Case Law Details
C. M. Buildcon Pvt. Ltd. Vs PCIT (ITAT Delhi)
It can be appreciated form the impugned order that the primarily the Ld Revisional authority was not convinced as to how only on the basis of affidavit by the partner of M/s Cardio Technovention Ld. AO has given benefit to assessee and ignored the document impounded in the survey on M/s Cardio Technovention. The Bench is of considered opinion that certainly affidavit is not included in the definition of ‘Evidence’ under the Indian Evidence Act 1872, but where a quasi judicial authority wants any fact to be proved by way of an affidavit then the same cannot be ignored without rebutting the deposition on facts by some sort of evidence. As Section 30(c) of Code of Civil Procedure, provides that the Court can ask any fact to be proved by way of an affidavit similarly Section 131 of the Act vests powers with Tax authorities, amongst other, to enforce an individual’s attendance and to examine on oath.
Here in the case in hand the affidavit was filed on the directions of Ld. AO for which he had powers to call for filing an affidavit to prove the fact that cash was not received by M/s Cardio Technovention. The same could not have been left aside and inferences drawn on the basis of documents which otherwise did not have anything explicit and patent to hold different opinion. It is not self serving affidavit of the assessee but of concerned party from whom allegedly the assessee had benefited. There is no finding of Ld. PCIT as to which matter from the survey was contradicting the affidavit. The aforesaid narration of relevant queries made during re-assessment and replies of the assessee are sufficient to show that Ld. AO has asked for the affidavit, only to reaffirm that replies are supported with on oath deposition too. Ld. Pr.CIT has thus fallen in error to exercise powers u/s 263 to hold Ld. AO wrongly relied the affidavit from M/s Cardio Technovention. Grounds raised are sustained and the appeal of assessee is allowed. The impugned order u/s 263 of the Act is quashed.
FULL TEXT OF THE ORDER OF ITAT DELHI
The appeal is preferred by the Assessee against the order dated 19.03.2019 of CIT(A)-2, New Delhi (hereinafter referred as Ld. First Appellate Authority or in short Ld. ‘FAA’) in F. No. Pr. CIT/Order u/s 263/2018-19/2586 New Delhi arising out of an appeal u/s 250 of the Income Tax Act, 1961 (hereinafter referred as ‘the Act’), before it against the assessment order dated 15.11.2016 passed u/s 147/143(3) of the Act by the ITO, Ward-5(4), New Delhi (hereinafter referred as the Ld. AO).
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