ITA No.-4390/Del/2015.
M/s Triveni Motors, New Delhi.
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH: `F': NEW DELHI)
BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER
AND
SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER
ITA No:- 4390/Del/2015
(Assessment Year: 2006-07)
Asstt. Commissioner of Income M/s Triveni Motors,
Tax, Vs. C-691, New Friends Colony,
Central Circle -28, New Dlhi.
New Delhi.
PAN No: AACFT0256B
APPELLANT RESPONDENT
Revenue by : Smt. Sulekha Verma, CIT(DR)
Assessee by : Shri Ramesh Goyal, CA
ORDER
PER ANADEE NATH MISSHRA, AM
This appeal by Revenue is filed against the order of Learned Commissioner of
Income Tax (Appeals)-29, ["Ld. CIT(A)", for short], New Delhi, dated 15.04.2015 for
Assessment Year 2006-07, on the following grounds:
"1. On the facts and in the circumstances of the case and in law, the CIT(A) has
erred in deleting the addition of Rs. 85,75,000/- made by AO on account of
unexplained loans
2. On the facts and in the circumstances of the case and in law, the CIT(A) has
erred in deleting the disallowance made by AO of expenses of Rs.
21,78,267/- u/s 43B.
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ITA No.-4390/Del/2015.
M/s Triveni Motors, New Delhi.
3. On the facts and in the circumstances of the case and in law, the CIT(A) has
erred in deleting the disallowance made by AO of depreciation of Rs. 73,51,
344/-.
4. On the facts and in the circumstances of the case and in law, the CIT(A) has
erred in deleting the disallowance made by AO of, 10% of direct and indirect
expenses, of Rs. 5,76,067/-.
5. On the facts and in the circumstances of the case and in law, the CIT(A) has
erred in deleting the disallowance made by the AO of, 50% of administrative
and selling expenses, of Rs. 79,26,400/-
6. On the facts and in the circumstances of the case and in law, the decision of
CIT(A) is not acceptable in view of the bare fact and once a completed
assessment is reopened the old assessment stands vitiated and de-novo
assessment has to be made after considering all issues that come to the
notice of the AO.
7. The order of the CIT(A) is erroneous and is not tenable on facts and in law.
8. 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.."
2. At the time of hearing before us, both sides- Revenue represented by the Ld.CIT
DR, Smt. Sulekha Verma and the assessee represented by Sh. Ramesh Goyal, CA
submitted that Ld.CIT(A) accepted additional evidences from the assessee on the basis
of which he allowed relief to the assessee. However, during the appellate proceedings
before the CIT(A), any clear violation of Rule 46A(3) of the Income Tax Rules, 1962 did
not allow reasonable opportunity to the AO to examine the evidences or documents or
to cross-examine the witness produced by the assessee or to produce any evidence or
document or any witness in rebuttal of the additional evidence produced by the
assessee. Ld.CIT DR filed a copy of the order of Co-ordinate Bench of ITAT, Delhi in
assessee's own case for AY 2008-09 in ITA No.6429/Del/2014 vide order dated
19.11.2018 wherein, in similar circumstances, the matter was restored to the Ld.CIT(A)
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ITA No.-4390/Del/2015.
M/s Triveni Motors, New Delhi.
with the direction to re-adjudicate the grounds. The relevant portion of the aforesaid
order is reproduced here under:-
4.0. "Having heard the Ld. CIT DR and after having perused the
material on record as well as the impugned order, we find that the
averment of the Ld. CIT DR is correct inasmuch as the Ld. CIT (A)
admitted additional evidence but did not call for a remand report
from the Assessing Officer nor gave the Assessing Officer any
opportunity to examine the evidence which were furnished before
him by the assessee for the first time. This should not have been
done and the Ld. CIT (A) should have followed the provisions of Rule
46A in this regard. Accordingly, in light of the factual matrix, we
restore the file to the office of the Ld. CIT (A) with the direction to
re-adjudicate the grounds raised before him after giving opportunity
to the Assessing Officer to examine and comment on the additional
evidences which have been earlier admitted by him and also after
giving due opportunity to the assessee to rebut the observations of
the AO."
3. In view of the foregoing, both sides submitted, that for this year also all the
disputed issues in the present appeal should be restored back to the Ld.CIT(A) for fresh
order.
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ITA No.-4390/Del/2015.
M/s Triveni Motors, New Delhi.
4. After hearing both sides, we find that it is not in dispute that the Ld.CIT(A)
admitted additional evidences from assessee's side in the course of appellate
proceedings before the Ld.CIT(A). It is also not in dispute that the Ld.CIT(A) did not
give opportunity to the Assessing Officer though the AO was entitled to opportunity
under Rule 46A(3) of Income Tax Rules. We also find that in Co-ordinate Bench of
ITAT, Delhi has, in aforesaid order dated 19.11.2018 in ITA No.6429/Del/2014, restored
the matter to the CIT(A). In view of the foregoing, and respectfully following the order
of the Co-ordinate Bench of ITAT, Delhi in aforesaid appeal i.e. ITA No.6429/Del/2014
for AY 2008-09' and as both sides agree to this; we set aside the order of the Ld.
CIT(A) and restore all the disputed issues raised in the present appeal before us to the
file of the Ld.CIT(A) for fresh order after giving opportunity to the AO to examine and
comment on the additional evidences which have been earlier admitted by him and also
after giving due opportunity to the assessee to rebut the observations of the AO. We
direct Ld.CIT(A) to adhere the provisions of Rule 46A(3) of Income Tax Rules, 1962.
Thus, the present appeal is disposed off in accordance with the aforesaid directions.
5. In the result, the appeal of the Revenue is partly allowed for statistical purposes.
Order pronounced in the open court on 12th day of July, 2019.
Sd/- Sd/-
(KULDIP SINGH) (ANADEE NATH MISSHRA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 12.07.2019
* Pooja & Amit *
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ITA No.-4390/Del/2015.
M/s Triveni Motors, New Delhi.
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
Date of dictation
Date on which the typed draft is placed before the
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.
PS/PS
Date on which the final order is uploaded on the
website of ITAT
Date on which the file goes to the Bench Clerk
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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