M/s. PNM Enterprises, New Delhi V. ITO, Noida

CO 152/DEL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7657 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-08-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 03-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Assessee Lawyers: SAROJ KUMAR JHA
• Keywords: Source of fund; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `F : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER ITA NO.1119/DEL /2012 (ASSESSMENT YEAR : 2008-09) ITO, WARD 3, VS. PNM ENTERPRISES, NOID. C-16, COMMUNITY CENTRE, SAFDARJUNG DEVELOPMENT AREA NEW DELHI. (PAN/GIR NO.AAFFP7452C) AND C.O. NO.152/DEL./2012 (IN I.T.A. NO.1119/DEL./2012) (ASSESSMENT YEAR : 2008-09) PNM ENTERPRISES, VS. ITO, WARD 3, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SAROJ KUMAR JHA, CA REVENUE BY : DR B.R.R. KUMAR, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE DEPARTMENT AND CROSS OBJECTIONS OF THE ASSESSEE EMANATES FROM THE ORDER PASSED BY THE CIT(A), GHAZIABAD DATED 7.1 2.2011 RELEVANT TO ASSESSMENT YEAR 2008-09. 2. THE DEPARTMENT HAS CHALLENGED, THE DELETION OF A DDITION OF RS.16,27,141/-, BY RESTRICTING IT TO RS.10,70,000 OUT OF TOTAL G.P. AD DITION OF RS.26,97,141/-, ADMITTING ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE I.T. RULES AND FURTHER DELETION OF ADDITION OF RS.17,96,554/- WITH REGARD TO CASH DEPO SITS MADE WITH THE FIRM BY PARTNERS IN I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 2 THE SHAPE OF CAPITAL, WHEREAS IN THE C.O. OF THE AS SESSEE, ACTION OF CIT(A) IN RESTRICTING THE G.P. ADDITION OF RS.10,70,000 HAS BEEN CHALLENG ED WITH THE PRAYER TO DELETE THE ENTIRE ADDITION OR IN ALTERNATIVE TO REDUCE THE SAME. 3. AS REGARDS FIRST ISSUE IN THE APPEAL OF THE REVE NUE, WHICH IS COMMON WITH THE C.O. OF THE ASSESSEE, FACTS INDICATE THAT ASSESSING OFFICER NOTICED A STEEP FALL IN G.P. FROM 49.02% OF LAST YEAR TO 18.89% THIS YEAR. THE ASSES SING OFFICER ASKED THE ASSESSEE TO EXPLAIN A HUGE DOWNFALL. THE ASSESSEE SUBMITTED TW O EXPLANATIONS - (A) THE ELECTRICITY EXPENSES HAD INCREASED BECAUSE OF DISCONNECTION OF ELECTRICITY LINE FOR 10 DAYS; AND (B) THE COST OF RAW-MATERIAL HAS INCREASED. NOT FINDING THE EXPLANATION TO BE SATISFACTORY, THE ASSESSING OFFICER WANTED THE ASSESSEE TO FURNISH DETAILS, EXPLANATIONS AND ALSO BOOKS BUT THE ASSESSEE DID NOT PRODUCE THE BOOKS OF ACCOUNT ON THE GROUND THAT BOOKS HAD BEEN DESTRO YED. COMPLETE BILLS AND VOUCHERS OF PURCHASERS WERE NOT PRODUCED WHILE NO BILLS FOR SA LES WERE PRODUCED. STOCK REGISTER WAS ADMITTEDLY NOT MAINTAINED. ALSO, QUANTITATIVE DETA ILS OF OPENING AND CLOSING STOCK WAS NOT AVAILABLE. FURTHERMORE, BILLS AND VOUCHERS FOR VARIOUS EXPENSES WERE NOT PRODUCED AND RELYING UPON DECISION OF HONBLE SUPREME COURT IN THE CASE OF KECHWALA GEMS VS. JCIT (288 I.T.R. 10), THE ASSESSING OFFICER REJECTE D THE BOOKS AND ADOPTED THE LAST YEAR G.P. OF 49% WHICH LEAD TO THE ADDITION OF RS.26,97, 141/-. 