IN INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: : NEW DELHI) BEFORE SHRI H.S.SIDHU, JUDICIAL MEMBER & SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) VIJ Construction Ltd., Addl.CIT, 6/3, Kalkaji Extension Opp. Vs Range-17, Nehru Place, Kalakaji, New Delhi. New Delhi-110019. PAN-AAACV2060N APPELLANT RESPONDENT Appellant by None Respondent by Sh.D.S.Rawat, Sr.DR ORDER PER ANADEE NATH MISSHRA, AM [A]. This appeal is filed by assessee against impugned order dated 30.03.2013 passed by Learned Commissioner of Income Tax(Appeals)-19, New Delhi [in short Ld.CIT(A) ] pertaining to 2009-10 assessment year. grounds of appeal are as under:- l. On facts and circumstances of case and in law, Ld CIT (Appeals 19 ) New Delhi has erred upholding additions made by learned Assessing officer assessing income of assessee at Rs 6,59,53,300/- instead returned income of Rs. 2,28,35,229 2. order of assessing officer is not based on law and facts of case and Learned CIT (Appeals) 19 New Delhi has ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) erred in upholding additions made by Learned Assessing Officer. 3. On facts and circumstances of case learned CIT has erred in upholding addition of Rs 288,000/- made by Learned Assessing Officer on account of interest free deposits. 4. On facts and circumstances of case learned CIT has erred in upholding addition of Rs 3,99,00,000/- made by Learned Assessing Officer on account of Share Application Money. 5. On facts and circumstances of case learned CIT has erred in upholding addition of Rs 29,30,000/- made by Learned Assessing Officer on account of unsecured Loans u/s 68 of Income Tax Act. 1961. [B]. At time of hearing before us, Revenue was represented by Sh.D.S.Rawat and assessee was represented by none. In absence of representation from assessee s side, we heard Learned Departmental Representative [in short Ld.DR ]. Ld.DR opposed appeal filed by assessee on grounds of limitation and also on merits. It was his view that appeal of assessee should be dismissed as time barred as appeal was filed beyond prescribed time limit u/s 253(3) of Act. [C]. This appeal has been filed beyond prescribed time limit u/s 253(3) of Income Tax Act, 1961. We find from record that defect notice was issued to assessee by Registry intimating that appeal was time barred. We also find from record that Page | 2 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) assessee has filed affidavit praying for condonation of delay in filing of appeal. In aforesaid affidavit, Mr. Vinod Vij, Director of assessee company has referred to problems faced by assessee due to ill health of Directors, ongoing various legal proceedings on company due to financial defaults, changes in staff due to nonpayment of wages etc. We also find from record that medical papers of Mr.Vinod Vij, Mrs. Preeti Vij [Wife of Mr. Vinod Vij] and death certificate of aforesaid Mrs. Preeti Vij have also been filed from assessee s side. Having regard to facts and circumstances of case, we decline to dismiss appeal on grounds of limitation and condone delay in filing of this appeal. Accordingly, we admit appeal having regard to section 253(5) of Income tax Act, 1961. [D]. On merits, Ld.DR relied on order of Ld.CIT(A). Relevant portion from order of Ld.CIT(A) is reproduced as under:- 2.1 In course of appellate proceedings, appellant filed application for admission of additional evidence under rule 46A. copy of application u/r 46A was sent to A.O. vide letter dated 31.8.12 for his comments. A.O. has submitted remand report dated 10.10.12 through Addl. C.I.T. Range-17 vide her letter dated 10.10.12. 2.2 In remand report, A.O. and Addl. CIT have observed as follows regarding admissibility of additional evidence: Reasons are not there as to what prevented assessee from filing present evidence now instead of at time of Page | 3 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) assessment. Sufficient opportunities given at time of assessment detailed questionnaire issued on 24-08-2011 followed by notice u/s 142(1) dated 16-11-2011, letter dated 09-12-2011 and 14-12-2011, show cause notice dated 2012- 2011 and 23-12-2011 which goes to prove that there is no sufficient ground which prevented him for filing details during course of assessment and for which he has requested for admittance of additional grounds/evidences. Hence, same may be rejected. Comments of Addl. CIT:- In addition to what A.O. has stated above numerous case laws supports above position namely Moser Baer, FairDeal Filaments Ltd.(2008) 302 ITR 0173 Gujrat wherein it has been stated that no person is entitled to seek admission of additional evidence as matter of right. Sufficient opportunity were granted to assessee in present case. 2.3 In his rejoinder, appellant has stated as follows regarding admission of additional evidence: In above matter appellant had furnished its reply earlier along with certain evidence which could not be furnished before learned Assessing Officer. '-The Appellant also made request for admission of this fresh evidence under Rule 46A of Income Tax Rules, 1962. Your Honour had called for remand report from learned Assessing officer who furnished same vide his letter dated 10.10.2012. learned assessing officer has firstly objected to admission of fresh evidence under rule 46(A). learned Assessing officer has however wrongly Page | 4 ITA No:-- 1948/Del/2015 (Assessment Year: 2009-10) 20 Page | 5 ITA No:-- 1948/Del/2015 (Assessment Year: 2009-10) 20 Page | 6 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 7 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 8 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 9 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 10 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 11 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 12 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 13 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 14 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 15 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 16 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 17 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 18 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 19 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 20 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 21 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 22 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 23 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 24 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 25 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 26 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 27 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 28 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 29 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 30 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 31 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 32 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Page | 33 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) [D.1]. On merits, we find that Ld. CIT(A) has passed speaking order. Relevant portion of impugned order of Ld. CIT(A) has already been reproduced in foregoing paragraph [D] of this order. During appellate proceedings in Income Tax Appellate Tribunal ( ITAT , for short) no material has been brought for our consideration to persuade us to take view different from view taken by Ld. CIT(A) in impugned order. After hearing Ld. DR and after perusal of materials on record, and further, in view of foregoing discussion, we decline to interfere with impugned order of Ld. CIT(A). [D.2]. Before we part; we explicitly clarify that assessee will be at liberty to approach ITAT for restoration of appeals in accordance with Proviso to Rule 24 of Income Tax (Appellate Tribunal), Rules, 1963. If assessee does approach ITAT for restoration of appeals in ITAT, matter will be considered in accordance with law having regard to facts and circumstances. [E]. In result, appeal filed by assessee is dismissed. Order pronounced in open court on 22nd day of August, 2019. Sd/- Sd/- (H.S.SIDHU) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 22.08.2019 * Amit Kumar * Page | 34 ITA No:- 1948/Del/2015 (Assessment Year: 2009-10) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Page | 35 VIJ Construction Ltd. v. Addl. CIT, Range-17, New Delhi