1 ITA No. 3735/Del/2017
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `G' NEW DELHI
BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
ITA No. 3735/DEL/2017 ( A.Y 2011-12)
Yashi Multimedia Pvt. Ltd. Vs ITO
No. 5, Kartar Kunj, Golden Beach Ward-27(4)
Society, Ruia Park, Juhu, New Delhi
Mumbai
AAACY1714C
(APPELLANT) (RESPONDENT)
Appellant by Sh. Sanat Kapoor, Adv
Respondent by Sh. H. K. Choudhary CIT DR
Date of Hearing 20.02.2020
Date of Pronouncement 02.03.2020
ORDER
PER SUCHITRA KAMBLE, JM
This appeal is filed by the assessee against the order dated 19/12/2016
passed by CIT(A)-9, New Delhi, for Assessment Year 2011-12.
2. The grounds of appeal are as under:-
1. "That the Learned Commissioner of Income-tax (Appeals) erred in passing
the order without giving sufficient opportunity to the Appellant for
representation of its case. That the notices were not served upon the
Appellant at its address as stated in the records.
2. That the observations made in the assessment order are contrary of the
facts on record and the additions having been made on surmises and
2 ITA No. 3735/Del/2017
conjectures, the Learned Commissioner of Income-tax (Appeals) erred in
upholding the observations made by the Assessing Officer, without looking
into the assessment record to arrive at independent findings.
2.1 That the learned lower authorities failed to understand and appreciate the
nature of assessees' business.
3. That on the facts and circumstances of the case and in law, the Learned
Commissioner of Income-tax (Appeals) erred in upholding the addition of Rs.
Rs. 20,59,521/- under the heads "Business Promotion" and "Gifts and
Presentations".
4. That on the facts and circumstances of the case and in law, the
Learned Commissioner of Income-tax (Appeals) erred in upholding the
disallowance of Rs. 24,00,000/- being the amount paid to Shri Vivek Oberoi
as "Professional Fee".
5. That on thefacts and circumstances of the case and in law,
the Learned, Commissioner of Income-tax (Appeals) erred in upholding the
disallowance of Rs. 17,18,000/- being "Co-ordination Fees" and "Gym
Training & Fitness Expenses".
6. That onthefacts and circumstances of the case and in law,
theLearned Commissioner of Income-tax (Appeals) erred in upholding the
addition of Rs. 74,28,058/- u/s 68 of the Income-tax Act, 1961, on account of
credit entries appearing in assessees' bank account.
7. That on the facts and circumstances of the case and
in law, the Learned Commissioner of Income-tax (Appeals) erred in
upholding the addition of Rs. 6,400/-.
8. That on the facts and circumstances of the case and in law, the
3 ITA No. 3735/Del/2017
Learned Commissioner of Income-tax (Appeals) erred in upholding the
disallowance of Rs. 28,249/- u/s 14A of the Income-tax Act, 1961.
9. That on the facts and circumstances of the case and in law, the Learned
Commissioner of Income-tax (Appeals) erred in upholding the disallowance of
Rs. 50,000/- under the head "Operating & Administrative Expenses".
10. That on the facts and circumstances of the case and in law, the Learned
Commissioner of Income-tax (Appeals) erred in upholding the disallowance of
Rs. 2,36,000/- allegedly being Donations, without appreciating the nature of
expenditure.
11. That on the facts and circumstances of the case and in law, the learned
Commissioner of Income-tax (Appeals) ought to have held that no case is
made out for initiation of penalty proceedings u/s 271(l)(c) of the Act."
3. The assessee company is engaged in the business of providing creative
services in the field of consumer retailing, entertainment, celebrity,
management, celebrity healthcare management, media communication,
production distribution or marketing of underground development music and
other related services. During the hearing, the assessee company e-filed its
return of income on 13/8/2012 declaring total income of Rs. 6,44,639/-. The
assessee declared gross receipts of Rs. 2, 36,64,376/- and after claiming
various expenses declared net profit of Rs. 7,00,572/-(2.96%) as against that of
previous year at Rs. 23,35,535/-(8.94%) against gross rates of Rs.
2,61,11,640/-. The Assessing Officer made addition of Rs. 6,400/- as the
assessee could not file any documentary evidence as per the claim of the
assessee. The Assessing Officer further made addition of Rs. 28,249/- in
respect of disallowance u/s 14A of the Act. The Assessing Officer further made
addition of Rs. 50,000/- in respect of expenditure not incurred wholly and
exclusively for business purpose. The Assessing Officer made addition of Rs.
2,36,000/-in respect of donation made. The Assessing Officer made addition
4 ITA No. 3735/Del/2017
of Rs. 20,59,521/- as regards to expenses made to the well known actor
director of the film industry at their personal behalf. The Assessing Officer
also made addition of Rs. 24, 00,00/- in absence of any justification for the
payments made to Shri Vivek Oberio as remuneration under the head
professional fees which is not allowable u/s 40A(2b) of the Act. The Assessing
Officer further made disallowance of Rs. 17,18,000/- u/s 40 a(ia) of the Act
and finally the Assessing Officer made addition of Rs. 74,28,058,/- u/s 68 of
the Income Tax Act, on in absence of any detailed explanation in respect of
source of credit industries in its books of accounts.
4. Being aggrieved by the assessment order, the assessee filed appeal before
the CIT(A). The CIT(A) partly allowed the appeal of the assessee.
5. The Ld. AR submitted that the CIT(A) issued the notice which were not
at all received by the assessee and the order of the CIT(A) is ex-parte order
without giving hearing to the assessee. Therefore, the Ld. AR submitted that
the matter may be remanded back to the file of the CIT(A) giving the assessee
sufficient opportunity to represent his case on the basis of documents filed
before the Revenue Authorities.
6. The Ld. DR submitted that proper opportunities were given to the
assessee by the CIT(A) but the same was not availed by the assessee during
the appellate proceedings before the CIT(A). The Ld. AR further submitted that
CIT(A) has taken cognizance of all the evidences filed before the Assessing
Officer and has given a finding on merit. In-fact, the CIT(A) has partly allowed
the appeal of the assessee. Therefore, there is no need to remand back the
appeal of the assessee to the file of the CIT(A).
7. We have heard both the parties and perused the material available on
record. From the perusal of the order of the CIT(A), it appears that the CIT(A)
is silent on whether the notices were properly served to the assessee or not.
5 ITA No. 3735/Del/2017
Merely issuing notice does not allow the CIT(A) to proceed with the matter ex-
parte. It will be appropriate to remand back this matter to the file of the CIT(A)
for fresh adjudication by giving opportunity of hearing to the assessee.
Needless to say, the assessee be given opportunity of hearing by following
principal of natural justice. The appeal of the assessee is partly allowed for
statistical purpose.
8. In result, the appeal of the assessee is partly allowed for statistical
purpose.
Order pronounced in the Open Court on 2nd MARCH, 2020.
(N. K. BILLAIYA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 02 /03/2020
R. Naheed
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
6 ITA No. 3735/Del/2017
Date of dictation 20.02.2020
Date on which the typed draft is placed before the 21.02.2020
dictating Member
Date on which the typed draft is placed before the
Other Member
Date on which the approved draft comes to the Sr.
PS/PS
Date on which the fair order is placed before the
Dictating Member for pronouncement
Date on which the fair order comes back to the Sr. 02.03.2020
PS/PS
Date on which the final order is uploaded on the 02.03.2020
website of ITAT
Date on which the file goes to the Bench Clerk 02.03.2020
Date on which the file goes to the Head Clerk
The date on which the file goes to the Assistant
Registrar for signature on the order
Date of dispatch of the Order
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