4. THE ASSESSEE TOOK UP THE MATTER IN APPEAL AND CI T(A) WHILE CONSIDERING THE PLEA OF THE ASSESSEE AS RAISED FOR DELETION OF THE ADDIT ION IN REGARD TO FIRST ISSUE, HAS CONCLUDED BY UPHOLDING THE REJECTION OF BOOKS AND SUSTAINING PART ADDITION AFTER ANALYZING THE FACTS, ARGUMENTS AND MATERIAL ON RECORD AS UNDER: I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 3 SUM AND SUBSTANCE OF THE ENTIRE ANALYSIS AS ABOVE IS THAT THE APPELLANTS EXPLANATION REGARDING LOSS IN G.P. & N.P. CANNOT BE ACCEPTED ONLY PARTLY. IF WE TAKE THE REVISED FIGURE OF G.P. FOR THIS YEAR AT 27%; THEN T HE FALL IN G.P IS AROUND 22% (49%(-) 27%). IN ABSOLUTE TERM, THIS MEANS A DECREASE IN P ROFIT OF RS.19,70,000/-. OUT OF THIS, THE PORTION WHICH CAN BE ASCRIBED TO THE ACCEPTABLE REASONS FOR FALL IN G.P. WOULD BE ; (A) A REASONABLE SUM OF RS.2 LACS O F INCREASE IN PRICES OF RAW MATERIAL, AND (B) LOSS OF STOCK DUE TO POWER DISCONNECTION OF AROUND RS.4 LACS. (C) ANY OTHER POSSIBLE VARIATION TO AN EXTENT OF RS.3 LACS. THIS AGGREGATE TO AROUND RS.9 LACS; SO FALL IN G.P./N.P. CAN BE TREATED AS EXPLAINED TO THIS EXTEN T ONLY. THIS MEANS THAT THE BALANCE I.E. RS.10,70,000/- (R S.19,70,000/- (-) RS.9,00,000/-) WOULD BE TREATED AS ADDITION ON ACCOUNT OF REJECTIO N OF BOOK RESULTS. AS FAR AS REJECTION OF BOOKS IS CONCERNED, I UPHOL D THE VIEW OF ASSESSING OFFICER. THE UNDISPUTED FACTS ON RECORD ARE THAT BOOKS WERE NOT PRODUCED AND ALSO MOST OF THE PURCHASE VOUCHERS/BILLS ARE NOT THERE. ALSO STOCK REGISTER IS NOT MAINTAINED AND THERE IS NO SANCTITY TO THE FIGURES OF OPENING AND CLOSING S TOCK WHICH ASSESSEE HAS SHOWN. ALL THESE COMBINED WITH THE FACT OF VERY VERY STEEP AND SUDDEN DECREASE IN GROSS PROFIT AND NET PROFIT ARE SUFFICIENT TO WARRANT REJECTION OF B OOKS. THE COURT CASE CITED BY THE ASSESSING OFFICER DIRE CTLY APPLIES TO THE FACTS OF THE PRESENT CASE. BESIDES THIS CASE LAW; I ALSO RELY O N THE FOLLOWING CASE LAWS: 1. MACMILLAN & COMPANY, 33 I.T.R. 182 OF ITO NOT BOUND BY DECLARED PROFITS. 2. NAMASIBAYAN CHETTIAR, 38 I.T.R. 579 (SC) NON M AINTENANCE OF STOCK REGISTER AND JUSTIFIED REJECTION OF BOOKS. I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 4 3. A.P. SINGH A.R. & BROTHERS 210 I.T.R. 406 (ALLD. ) ABSENCE OF STOCK REGISTER, VOUCHERS ETC. AND EXISTENCE OF FLOW PROFI TS ARE SUFFICIENT FOR REJECTION OF BOOKS. 4. KISHAN CHAND CHELA RAM 114 I.T.R. 671 (BOM.) N ON MAINTENANCE OF STOCK REGISTER AND NON RECORDING OF SALES WITH IDENTIFIAB LE DETAILS ARE GOOD GROUNDS FOR REJECTION OF ACCOUNTS BOOKS. 5. