Income Tax Appellate Tribunal - Delhi
Sh. Rajinder Singh, New Delhi vs Acit, New Delhi on 25 March, 2021
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: 'F' NEW DELHI
(THROUGH VIDEO CONFERENCING)
BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER
AND
SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER
M.A. No.- 24/Del/2021
Arising Out of ITA No:- 2293/Del/2017
(Assessment Year: 2013-14)
Shri Rajinder Singh, ACIT,
New Delhi. Vs. New Delhi.
PAN No: AWWPS0999N
APPELLANT RESPONDENT
Assessee by : None
Revenue by : Ms. Rakhi Vimal, Sr. DR
M.A. No.- 550/Del/2017
Arising Out of ITA No:- 4159/Del/2011
(Assessment Year: 2007-08)
M/s Rita Plastics Pvt. Ltd., ITO,
New Delhi. Vs. Ward 15(4),
New Delhi.
PAN No: AABCR3215J
APPELLANT RESPONDENT
Assessee by : Shri Satish Agarwal, CA
Revenue by : Ms. Rakhi Vimal, Sr. DR
Page 1 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
ORDER
Per Anadee Nath Misshra, AM
(A) For the sake of convenience these two Miscellaneous Applications ("M.A.", for short), both heard on 19.03.2021 are disposed off through this consolidated order. In the case of Shri Rajinder Singh vs. Assistant Commissioner of Income Tax vide M.A. No. 24/Del/2021; the assessee had filed appeal vide ITA No. 2293/Del/2017 for Assessment Year 2013-14 against impugned appellate order dated 31.01.2017 passed by Learned Commissioner of Income-Tax (Appeals)-20, ["Ld. CIT(A)", for short] New Delhi, raising the following grounds of appeal:
"1. Disallowance on account of Purchase of material:-
{1.1} Contention of the Assessing Officer:-
On perusal of Profit & Loss Account, it is observed that the assessee has debited a sum of Rs. 1,04,40,429/- on account of purchase of material.
The assessee was asked to furnish the detail tow whom the same paid. For the verification of claim of assessee notices u/s 133(6) were sent.
From the following parties notice were returned back/ No reply received S.No Name of the party Amount Remarks .1 M/s Balaji marble & Granite, Plot No. E-410, Paryavaran 255000 Returned Road, Indl. Area, Madanganj- Kishangarh (Ajmer) Rajasthan
-305801 M/s Vandana Timbers, 5-A, Rajdhani Park, Main Rohtak 916998 Returned Road, Nagloi, New Delhi 3 M/s Pal Enterprises, Savitri Nagar, Malviya Nagar, New 2400000 Returned Delhi-110017 4 M/s R.K. Electronics, E-2/9, Malviya Nagar, Delhi-110017 403000 back No reply Received Page 2 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
7 M/s Garg Timber Traders, 550, Chirag Delhi, New Delhi- 210250 No reply
110017 Received
M/s Guru Nanak Building Material Store, 33, Corner Market 911811 No reply
Malviya Nagar, New Delhi-110017 Received
Total 50,97,059
For 133(6) Returned back/No reply received, the AR of the assessee was asked to give the justification that why it should not be added to the income of the assessee. The AR of the assessee replied vide note sheet entry dated 10.02.2016 stating that the addresses are correct.
This reply has been considered but not tenable as no reply/confirmation has been received from concerned parties. The above 133(6) issued were returned back or no reply received.
Hence, the said parties, payment of Rs.50,97,059/- is disallowed and added back to the total income of the assessee on account of bogus purchases. The AR submitted invoices.
As evident from this invoice, there is not TIN / PAN which also raises doubts about its authenticity. Further, there is no name mentioned.
(Refer page-9 Para No 5& 5.1 of the Appellate Order) {1.2} A p p e l l a n t s S u b m i s s i o n : -
T h e assessee went out of the way to attain and file detailed confirmation, with narrated bank statement, acknowledgement of return of income, and PAN of the creditors, on their behalf respectively, which are filed videpage no. 90 to 95 of the paper book for your reference.
6. That Detailed Ledger account along with all copies of bills/ invoice of purchase of building material during the year under consideration, are enclosed again (vide page no.35 to 88) of the paper book, your ready perusal.
