessee on 18.12.2009 at 6 P.M and asked the assessee to furnish requisite documents in relation to payments amounting to Rs.2,11,28,720/-. The assessee vide letter dated 24.12.2009 pointed that due to holidays from 25.12.2009 to 28.12.2009 it is not possible to produce parties or procure documents from the parties in such a short time. The AO completed the assessment on 30.12.2009 as assessment was getting time barred. Thus, the assessee was constrained to file additional evidence during the first appellate proceedings. The opportunity was given to the AO to comment on the additional evidence filed, however, he chose to remain silent on merits of additional evidences. The CIT(A) after examining the documents, submissions of the assessee, also taking note of the remand report deleted the addition.

We find that in the subsequent assessment years i.e. AY 2004-05 to 2006- 07, the additions were made by the AO after disallowing assessee’s claim of Land Development Expenditure. The said additions were made in similar manner allowing insufficient time to the assessee during assessment proceedings. The CIT(A) deleted the additions made by AO. The Revenue carried the issue in appeal 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) before the Tribunal in to 2137/Del/2010 (supra). The Coordinate Bench upheld the order of CIT(A) observing as under:- “19. We have heard the rival submissions and have perused the relevant material on record. We find that the Assessing Officer disallowed the payment of Rs. 2,52,36,513/- for non-production of A.I. Estates for examination. It is the say of the ld. counsel for the assessee that the said party could not be produced due to the short notice of 7 days. We find that the company is having office in Delhi whereas the services were rendered in Tamil Nadu. We further find that the ld. CIT(A) observed that the services were provided by the company and payment for the services rendered was made as per the agreement and the bills were raised by the concerned company. Therefore, there is no scope for doubt or suspicion regarding the services rendered. We also find that the Assessing Officer has not brought any positive material or evidence to indicate that there is no services rendered. The ld. CIT(A) is quite justified in holding that merely because of the subjective satisfaction that the company is based in Delhi and not capable of providing services in Tamil Nadu would not give jurisdiction under the peculiar facts of the case to disallow the genuine expenditure. In view of the above discussion, we uphold the findings of the ld. CIT(A) and dismiss Ground No. 4.”

The Revenue has failed to controvert the findings of the CIT(A) and has also failed to distinguish the decision of the Coordinate Bench in assessee’s own case on similar set off facts in subsequent assessment years. In absence of any contrary material, we find no reason to interfere with findings of the CIT(A) on this issue.

The Revenue vide application dated 10.10.2019 has raised additional ground of appeal

The ld. Counsel for the assessee submits that the Assessing Officer reopened the assessment for AY 2007-08 during pendency of the appellate proceedings for AY 2007-08 before the CIT(A). Narrating sequence of events he pointed that the assessment order u/s. 143(3) of the Act was passed on 30.12.2009. The assessee filed appeal against the said assessment order on 27.01.2010. Notice u/s. 148 of the Act was issued to the assessee on 30.03.2010.

Per contra, the ld. DR vehemently defending the impugned order and prayed for dismissing appeal of the assessee. The ld. DR pointed that though Land Development Expenses were examined by the AO in original assessment u/s. 143(3) of the Act, thereafter, the assessment was reopened on the basis of enquiry made by the Assessing Officer of the contractor companies that is recipient of Land Development Expenses. The AO found that companies (8 in number) to whom aggregating payment of Rs.3,58,75,000/- was made did not perform any actual work and were only providing accommodation entries.

Here it would be imperative to refer to the relevant provisions of section 147 of the Act as they were applicable to the impugned assessment year:- “Income escaping assessment.—If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess" such" income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceeding under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): xxx xxx 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) Provided also that the Assessing Officer " may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment.” A bare perusal of third proviso to section 147 of the Act would make it clear that the AO is barred to reopen assessment on the matters which is subject matter of appeal, reference or revision. We are of considered view that the matter in reassessment proceeding was the same that was in appeal before the CIT(A) for same assessment year i.e. Land Development Expenses-allowbility thereof. The Hon’ble Bombay High Court in the case of Poonam Builders vs. ACIT (supra) has explained the operation of aforesaid proviso as under:- “12. Section 147 of the Act deals with situations where income has escaped assessment. It provides that "If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of Sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under Section 147 . . . . . . for the assessment year concerned". It further states that "provided also that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matter of any appeal, reference or revision, which is chargeable to tax and has escaped assessment".