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT HA S COME UP IN APPEAL AND WHILE RELYING UPON THE ASSESSING OFFICERS ORDER, IT WAS PLEADED TO SET ASIDE THE ORDER OF CIT(A) AND RESTORING THAT OF THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT ASSESSEE IS RUNNING A SUBWAY IN WHICH FOOD ITEMS ARE SOLD A T HIGHER PRICE THAN BEING SOLD IN OPEN MARKET OR ORDINARY RESTAURANTS AND THERE WAS ONLY L ITTLE INCREASE IN THE ELECTRICITY EXPENSES AND BECAUSE DISCONNECTION OF THE ELECTRICI TY LINE FOR 10 DAYS AND BECAUSE OF INCREASE IN COST OF RAW-MATERIAL WAS ALSO NOT SUBS TANTIAL. THEREFORE, CIT(A) WAS NOT JUSTIFIED IN GRANTING RELIEF TO THE ASSESSEE AND IM PUGNED ADDITION MADE BY THE ASSESSING OFFICER MAY BE RESTORED. 6. LD.COUNSEL FOR THE ASSESSEE WHILE RELYING UPON T HE ORDER OF CIT(A) HAS PLEADED THAT THERE WAS REASONS FOR NON-PRODUCTION OF BILLS AND VOUCHERS, BUT ALL COMPUTER DETAILS WERE FURNISHED AND ASSESSING OFFICER HAS NOT PLACED ANY MATERIAL ON RECORD TO SHOW THE CONTENTION OF THE ASSESSEE TO BE INCORRECT OR NOT J USTIFIED. THEREFORE, ADDITION WAS NOT CALLED FOR AT ALL, CIT(A) HAS GIVEN PART RELIEF AN D AGAINST THE PART ADDITION SUSTAINED, ASSESSEE DID FILE CROSS OBJECTIONS TO DELETE THE ENTIRE ADDITION, WHEREAS ON OTHER POINTS, IT IS IN SUPPORT OF THE ORDER OF THE CIT(A), THEREFOR E, THE APPEAL OF THE DEPARTMENT MAY BE DISMISSED AND ADDITION, TO THE EXTENT SUSTAINED MAY BE DELETED OR ALTERNATIVELY BE REDUCED TO LARGER EXTENT. I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 5 7.1 WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATER IAL ON RECORD. WE HAVE ALSO CAREFULLY GONE THROUGH THE ORDERS OF THE ASSESSING OFFICER AS WELL AS CIT(A) AND IT IS FOUND THAT ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUN T TAKING THE PLEA THAT THOUGH IT HAS MAINTAINED REGULAR BOOKS OF ACCOUNT BUT WAS UNABLE TO PRODUCE THE BOOKS OF ACCOUNT BECAUSE THOSE HAVE BEEN DESTROYED DUE TO WATER LOGG ING IN THE BASEMENT. THE ASSESSEE IS FOUND TO HAVE FURNISHED COMPUTERIZED DETAILS, WH ICH WERE INTACT IN THE COMPUTER OF THE ASSESSEE, BUT STILL CERTAIN DEFECTS AND DEFICIENCI ES, WHICH WERE DULY POINTED OUT TO THE ASSESSEE REMAINED TO BE REMOVED/CORRECTED/EXPLAINED OR SUBSTANTIATED BY LEADING NECESSARY EVIDENCE OR MATERIAL. SO, ASSESSING OFF ICER WHILE REJECTING THE BOOK RESULT BY APPLYING PROVISIONS OF SECTION 145(3) OF THE I.T. A CT, HAS PROCEEDED TO MAKE THE ADDITION WHILE DISCUSSING COMPARABLE CASES, CASE LAW AND APP LYING EARLIER YEAR PROFIT RATE TO MAKE THE ADDITION OF RS.26,97,141/- AND IN APPEAL CIT(A) RESTRICTED SUCH ADDITION TO RS.10,70,000/- OUT OF THE TOTAL G.P. ADDITION AND D EPARTMENT IS IN APPEAL AGAINST DELETION OF THE PART ADDITION WHEREAS ASSESSEE IS IN CROSS O BJECTION AGAINST SUSTAINING PART ADDITION AND NOW CONSIDERING THE RIVAL SUBMISSIONS AND MATER IAL ON RECORD, WE FIND THAT IN VIEW OF SPECIFIC DEFICIENCIES AND SHORTCOMINGS POINTED OUT TO THE ASSESSEE, SAME WERE NOT RECTIFIED OR CORRECTED OR RECONCILE BY ADDICING ANY MATERIAL OR EVIDENCE. THEREFORE, THE ACTION OF CIT(A), IN CONFIRMING THE ORDER OF ASSESS ING OFFICER TO REJECT THE BOOKS RESULT, IS FOUND TO BE JUSTIFIED WHICH IS UPHELD. 