7. That the AO in his order(page 13 of the paper book) has stated that there is no TIN/PAN on the invoice of M/s Pal Enterprises. The AO neither directed the assessee to submit the same nor noted on the order sheet to make submissions. The AO has not given any opportunity to the assessee to explain the above. Also there are 13. Invoices raised by M/s Pal enterprises during the year, against the Assessee's name. The AO has only pointed out the bill, which did not have purchasing dealer's name [assessee] on it.
All the bills, with the creditor's addresses and PAN are enclosed vide page no. 35 to 41 of the paper book.
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Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
8. That "merely because the notices u/s 133(6) could not be served upon/ returned back/ or no reply received from/ to the creditors, does not mean the transaction were bogus". All the transactions with creditors were made through banking channels (bank statement duly narrated is annexed vide page no. 33 to 34 of the paper book) and all documentary evidences prove that the assessee has transacted with the purchasing dealers genuinely.
9. That the AO issued notice u/s 133(6) to the business creditors on 20/01/2016 only and never again. Meaning thereby, that the AO did not intend to give another opportunity to the said creditors. As explained earlier, all detail vide letter mentioned above were filed and placed on record. Thus, the onus to prove the transaction and its genuineness no more lie upon the assessee.
10. The AO in his order said that 'the counsel stated that the addresses are correct'. It is vehemently denied. Neither the assessee nor the counsel issued any such statement in regard to the addresses of the creditors. The Ld.AO has made false allegation in his order vide page no. 35 to 43 of the paper book.
11. That the remarks in the order that, the assessee has furnished inaccurate particulars and concealed the income, because there is no TIN/PN on one creditor's invoice, is baseless. As said in para 7, all the transactions are through banking channels and are genuine. Also all the bills have the TIN and PAN incorporated and enclosed vide page 35-43 of the paper book. Addition of Rs. 50,97,059/- may very kindly be deleted.
(Refer page-10 Para-5.2 of the appellate order) {1.3} D e c i s i o n o f t h e L d . C I T ( A ) - X X : -
The AO has made an addition of Rs.50,97,059/- on account of purchase of material on the ground that notice under section 133(6) came back un served/no reply received and the invoices were not having TIN/PAN. The Assessing Officer has made this addition by simply writing that the AR of the appellant was asked to justify this and he stated that addresses are correct. During the course of appellate proceedings, the appellant has filed paper book along with the documents, which were filed before the Assessing Officer and claimed that confirmation of the purchasers, bank statement, the copy of return of income, PAN etc. were filed before the Assessing Officer vide letter dated 21.10.2015,09.02.2016 and 17.02.16 which were ignored by the Assessing Officer. The appellant has also claimed that all these purchases are made through cheques. That to verify the claim of the appellant, the assessment record was called from the Assessing Officer & verified and it is gathered that during the assessment proceedings, the appellant filed the confirmation of the purchasers, ledger account, bank Statement showing cheque payment to these parties, copies of bill having TIN /PIN but the Assessing Officer has not discussed at all about these documents. It appears that the AO was only guided by the notices issued under section 133(6) which came back unserved or where no reply was received. From the assessment record it is also Page 4 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
gathered that in the following cases notices u/s 133(6) came back unserved with the following remarks:-
Sr. Name of the party Remarks No. 1. M/s. Vandana Timbers & granite Unfound
Plot No.E-410, Paryavarana Road, Indl. Area Madanganj Kishangrah(Ajmer) Rajasthan-305801
2. M/s. Pal Enterprises, Savitri Natar, Malviya Nagar, New Insufficient Delhi Address
3. Balaji Marble SiGrantie Not known address Plot No.E-410, Paryavarana Road, Indl. Area Madanganj returned back Kishangrah (Ajmer) Rajasthan-305801 Further, the following creditors have not responded to the notices u/s 133(6) of the Assessing Officer:-
