Delhi High Court
Paramount Residency Private ... vs Deputy Commissioner Of Income Tax ... on 27 September, 2021
$~S-20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ITA 148/2021 & CM APPL. 33270-271/2021
PARAMOUNT RESIDENCY PRIVATE
LIMITED ..... Appellant
Through: Dr. Rakesh Gupta, Advocate with
Mr.Somil Agarwal and Mr. Anshul
Mittal, Advocates.
versus
DEPUTY COMMISSIONER OF INCOME TAX
& ANR. ..... Respondents
Through: Mr. Sunil Agarwal, Advocate with
Mr.Tushar Gupta and Mr.Samarth
Chaudhari, Advocates.
% Date of Decision: 27th September, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
MANMOHAN, J: (Oral)
1. The appeal has been heard by way of video conferencing.
2. Present appeal has been filed challenging the order dated 11th
December, 2020 passed by Income Tax Appellate Tribunal (hereinafter
referred to as 'ITAT') in ITA No. 6150/Del/2014 for the Assessment Year
2011-12, whereby the appeal of the respondent/revenue was allowed.
3. After some arguments, learned counsel for the appellant states that he
does not wish to contest the finding of the Tribunal that the Commissioner,
Income Tax (Appeal) [hereinafter referred to as 'CIT(A)'] had erroneously
held that the same amount could not have been taxed twice in the same year
in hands of different tax entities. He, however, emphasises that neither the
Commissioner, Income Tax (Appeal) nor the ITAT adjudicated upon the
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:29.09.2021
16:33:14
merits of the case.
4. Issue notice. Mr. Sunil Agarwal, Advocate accepts notice on behalf
of the respondents. He states that in view of the limited submission
advanced by learned counsel for the appellant, he would not like to file any
written reply or documents. He, however, submits that in view of the
judgment of the Supreme Court in Principle Commissioner of Income Tax
(Central-I) vs. NRA Iron & Steel Pvt. Ltd., (2019) 15 SCC 529 the onus
was on the respondent/assessee under Section 68 of the Act to prove the
identity and creditworthiness of the lenders and genuineness of the loans.
5. A perusal of the paper book reveals that neither CIT(A) nor ITAT had
considered the appellant's defence with regard to the issue of identity and
creditworthiness of the lenders and genuineness of the loans as stipulated
under Section 68 of the Act.
6. Consequently, the following question of law is framed in the present
appeal:-
"Whether, on the facts and in the circumstances of the case, the
Tribunal was wrong in reversing the decision of CIT(A) without
remanding the case to the CIT(A) for adjudication of the case on
merits"
7. The Supreme Court in Principle Commissioner of Income Tax
(Central-I) vs. NRA Iron & Steel Pvt. Ltd.(supra) has held as under:-
"13.1. The assessee is under a legal obligation to prove the
genuineness of the transaction, the identity of the creditors, and
credit-worthiness of the investors who should have the financial
capacity to make the investment in question, to the satisfaction of
the AO, so as to discharge the primary onus.
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:29.09.2021
16:33:14
13.2. The Assessing Officer is duty-bound to investigate the credit-
worthiness of the creditor/ subscriber, verify the identity of the
subscribers, and ascertain whether the transaction is genuine, or
these are bogus entries of name-lenders.
13.3. If the enquiries and investigations reveal that the identity of
the creditors to be dubious or doubtful, or lack credit-worthiness,
then the genuineness of the transaction would not be established.
In such a case, the assessee would not have discharged the
primary onus contemplated by Section 68 of the Act."
8. Keeping in view the fact that CIT(A) had not considered the
appellant's defence with regard to identity and creditworthiness of lenders
and genuineness of the loans in question, this Court remands the matter to
the CIT(A) to consider the appellant's said defence under Section 68 of the
Act. At the cost of repetition, it is emphasised that the finding given by the
CIT(A) in the impugned order dated 8th August, 2014 is set aside
9. With the aforesaid direction, the appeal along with pending
applications stands disposed of.
10. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
NAVIN CHAWLA, J
SEPTEMBER 27, 2021/TS
Signature Not Verified
Digitally Signed By:JASWANT
Signing Date:29.09.2021
16:33:14