7.2 AS REGARDS QUANTUM IN G.P. ADDITION IS CONCERNE D, WE FIND THAT SINCE DEFECTS AND DEFICIENCIES POINTED OUT HAVE NOT BEEN CURED OR REC TIFIED BY THE ASSESSEE, THEREFORE, ADDITION IS CALLED FOR, BUT WHILE MAKING THE ADDIT ION, ASSESSING OFFICER HAS MADE ONE I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 6 ESTIMATE AND CIT(A) HAS MADE SECOND ESTIMATE WHEREA S COMPARABLE CASES ARE THERE WHERE G.P. SHOWN BY OTHER SIMILAR ASSESSEE IS HIGHE R, THEREFORE, ADDITION IN THIS REGARD IS CALLED FOR, BUT SO FAR AS QUANTUM OF ADDITION IS CO NCERNED, SAME STILL APPEARS TO BE ON HIGHER SIDE. AS SUCH WHILE ACCEPTING ALTERNATIVE P LEA OF THE ASSESSEE AS RAISED IN THE C.O. OF THE ASSESSEE IN THIS REGARD, WE FIND IT JUST AND APPROPRIATE TO FURTHER RESTRICT SUCH ADDITION TO RS.5,00,000/- AS RESTRICTED TO RS.10,70 ,000/- BY LD.CIT(A) AGAINST ADDITION OF RS.26,97,141/- MADE BY THE ASSESSING OFFICER. WE O RDER ACCORDINGLY. 8. SO FAR AS PLEA OF THE REVENUE ABOUT VIOLATION OF RULE 46A OF THE I.T. ACT, 1961 IS CONCERNED, NO SUBSTANTIAL ARGUMENTS HAS BEEN ADVANC ED BY THE LD.DR. IN THIS REGARD AND OTHERWISE ACTION OF CIT(A), BEING FREE FROM ANY INF IRMITY OR FLAW, HAS BEEN FOUND TO BE JUST AND APPROPRIATE. THEREFORE, PLEA OF THE REVEN UE ON THIS ISSUE IS DISMISSED. 9. AS REGARDS THIRD ISSUE, IN RELATION TO DELETION OF ADDITION OF RS.17,96,564/-, MADE ON ACCOUNT OF ACCRETION IN CAPITAL ACCOUNT, BY THE ASSESSING OFFICER, ON THE GROUND THAT AS THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF A DDITIONS MADE IN THE CAPITAL ACCOUNT OF THE PARTNERS, MR. ABHIMANYU NEHRA AND SHRI SANDEEP MANAKTALA IS CONCERNED, THE LD.CIT(A), WHILE DELETING THE IMPUGNED ADDITION, HA S MADE FOLLOWING OBSERVATIONS AS PER PARA. 5.3 OF HIS ORDER AT PAGE 23 TO DELETE THE IMPUGNED ADDITION AS UNDER: THE POINT WORTH OBSERVING ON THIS ISSUE IS THAT, B OTH THESE PARTNERS ARE ASSESSED TO TAX AND HENCE ARE IDENTIFIABLE PERSONS OF REPUTE. THEY HAVE CONFIRMED TO HAVE MADE THESE CONTRIBUTIONS INTO THEIR CAPITAL ACCOUNTS AND THE NET CONTRIBUTIONS I.E. ALL DEPOSITS AS WELL AS WITHDRAW ALS DULY APPEAR IN THE BOOKS OF ACCOUNT. THUS, IT CAN BE SAID THAT GENUINENESS OF TRANSACTIONS CANNOT BE QUESTIONED. NOW, REGARDING CREDIT WORTHINESS OF THESE TWO PARTN ERS; FACTS ARE CLEARLY ON RECORD THAT THEY ARE ASSESSED TO TAX, SHOWING A REASONABLE TOTAL INCOME YEAR TO