M/s R.K. Electronicals, E-2/9, Malviya Nagar, Delhi-110017 M/s Garg Timber Traders, 550, Chirag Delhi, New Delhi-110017 M/s Guru Nanak Building material store, 33, Corner market, Malviya Nagar, New Delhi-110017 In this light, the claim of the appellant has been considered and found that the Assessing Officer vide notice u/s 142(1) dated 29.07.2015 has asked for the name and address for the party from whom purchases was made of more than Rs. 5 lacs. In compliances to this on 21.10.2015 the appellant has filed these details where the name and address of the appellant has filed these details where the name and address of Gurunanak Building Material, Pal Enterprises, Nav Durga Steel And Sanitary, Ahluwalia Marbles and Vandana Timbers was given. In these accounts only Pal Enterprises and Vandana Timbers credit balance of Rs. 19,12,000/- and Rs.7,67,234/- was shown respectively. On 26.10.2015 vide order sheet entry the Assessing Officer has asked the appellant to file the confirmation to the creditors.Page 5 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
Subsequently vide letter dated 07.12.2015 the appellant has filed the confirmed copy of Pal Enterprises and Vandana Timbers. On 20.01.2016 the Assessing Officer vide order sheet entry has asked for purchase voucher & bills and creditors address and confirmation. Vide letter dated 28.01.2016 again confirmed copies of Vandana Timbers, Pal Enterprises, Gurunanak Building Material Store, Bills & vouchers of Pal Enterprises, Vandana Timbers, Gurunanak Builiding Material, Ahluwalia Marbels, R.K. Electricals and Garg Timber Traders as well as ledger copies of these parties in the books of the appellant was produced. Again the appellant vide letter dated 10.02.2016 has mentioned the following:-
"That confirmations from sundry creditors namely M/s Balaji Marbles, M/s Vandana Timber (PAN- AAEFV9228P)-, M/s R.K. Electricals (PAN- AAFFR8583G), M/s Nav Durga Steel, M/s Garg Timber, M/s Gurunanak Building Material (PAN- AAKPM9550H)-, M/s Pal Enterprises (AKHPB4641B)-. All the above confirmation are filed by the assessee vide letter dated 18-11-2015 para 5."
On 10.02.2016 vide order sheet entry the Assessing Officer has made the following Entry in relation to the notices which came back unserved:-
"He was informed returned 133(6) from vendors. AR stated that address are correct. On AR request, final date 17 Feb 2016"
On 17 Feb the appellant has filed letter along with documents. The relevant portion of the letter dated 17.02.2016 of the appellant is reproduced as under:-
"that confirmations from sundry creditors, with their acknowledgement of return of income & PAN, namely: M/s. Gurnanak Building Material (PAN AAKPM9550h), M/s. Pal Enterprises (AKHPB4641B)- are enclosed for your ready reference."
On 17th Feb the following order sheet entry has been made:-
"Shri Sameer Malhotra AR attended and filed final response from side of assessee. Case was discussed." On this date no adverse observation was made in the order sheet nor any further query was made by the Assessing Officer in the order sheet.
All the confirmations of the above mentioned six parties are also produced before me during the course of appellate proceedings. Besides this, the copy of ledger account, bank statement showing cheque payment to these parties, PAN etc. are also filed before me which were already filed before Assessing Officer.
In this light, the appellant was asked to submit the detail of the gross profit and net profit of the last 3 years which is submitted by the appellant and reproduced as under:-Page 6 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
Assessment Year 2011-12 2012-13 2013-14
Gross Profit 13.60 14.36 18.79
Net Profit 5.92 7.32 15.33
From this it is apparent that the gross profit has increased from 13.60 to 18.79 and net profit has increased from 5.92% to 15.33% from the assessment year 2013-14 which is quite reasonable in this line of business. The AO has not made any effort to make enquiries from bank when the payments were made through cheques and ignored the relevant details and documents filed by the appellant during the course of the assessment proceeding in the form of confirmations, Return of income, PAN, bills and cheque payment through bank statements. In the light of these evidences produced by the appellant and the increased net profit shown by the appellant, I do not find any justification of the addition made by the Assessing Officer regarding purchase. Even when the appellant has filed confirmations of these parties, the AO has not made any adverse observation in the order sheet or any query to the appellant. From the assessment record and order sheet entries, it is also apparent that Assessing Officer has made any query to the appellant regarding the non compliance by the three parties i.e. Gurunanak Building Material, R.K. Electricals and Garg Timber Traders and only asked about the return of notices in the case of another three parties i.e. Pal Enterprises, Vandana Timbers and Balaji Marble & Granite.
Finally, the order u/s 143(3) has been passed on 07.03.2016 by the Assessing Officer without giving any show cause letter or opportunity to the appellant and addition of Rs.50,97,059/- in respect of the purchase made from above six parties was made by the Assessing Officer.
