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Asstt. Commissioner of Income Tax, Central Circle -28, New Delhi. Vs. M/s Triveni Motors, C-691, New Friends Colony, New Dlhi.a
July, 15th 2019
                                                                       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.
                                       Page 1 of 5
                                                                        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)



                                         Page 2 of 5
                                                                        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.




                                          Page 3 of 5
                                                                       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 *

                                        Page 4 of 5
                                                                     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



                                       Page 5 of 5

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