YEAR. I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 7 FURTHER, DETAILED CASH FLOW CHART HAS BEEN SUBMITTE D IN CASE OF BOTH THESE PARTNERS SO AS TO SHOW THAT THE DEPOSITS MADE BY TH ESE PARTNERS IN THEIR CAPITAL ACCOUNTS IN THE ASSESSEE FIRM, WERE FROM PRIMA-FACI E ACCEPTABLE SOURCES VIZ. CASH WITHDRAWALS MADE FROM BANK ACCOUNTS AND ALSO SAVING S MADE IN PAST YEARS. INDEED THERE IS SOME LACUNE IN THE EXPLANATION REGA RDING SOURCE OF FUNDS. BUT THESE LACUNE ARE NOT STRONG ENOUGH SO AS TO MAK E THESE PERSONS A CREDITOR OF LOW MEANS AS COMPARED TO THE AMOUNT OF DEPOSITS INV OLVED. IN OTHER WORDS, THE EXPLANATION FOR THE SOURCE OF FUNDS IS NOT ALL TOGE THER REJECT ABLE. ASSESSING OFFICER HAS FAILED TO APPRECIATE THAT BOTH THE CRED ITORS ARE IDENTIFIABLE PERSONS, BEING THE PARTNERS OF THE ASSESSEE FIRM ITSELF; THE Y HAVE NOT ONLY CONFIRMED THESE TRANSACTIONS BUT THEY ALSO SUBMITTED A PRIMA FACIE CASH FLOW CHART. ALSO THEY ARE ASSESSED TO TAX. HENCE, ANY FURTHER ENQUIRY REGARD ING THE SOURCE OF FUNDS AND ANY FURTHER ADDITION, IF ANY, ON ACCOUNT OF UNEXPLAINED FUND WOULD BE APPROPRIATE ONLY IN THE HANDS OF THE RESPECTIVE PARTNER(S). AS FAR AS ASSESSEE FIRM IS CONCERNED IT HAS CLEARLY DISCHARGED ITS ONUS SEPARATELY AS PLACE D UPON IT VIDE SECTION 68 OF THE ACT. WHILE HOLDING SO, CIT(A) HAS SUGGESTED THE ASSESSIN G OFFICER TO TAKE REMEDIAL MEASURES IN THE HANDS OF THE PARTNERS, AND IF DEEM FIT, MAKE ADDITION IN THE HANDS OF THE PARTNERS. 10. AGGRIEVED BY THIS ORDER OF CIT(A), DEPARTMENT H AS COME UP IN APPEAL, WHILE RELYING UPON CASE LAWS AS CITED IN THE CASE OF CIT VS. SHIV SHAKTI TIMBERS, 229 I.T.R. 505, ANAND RAM RAITYANI VS. CIT, 223 I.T.R. 544 AND SHANTA DEVI (SMT. VS. CIT, 171 I.T.R. 532 (P&H), IT WAS PLEADED FOR SETTING ASIDE THE ORDER OF CIT(A) AND RESTORING THAT OF THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT SINCE ASSESSEE COULD NOT PROVE THE SOURCE OF ADDITIONS MADE IN THE ACCOUNT OF THE PART NERS IN THE BOOKS OF THE FIRM, THEREFORE, ADDITION HAS RIGHTLY BEEN MADE AND CIT(A)S ACTION IS NOT JUSTIFIED IN DELETING THE IMPUGNED ADDITION. IT WAS THUS PLEADED FOR RESTORI NG THE ORDER OF THE ASSESSING OFFICER. 11. WHEREAS LD.AR OF THE ASSESSEE, WHILE RELYING UP ON THE ORDER OF CIT(A) IN THIS REGARD, HAS PLEADED FOR CONFIRMATION OF THE IMPUGNE D ORDER AS ASSESSEE HAS DISCHARGED THE ONUS LAY UPON IT WITH REGARD TO THE AMOUNTS INT RODUCED IN THE CAPITAL OF THE PARTNERS. HENCE, CIT(A) HAS ALSO FURTHER SUGGESTED TO THE ASS ESSING OFFICER TO TAKE REMEDIAL I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 8 MEASURES IN THE HANDS OF THE PARTNERS. THEREFORE, ORDER OF CIT(A) IS PERFECTLY JUSTIFIED WHICH CALLS FOR NO INTERFERENCE, AS SUCH IT MAY BE CONFIRMED. 