But the Date Bill No. Amount
observ
1. 02/11/2012 604 187000.00
2. 09/11/2012 610 236000.00
3. 16/11/2012 618 114400.00
4. 19/11/2013 621 84300.00
5. 23/11/2012 626 99200.00
6. 30/11/2012 630 117400.00
Page 7 of 20
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Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
7. 05/12/2012 633 184000.00
8. 17/12/2012 642 96000.00
9. 28/12/2012 648 56000.00
10. 04/01/2013 653 14300.00
11. 14/01/2013 661 98000.00
12. 06/02/2013 672 88400.00
13. 26/02/2013 685 73500.00
14. 01/03/2013 689 23900.00
15. 17/03/2013 693 87000.00
16. 29/03/2013 699 55900.00
1615300.00
It is also strange that the appellant is marking cheque payments on regular basis to all the parties including Pal Enterprises, but no payments has been made after 22.10.2012relating to these bills which are outstanding even on 31.03.2013. The frequency of transaction and series no.of bills staring from 604 to 699 is also doubtful as before this the transaction from Pal Enterprises was made through bill no.2188, 2254, 2316 and 2361 from 20.06.2012 to 20.102012. As no independent confirmation was received from Pal Enterprises, the transaction of above-mentioned bills where the name of the appellant is missing could not be substantiated. Further, during the course of appellate proceedings the appellant could not produce any evidence of subsequent payments made relating to these bills. Hence, the addition of the amount of Rs.16,15,300/- relating to these bills of Pal Enterprises made by the Assessing Officer is confirmed and the addition of amount of Rs.34,81,759/- (5097059 -1615300) made by the Assessing Officer is deleted. The appellant will get relief accordingly.Page 8 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
(Refer page -11 to 14 Para- 5.3 of the appellate order {1.4} Contention of the Assessee to the hon'ble bench: -
A. THAT the Ld. CIT(A)- 20 has erred in passing the 'Appellate Order', without affording sufficient opportunity to the assessee.
B. THAT it is brought to your honor's kind notice that neither at the time of assessment, nor at the time of hearing of Appeal, the assessee was directed to produce evidence of payments made to M/s Pal Enterprises, post 31/03/2014.
C. THAT M/s Pal Enterprises is one of the business creditors of the assessee and has an amount receivable to the tune of Rs, 19,20,000/- from the assessee concern, as on 31/03/2014 (copy of ledger enclosed). The CIT(A)- 20 has only confirmed the addition of the Ld. AO an amount to the tune of Rs. 16,15,300/- because the bills/ invoices (16 nos.) did not have name of the assessee on the same.
D. Although, the evidence of payments made to M/s Pal Enterprises post 31/03/2014 are made available to the Hon'ble bench, along post 31/03/2014 are made available to the hon'ble bench, along with copies of all the bills/ invoices, ledger account & confirmation issued by M/s Pal Enterprise, to the assessee during the year under consideration and in the subsequent years.
E. THAT Copy of ledger accounts, confirmations, PAN, duly narrated bank statement in regard to the transactions between the assessee and the seller/ sundry creditor, who sold building material to the assessee during the year, namely, M/s Pal Enterprises (AKHPB4641B) are enclosed for your honor's ready perusal. The same were filed during assessment and appellate proceedings vide letter dated 17/02/2016, 18/11/2015 and 21/10/2015. Copies of letters are also enclosed for your reference.
F. THAT no opportunity was afforded to the assessee to establish if the payments were made to M/s Pal Enterprises in the subsequent years.
G. THAT keeping the facts and circumstances in view, the addition of Rs.
16,15,300/- on the above account may very kindly be deleted.
(2} D i s a l l o w a n c e o n a c c o u n t o f P e r s o n a l E x p e n s e s : -
{2.1) C o n t e n t i o n o f t h e A s s e s s i n g O f f i c e r ; -
The assessee in his books of A/c's claimed the following expenses which are reproduced as under:Page 9 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
Rs.22,932/-
(a) Car insurance Rs.50,361/-
(b) Interest on car Loan Rs.1,86,507/-
(c) Car depreciation Rs.2,59,800/-
Total Amount
As possibility of these expenses for non business/personal purpose could not be ruled out, due to the facts that no log book is maintained by the assessee nor is produced from which it can be verified that these expenses were used wholly and exclusively for the business use only.
Therefore, an ad-hoc edition of 20% of the total amount spent on these expenses Rs. 2,59,800/- i.e. Rs. 51,960/- is made and added back to the income of the assessee on account of personal use of these expenses.