Thus, in light of the fact that the issue raised in reassessment proceedings was the same as was subject matter of appeal before the CIT(A) in proceedings u/s. 143(3) of the Act, the AO could not have initiated proceedings u/s. 148 of the Act. Hence, the reassessment order is held to be without jurisdiction.

In the result, appeal of the assessee is allowed.

Since, we have held the assessment order dated 02.06.2010 (supra) to be without jurisdiction, penalty proceedings u/s. 271(1)(c) of the Act arising there from does not have base to stand.

In the result, penalty order dated 31.03.2015 passed u/s. 271(1)(c) of the Act is quashed.

In the result, appeal of the assessee is allowed. for AY 2008-09 28. This appeal by the Revenue is directed against the order of CIT(A)-XXXIII, New Delhi dated 21.02.2012 for AY 2008-09.

The Revenue in appeal has assailed the order of CIT(A) on following grounds:- “

The order of CIT(A) is erroneous and is not tenable on facts and in law.

Per contra, Dr. Rakesh Gupta, appearing on behalf of the assessee vehemently defending the impugned order prayed for dismissing appeal of the Revenue. The ld. Counsel for the assessee pointed that the aforesaid additions were deleted by the CIT(A) after examining the documents on record. The assesse during First Appellate proceedings had filed additional evidences. The CIT(A) sought remand report from the AO on the additional evidences filed by the assessee. The AO in remand report accepted genuineness of alleged unaccounted expenditure of Rs.22,67,447/- and also with regard to business development expenses which were in fact linked to other business of the assessee.

We have heard the submissions made by rival sides and have examined the orders of authorities below.

In ground no. 2 of appeal, the Revenue has assailed deleting the addition of Rs.22,64,447/- on account of unaccounted expenditure. The assessee during the course of First Appellate proceedings furnish additional evidences i.e. statement of account of building, account of sale and details of profit on sale of fixed assets, 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) etc. The assessee explained that an amount of Rs.7,85,547/- was paid to Improvement Trust, Sangrur towards registration charges. Further payment of Rs.7,40,950/- relating to two units each bearing no. 201 and 301 in building Aggarwal City Plaza, Rohini, Delhi towards conversion charges was made. The details of payments made through bank accounts were duly furnished. The remand report was sought from the AO on the document furnished by the assessee. The AO in remand report made no adverse comments on the additional evidences filed by the assessee. The CIT(A) after examining the additional evidences and the remand report deleted the addition. In the absence of any contrary material, we see no reason to interfere with findings of the CIT(A) on this issue as well. Hence, ground no. 2 is dismissed being devoid of any merit.

The third ground in appeal of the Revenue is against deleting of the addition of Rs.68,41,739/- on account of disallowance of business development expenses. During First Appellate proceedings, the AO explained that the aforesaid expenditure is in respect of other business of the assessee viz. species, commercial land activity. Even in the preceding assessment years i.e. AY 2006-07, 2007-08 and 2009-10 similar expenditure was allowed by the AO. In the remand report, the AO made no adverse comments on the said expenditure. In the absence of any contrary material before us, we uphold findings of the CIT(A) on this issue. Hence ground no. 3 of appeal is dismissed.

In ground no.4 of appeal, the Revenue has assailed that the CIT(A) admitted additional evidences in violation of Rule 46A. We find no merit in this ground of appeal as the CIT(A) had sought remand report from the AO on the 4457/Del/2016, 1322/Del/2011 & 2024/Del/2012 (AY 2007-08 & 2008-09) additional evidences filed by the assessee. Thus, the said ground of appeal