12. WE HAVE HEARD BOTH THE SIDES, CONSIDERED THE MA TERIAL ON RECORD AS WELL AS PRECEDENTS RELIED UPON BY THE LD.COUNSEL FOR THE A SSESSEE. IT IS NOT IN DISPUTE THAT CERTAIN ACCRETION IN CAPITAL OF THE PARTNERS IS THE RE IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. ASSESSEE HAS NOT ONLY GIVEN CONFIRMATION AND ALSO C ASH FLOW STATEMENT ETC. TO JUSTIFY THE SOURCE OF INVESTMENT MADE BY THE PARTNERS OF THE FI RM, BUT ALSO ALL OTHER RELEVANT PAPERS AND MATERIAL. NEITHER ANY CONTRARY MATERIAL HAS BE EN SUBMITTED BY THE DEPARTMENT NOR ANY INFIRMITY OR FLAW IN THIS REGARD HAS BEEN POINT ED OR NOTICED BY THIS BENCH. KEEPING IN VIEW THE ENTIRELY OF FACTS, CIRCUMSTANCES AND MATER IAL ON RECORD, WE ARE NOT INCLINED TO INTERFERE IN THE ORDER PASSED BY THE CIT(A) ON THI S ISSUE. AS SUCH, WHILE CONCURRING WITH HIS FINDING AND CONCLUSION AS DRAWN BY CIT(A), WE UPHOLD HIS ORDER ON THIS ISSUE AND DISMISS THE APPEAL OF THE REVENUE. 13. AS A RESULT, APPEAL OF THE REVENUE IS DISMISSED WHEREAS C.O. OF THE ASSESSEE GETS ACCEPTED PARTLY. ORDER PRONOUNCED IN OPEN COURT ON 01.08.2012. SD/- SD/- (A.N. PAHUJA) (U.B.S. BEDI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.08. 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXVI, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT I.T.A. NO.1119/DEL./2012 & C.O. NO.152/DEL./2012 (A.Y. : 2008-09) 9 7. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERIN G THE MATERIAL ON RECORD AND DOCUMENTARY EVIDENCE AVAILABLE, WE FIND THAT THE AS SESSEE IN THIS CASE COULD NOT BE ABLE TO PRODUCE THE BOOKS OF ACCOUNT WHICH WERE STATED T O HAVE BEEN MAINTAINED ON REGULAR BASIS, AS SAME WERE STATED TO BE DESTROYED DUE TO W ATER LOGGING IN THE BASEMENT AS A RESULT OF HEAVY RAINS. THE ASSESSEE DID TRY TO SUB STANTIATE THE FIGURES FILED WITH THE RETURN BY FURNISHING COMPUTERIZED DETAILS WHICH WERE STATE D INTACT IN THE COMPUTER OF THE ASSESSEE, BUT STILL THERE WERE MORE DEFECTS AND DEF ICIENCIES NOTICED/POINTED OUT BY THE ASSESSING OFFICER TO THE ASSESSEE WHICH REMAINED TO BE EXPLAINED/REMOVED. IT IS THE MAIN CONTENTON OF THE LD.AR OF THE ASSESSEE THAT DU E TO NON-PRODUCTION OF BOOKS OF ACCOUNT AND DETAILS, ASSESSEE PRODUCED BY CIT(A) TO SOME EXTENT, BUT SINCE ADDITON IS NOT CALLED FOR AT ALL, THEREFORE, SAME SHOULD BE DELETE D IN ITS ENTIRELY OR FURTHER REDUCTION BE ALLOWED WHEREAS DEPARTMENT CONTENDED THAT SINCE DEF ECTS POINTED OUT WERE NOT RECTIFIED OR REMOVED BY THE ASSESSEE NOR BOOKS OF ACCOUNT AND DETAILS WERE FURNISHED, SO THE ADDITION WAS NOT CALLED FOR WHICH HAS ALREADY BEEN MADE BY THE ASSESSING OFFICER THERE WAS NO OCCASION FOR THE CIT(A) TO RESTRICT SUCH ADD ITON TO SUCH A LESSER EXTENT. THEREFORE, ORDER OF ASSESSING OFFICER SHOULD BE RES TORED OR SUITABLE REDUCTION IN THE REDUCTION IN THE RELIEF GIVEN BY CIT(A) BE MADE.