{2.2} A p p e l l a n t ' s S u b m i s s i o n : -
19. THAT disallowance made on for. 20% disallowance of Rs.22,932/- from card insurance, Rs. 50,361/- as Interest on car loon has already been made by the AO in his order vide para IV (page 12 of the paper book). Meaning thereby the AO has made the same addition twice i.e. vide para IV & V both, in his order (refer page 12 of the paper book). Copy of ledger account is filed vide page no. 96 to 99 of the paper book. It also shows the kind of interest taken and the intention of the AO while passing the order.
20. That 20% of Rs.1,86,507/- claimed as car depreciation is disallowed. The deprecation is claimed at 15% of the total value, i.e. Rs. 1,86,507. The same is allowable under the provisions of the act. In addition to this, the AO has not given any reason before making the addition/disallowance of depreciation claimed. The addition/ disallowance may kindly be deleted.
21. That it may also be considered that assessee lives close by to his office. He does not use the vehicle for his personal use. He the vehicle to visit construction sites and makes purchase for building material within Delhi/NCR. The use of the said vehicle is completely official. Addition of Rs. 51,96.0/- is totally unjustified.
(Refer page-18 & Para -9.1 or 9.2 of the Appellate order) {2.3} D e c i s i o n o f t h e C I T ( A ) - X X : -
The AO has made adhoc addition @ 20% of the total amount spent on account of car insurance of Rs.22,932, interest on car loan of Rs.50,361/- and car depreciation of Rs.186507/-. The expenditure on car insurance and interest on car loan are fixed expenditure and has to be incurred by the appellant even if there is no personal element on such expenses. However, the car depreciation has to be disallowed u/s 38(2) of the Act on persona element specially on the ground that during the course of hearing vide order sheet entry dated 06.12.2016 the appellant had accepted this fact that the proprietor is having only one vehicle in his name which is used in the business and there is no vehicle in the name of his wife also for personal use which was claimed earlier. In this light, the personal use of the vehicle cannot be ruled out. However, the Page 10 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
disallowance @20% made by Assessing Officer is excessive and it is reasonable to restrict the disallowance @ 10% which comes to Rs.18, 650/- and appellant will get relief accordingly.
(Refer page -19 & Para -9.3 of the Appellate order) (2.4} Contention of the Assessee to the hon'ble bench:
A. THAT it is apparent that the gross profit has increased from 13.60 to 18.79 and net profit has increased from 5.92% to 15.33% from the assessment year 2013-14 which is quite reasonable in this line of business. Considering the facts & circumstances of the case, ad hoc addition @10% may very kindly be deleted on the above ground."
(B) Vide letter dated 20/06/2018 filed on behalf of the assessee, request was made for early hearing of the aforesaid appeal filed in Income Tax Appellate Tribunal ("ITAT", for short). However, the request was rejected by Co-ordinate Bench of ITAT, Delhi, on 28/07/2018 on the ground that there were no adequate reasons for early hearing. Vide letter dated 30.07.2018, the assessee was communicated that the assessee's request for early hearing had been rejected. The assessee's appeal was fixed for hearing on 17/12/2019 for which notice of hearing dated 18/10/2019 was sent to the assessee. On the date of hearing on 17/12/2019 none appeared for the assessee. The assessee's appeal was dismissed ex-parte (qua the appellant) vide order dated 18/12/2019 of ITAT.
However, the assessee was given liberty to approach ITAT for restoration of the appeal in accordance with proviso to Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963. (B.1) Vide application dated 21st January, 2021, the assessee requested for restoration of aforesaid appeal vide ITA No. 2293/Del/2017. Registry of ITAT has remarked that the Page 11 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
appeal is time-barred by 209 days. The relevant portion of the assessee's aforesaid application dated 21st January, 2021 is reproduced as under:
"It is respectfully submitted as under:
1. THAT the appeal in the above case was filed on 17.04.2017 and acknowledgement- cum- notice was given on the appeal petition itself (photocopy of acknowledgement enclosed @ANNEXURE- A).
2. THAT my counsel Sh. Sameer Malhotra, Advocate who personally filed the appeal was informed that the date of hearing would be intimated by post/ email in due course. Whereas, no notice for fixation of appeal was sent to me by post, neither the link for date of virtual/ physical hearing was intimated to me or my counsel through email.
3. THAT now I have received an order dated 18.12.2020 passed by the Hon'ble Bench 'F' of the hon'ble Tribunal, New Delhi- dismissing the appeal ex-parte and on merits.
