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ACIT, Central Circle-06, New Delhi.Vs. Sh. Anil Aggarwal, H. No.67, Sector 1, Vaishali, Ghaziabad, UP
January, 03rd 2020
                   IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCH: `D' NEW DELHI

          BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER
                               AND
          SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER

                   I.T.A. No. 1140/DEL/2016 (A.Y 2011-12)

     ACIT,                             Vs      Sh. Anil Aggarwal,
     Central Circle-06,                        H. No.67, Sector ­ 1,
     New Delhi.                                Vaishali, Ghaziabad, UP
                                               (PAN : AFGPA 3349 M)

     (APPELLANT)                               (RESPONDENT)


                Appellant by        Shri J. K. Mishra, CIT-D.R.
                Respondent by       Shri Akshit Goel, C.A.


                  Date of Hearing              01.01.2020
                  Date of Pronouncement        03.01.2020


                                     ORDER

PER SUCHITRA KAMBLE, JM

     This appeal is filed by the Revenue against the order of the
Commissioner of Income Tax [Appeals]-24, New Delhi dated 09.12.2015 for
Assessment Year 2011-12.


2.    The Grounds of appeal are as under:-
     1.    "The order of Ld CIT(A) is not correct in law and on facts.

     2.    On the facts and circumstances of the case, the CIT(A) has erred in
           law in restricting the addition amounting to Rs. 67,52,000/- out of
           total addition of Rs. 81,02,400/- made by the AO on account of
           commission.

     3.    On the facts and circumstances of the case, the CIT(A) has erred in
           law in deleting the addition of Rs. 1,35,04,00,000/- made by the AO
           on account of unexplained cash credit.
                                        2                      ITA No. 1140/Del/2016


      4.     The appellant craves leave to add, amend any/all the grounds of
             appeal before or during the course of hearing of the appeal."

3.    A search and seizure action u/s 132 of the Income Tax Act, 1961 was
carried out on the Rockland Group of cases on 06.09.2011. A consequential
search action u/s 132 was conducted on appellant Sh. Anil Aggarwal on
21.10.2011. The assessee is admittedly an entry operator based in New Delhi.
The Assessing Officer computed the assessment u/s 153A for this assessment
year on 28.03.2014 wherein he made two additions:-
      1)     On account of commission income @ 60 paisa per Rs.100 of
             accommodation entry provided - Rs. 81,02,400/-
      2)     Credits appearing in the bank account of the appellant -
             Rs.135,04,00,000/-.


4.    Being aggrieved by the assessment order, the assessee filed an appeal
before the CIT(A). The CIT(A) partly allowed the appeal of the assessee.







5.    At the time of hearing there is an adjournment application given by the
assessee's counsel signed by Ashish, Partner of VJA Legal Advocates. Shri
Akshit Goel of VGA Legal has appeared and requested for adjournment stating
therein that they require to file paper book in the matter. When we have
enquired with the Ld. DR about the matter, the Ld. DR submitted that the
assessee's appeal for A.Y. 2011-12 has been remanded back to the file of the
CIT(A) in respect of the relief which was not granted to the assessee which has
a bearing on the present appeal which is filed by the Revenue for the same
assessment year. Therefore, the Ld. DR submitted that the revenue's appeal
should also be remanded back to the file of the CIT(A) as the issues are inter-
connected.   When we pointed out this aspect to the assessee's counsel who
appeared before us, he expressed that he require certain time to go through the
file. Therefore, we have kept back the matter and handed over the second folder
of the appeal to the counsel who was appearing before us. When the matter
was taken at the end of the board, none appeared despite giving the second
                                          3                     ITA No. 1140/Del/2016


folder of the Bench to the counsel who have appeared for the assessee.
Therefore, we are proceeding with the matter on the basis of the Tribunal's
order in assessee's own case being ITA No.1317 to 1322/Del/2016 order dated
04.08.2017 as regards to Ground No. 2 and as regards to Ground No. 3 we are
taking up the submissions of the assessee before the Assessing Officer and the
CIT(A).


6.    We have heard the Ld. DR and perused the records available before us
including the Assessment Order, order of the CIT(A) and the order of the
Tribunal in Assessee's own case. Ground No. 1 is general, hence dismissed. As
regards to Ground No. 2 relating the issue of restricting the addition
amounting to Rs. 67,52,000/- out of total addition of Rs.81,02,400/- made by
the Assessing Officer on account of commission is concerned, the said issue is
remanded back to the file of the CIT(A) in assessee's appeal for same
assessment year which is interconnected to the issue in revenue's appeal
which will have a bearing on the addition whether to sustain or not. Thus, to
attend the consistency, it will be appropriate to remand back the issue
contested by the Revenue to the file of the CIT(A) as well as. Needless to say the
assessee be given opportunity of hearing before the CIT(A) by following the
principle of natural justice. Thus, Ground No. 2 of the Revenue's appeal is
partly allowed for statistical purpose.


7.    Ground No. 3 relates to deletion of addition of Rs. 1,35,04,00,000/-made
by the Assessing Officer under Section 68 of the Act as unexplained cash
credit, as assessee failed to show identity and creditworthiness of the
depositors as well as genuineness of those credits. The assessee submitted
before the Revenue authorities that these are advances against the sale of
property. However, neither before the Assessing Officer nor before the CIT(A),
the assessee submitted the details of address, area, rate, price and terms and
conditions of such bookings. There is no finding about these facts in the order
of the CIT(A) as no details were produced by the assessee. To test one of the
                                         4                       ITA No. 1140/Del/2016


ingredients of Section 68 of the Act is to test the `genuineness' of transactions.
Therefore, whether the transaction of booking of property was genuine or not
was not seen by the CIT(A). Further, there is no finding as to whether
subsequent sale has happened or not.







8.    In view of this, we set aside Ground No. 3 of the Revenue's appeal to the
file of the CIT(A) to test the genuineness of transaction on the issues mentioned
hereinabove. Needless to say the assessee be given opportunity of hearing
before the CIT(A) by following the principle of natural justice. Thus, Ground No.
3 of the Revenue's appeal is partly allowed for statistical purpose.


9.    In result, appeal of the revenue is partly allowed for statistical purpose.
     Order pronounced in the Open Court on 3 rd day of January, 2020.

         Sd/-                                                    Sd/-

(PRASHANT MAHARISHI)                                     (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER                                         JUDICIAL MEMBER

Dated:    03/01/2020
Priti Yadav, Sr. PS *

Copy forwarded to:

1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(Appeals)
5.    DR: ITAT


                                                   ASSISTANT REGISTRAR

                                                       ITAT NEW DELHI
                            5                          ITA No. 1140/Del/2016




Date of dictation                                    01.01.2020

Date on which the typed draft is placed before the   01.01.2020
dictating Member

Date on which the typed draft is placed before the   03.01.2020
Other Member

Date on which the approved draft comes to the Sr.     03.01.2020
PS/PS

Date on which the fair order is placed before the     03.01.2020
Dictating Member for pronouncement

Date on which the fair order comes back to the Sr.    03.01.2020
PS/PS

Date on which the final order is uploaded on the      03.01.2020
website of ITAT

Date on which the file goes to the Bench Clerk        03.01.2020

Date on which the file goes to the Head Clerk

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