4. THAT it is most humbly submitted that I have preferred the "Viyad_se Vishwas Scheme, 2020" vide Form 1&2 u/r 3 & 3(2) of the "Direct Tax Vivad se Vishwas Act. 2020" which was already filed on 20 08 2020 (Copy enclosed A N N E X U R E - B ) . After due consideration the Hon'ble Pr. Commission of Income Tax, New Delhi-12 issued an order under Form-3, r.w.r. 3 of the Direct Tax Vivad Se Vishwas Act, 2020, dated 15/12/2020 itself, i.e. before the date of order of the Hon'ble Bench-F ITAT, New Delhi. Copy of Form-3 is enclosed @ANNEXURE-C.
5. THAT it is pertinent to mention here that the Hon'ble members, Bench-
F have been kind enough to grant the liberty to me and approach Hon'ble ITAT for restoration of appeal, vide page- 27 of the Order dated 18/12/2020 (Copy of the Order is enclosed @ANNEXURE- D).
6. That the sole purpose of restoration of the appeal is for the assessee to withdraw the same, so the benefits of the DTVSVS, 2020 be availed.
7. That keeping in view the above facts and circumstances, it is most respectfully prayed that the appeal may very kindly be restored for hearing. Now, for future course of action, my counsel Sameer Malhotra, Advocate, be intimated on akmlegal.75gmail.com and/or [email protected]. If necessary, the same may also be Page 12 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
intimated on mobile on +919810007884 and or +919810072975." (B.2) Vide letter dated 12th March, 2021 modified application for restoration of the assessee's appeal was filed; relevant portion of which is reproduced below:
"2. THAT my counsel Sh. Sameer Malhotra, Advocate who personally filed the appeal was informed that the date of hearing would be intimated by post/ email in due course. Whereas, I received no notice for fixation of appeal through post and/or email nor the same was communicated to my counsel. Also, the Order dated 18/12/2019 has not been received by me or my counsel through post and /or email.
3. THAT now I have received an order dated 18.12.2019 passed by the Hon'ble Bench 'F' of the Hon'ble Tribunal, New Delhi- dismissing the appeal ex-parte and on merits. Since I have preferred the "Vivad se Vishwas Scheme, 2020", my counsel came to know about the above mentioned order dated 18/12/2019 only when he visited the Hon'ble Court on 18/12/2020 (i.e. 1 year after passing of the Order), for filing an application of withdrawal of the above-mentioned appeal. Due to the same, there is a delay in filing this MA before your honors. Copy of Application for Condonation of Delay to the effect is filed herewith, (Enclosed at ANNEXURE- G of this Paper Book- 2).
4. THAT it is most humbly submitted that 1 have preferred the "Vivad se Vishwas Scheme, 2020" vide Form 1&2 u/r 3 & 3(2) of the "Direct Tax Vivad se Vishwas Act. 2020" application for which was filed on 20/08/2020 before the Ed. Pr. CJT- 12, New Delhi (Copy already enclosed @ANNEXURE- B, Pages- 6-15 of Paper Book- 1). After due consideration the Hon'ble Pr. Commissioner of Income Tax, New Delhi- 12 issued an order under Form- 3, r.w.r 3 of the Direct Tax Vivad se Vishwas Act, 2020, dated 15/12/2020 itself. Copy of Form- 3 is already enclosed at ANNEXURE- C, Page- 16-17 of Paper Book- 1).
5. THAT it is further submitted that in order to save the precious time of the Hon'ble Court, the assessee has Deposited Tax in full to the tune of Rs. 5,04,891/- on 01/03/2021, vide Challan No. 00001, BSR Code 6360195 as per the Direct Tax Vivad se Vishwas Act, 2020 (Copy of Challan enclosed with submission dated 03/03/2021, placed on record on 04/03/2021).
6. THAT it is pertinent to mention here that the Hon'ble members, Bench- "F"
have been kind to grant liberty to me and approach Hon'ble 1TAT for restoration of this appeal, vide page- 27 of the Order dated 18/12/2019 (Copy of the Order is already enclosed at ANNEXURE- D, Pages 18-45 of Paper Book- 1).
7. THAT the purpose of restoration of the appeal is that, me and my counsel both were not aware of any hearing held before the Hon'ble Bench passed the Page 13 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
order dated 18 12 2019 ex-parte. Here it is necessary to mention that if the appeal is restored, since the appellant has already preferred "Vivad se Vishwas Scheme. 2020". due taxes have already been deposited: the appellant shall, and intends to. withdraw the appeal unconditionally and without going into the merits of the present matter ." (C) At the time of hearing before us on 19.03.2021, in connection with the assessee's miscellaneous application requesting for restoration of assessee's appeal, the assessee was not represented by anyone. We heard the Ld. Senior Departmental Representative ("Ld. Sr. DR", for short) who submitted that the main purpose of the request made by the assessee in the Miscellaneous Application, for restoration of assessee's appeal is, to avail of Vivad Se Vishwas Scheme, 2020 ("VSVS", for short). She further submitted that even if the assessee's appeal stands dismissed by ITAT, the assessee could still avail of VSVS, 2020; and further submitted that there was no embargo prohibiting the assessee from availing of VSVS even after the assessee's appeal is dismissed by ITAT. She further drew our attention to the fact that Designated Authority had already issued Certificate under Sub-Section (1) of Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020) The Direct Tax Vivad Se Vishwas Rules, 2020 in Form 3; intimating the amounts determined by Revenue to be payable by the assessee towards full and final settlement of the tax arrears covered by the declaration made by the assessee under VSVS; and she contended that there was no necessity for restoration of the assessee's appeal merely for enabling the assessee to avail of VSVS.
(C.1) There are two issues in the Miscellaneous Application filed by the assessee; firstly, whether bar of limitation prescribed u/s 254(2) of I.T. Act will apply; and secondly Page 14 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
whether there is sufficient cause for non-appearance on the part of the assessee when the assessee's appeal in ITAT was called on for hearing on 17/12/2019; within the meaning of proviso to Rule 24 of Income Tax (Appellate Tribunal) Rules, 1963. (D) We have perused the materials on record. On behalf of Revenue, Ld. Sr. DR has advanced the view that even after the assessee's appeal is dismissed by ITAT the assessee could still avail of VSVS 2020 and that there was no embargo prohibiting the assessee from availing of VSVS even after the assessee's appeal is dismissed by ITAT. It is a matter of record that aforesaid Form-3 has already been issued by Designated Authority under Sub-Section (1) of Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020) The Direct Tax Vivad Se Vishwas Rules, 2020. Therefore, the miscellaneous application filed by the assessee requesting for restoration of the aforesaid appeal is presently infructuous; and the issues in foregoing paragraph (C.1) are merely academic at present. Accordingly, the Miscellaneous Application of the assessee vide M.A. No. 24/Del/2021 is hereby dismissed being infructuous. (E) In the case of M/s Rita Plastics Pvt. Ltd.; Revenue filed appeal in ITAT vide ITA No. 4159/Del/2011 against the impugned appellate order dated 13.06.2011 of learned Commissioner of Income Tax (Appeals)-XVIII, New Delhi, raising the following grounds of appeal:
"1. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in accepting the claim of the assessee representing share capital of Page 15 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
Rs. 1,10,75,000/- whereas the facts clearly establish the same as bogus accommodation entry received from entry operator.
2. That on the facts and the circumstances of the case and in law the ld. CIT(A) has erred in relying upon the case law in the case of M/s Lovely Exports Pvt. Ltd. whereas the facts in the instant case are different.
3. That on the facts and the circumstances of the case and in law the ld. CIT(A) has erred in accepting the claim of the assessee representing unsecured loans of Rs. 29,07,958/- whereas the facts clearly indicates that the assessee has not produced evidences in support of the same.
4. That the appellant craves to be allowed to add any fresh grounds of appeal and / or delete or amend any of the grounds of appeal."
(E.1) Revenue's appeal was fixed for hearing on various dates. At the time of hearing on 16.03.2017 the assessee was represented by none. Revenue's appeal was allowed vide ex-parte (qua the respondent) order dated 13th April, 2017. Vide Miscellaneous Application dated 06.09.2017, the assessee requested for recalling of aforesaid order dated 13th April,2017 of ITAT to enable the assessee to represent its case. The relevant portion of the aforesaid Miscellaneous Application dated 06.09.2017 filed by assessee is reproduced as under:
"1. The Revenue had filed the above appeal in ITAT on 15.11.2011 for the assessment year 2007-08 which has been allowed in favour of Revenue vide order dated 13.04.2017 by your honour's. The appeal of Revenue was allowed due to absence of the applicant company on the date of hearing which was fixed for on 16.03.2017.
2. The applicant requests your honour to recall the order as it was prevented by bona fide reason for not being able to represent the case on the said date.
3. The applicant company has not been conducting any business since the past more than 5 years and the company's bank account has been treated as a Non Performing Asset (NPA) by the State Bank of India. The State Bank of India has taken possession of the factory premises of the applicant company and notices have been issued under SARFAESI Act and proceedings have been continuing in the Debt Recovery Tribunal. In the circumstances the applicant company has not been able to engage any counsel to present his case due to its inability to incur any financial cost for the same.Page 16 of 20
` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
4.The matter was being personally looked after by the undersigned in last two- three hearings due to inability of the applicant to incur financial cost on engagement of a counsel for the above case.
5. The applicant company's director Ashok Batra had himself been seeking adjournment it was sought lastly by him on 02.01.2017 and the case was adjourned to 16.03.2017.
6. Myself the director of the applicant company's could not represent the case fixed on 16.03.2017 nor seek any adjournment due to myself being ill, a copy of medical certificate evidencing my illness which prevented me from attending the above hearing is enclosed for your honours' perusal. An affidavit to this effect is also enclosed.
You honous' are requested to recall the order to enable the applicant company to represent its case. We hope the above would suffice to enable the Hon'ble Bench to give an opportunity to the applicant to represent its case.
(E.2) Vide letter dated 06.03.2021 filed from assessee's side, it was communicated to ITAT that the assessee sought benefit of VSVS 2020. It was further informed that the Designated Authority of Revenue had already issued Certificate under Sub-Section (1) of Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020) The Direct Tax Vivad Se Vishwas Rules, 2020 in Form 3. Copy of Form 3 issued by Designated Authority of Revenue was also filed along with aforesaid letter dated 06.03.2021 wherein Designated Authority has intimated the amounts determined by Revenue to be payable by the assessee towards full and final settlement of the tax arrears covered by the declaration made by the assessee under VSVS. At the time of hearing before us, the Ld. Authorized Representative ("Ld. AR", for short) for the assessee requested for recall of aforesaid ex-
parte order dated 13th April,2017 and further submitted that the assessee wished to avail of benefit under VSVS. He informed that relevant forms were already filed by the assessee under VSVS and further that the Designated Authority of Revenue had issued Page 17 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
Certificate under Sub-Section (1) of Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 (3 of 2020) The Direct Tax Vivad Se Vishwas Rules, 2020 in aforesaid Form 3.
(E.2.1) The issue in the Miscellaneous Application in the case of M/s Rita Plastics Pvt.
Ltd. is, whether there was sufficient cause for non-appearance on the part of the assessee when Revenue's appeal was called on for hearing on 16.03.2017; within the meaning of Proviso to Rule 25 of Income Tax (Appellate Tribunal) Rules, 1963.
(F) In this consolidated order, we have already taken the view in the case of Rajinder Singh vs. ACIT, in foregoing paragraph (D) of this order, that the Miscellaneous Application filed by the assessee requesting for restoration of the appeal is presently infructuous; and accordingly, the miscellaneous application of the assessee has been dismissed being infructuous. Following the same decision, we hold in the case of M/s Rita Plastics Pvt. Ltd. in aforesaid M.A. No. 550/Del/2017 also, that the application filed for recall of order dated 13th April,2017 of ITAT is infructuous presently. The issue referred to in foregoing paragraph (E.2.1) is presently academic in nature. Accordingly, the Miscellaneous Application filed by M/s Rita Plastics Pvt. Ltd. is dismissed being infructuous.
(G) By way of abundant caution, we hereby clarify that the assessee(s) will be at liberty to approach ITAT afresh for restoration of corresponding appeal(s) filed in ITAT vide ITA Nos.2293/Del/2017 and 4159/Del/2011 respectively; and for decision on issues Page 18 of 20 ` M.A. Nos.- 24/Del/2021 and 550/Del/2017.
Shri Rajinder Singh and M/s Rita Plastics Pvt. Ltd.
referred to in foregoing paragraphs (C.1) and / or (E.2.1), as the case may be; in case disputes raised in the aforesaid appeal(s) are not fully settled under VSVS. If any such request(s) is / are received from the assessee(s) for restoration of the appeal(s), the same will be considered in ITAT in accordance with law.
(H) For statistical purposes, both Miscellaneous Applications are treated as dismissed being infructuous.
Order pronounced in the Open Court on 25/03/2021.
Sd/- Sd/-
(AMIT SHUKLA) (ANADEE NATH MISSHRA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 25/03/2021
Pooja/-
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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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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