M/s. Vijay Kumar & Sons (HUF), New Delhi V. ACIT, New Delhi

CO 20/DEL/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8687 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 28-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 27-06-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K SETH
• Assessee Lawyers: TARUN SEEM
• Section: 133(6)

Judgement Text

ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 1 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.6466/DEL/2012 ASSESSMENT YEAR : 2007-08 ACIT, VS VIJAY KUMAR & SONS(HUF), CIRCLE-25(1), 3 RD FLOOR, BU-22(SFS), PITAMPURA, ROOM NO.315-D, NEW DELHI. VIKAS BHAWAN, (PAN: AA DHV8639M) NEW DELHI. C.O.NO.20/DEL/2013 (IN I.T.A.NO.6466/DEL/2012) ASSESSMENT YEAR : 2007-08 VIJAY KUMAR & SONS(HUF), VS ACIT, NEW DELHI . CIRCLE-25(1), 3 RD FLOOR, BU-22(SFS), PITAMPURA, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI TARUN SEEM, SR. DR RESPONDENT BY : SHRI K.K. SETH O R D E R PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER OF COMMISSIONER OF INCOME TAX(A)-XXIV, NEW DELHI FOR A Y 2007-08. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS ALSO FILED CROSS OBJECTION AGAINST THE ABOVE IMPUGNED ORDER IN THIS APPEAL. ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 2 2 2. THE SOLE GROUND RAISED BY THE REVENUE IN THIS AP PEAL READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN :- 1. IN HOLDING THAT THE ADDITION OF RS.18,54 ,000/- MADE BY THE ASSESSING OFFICER IS ON ACCOUNT OF SALE BOOKED WHEREAS THE SAME PERTAINS TO CONTRACTS EXECUTED ON WHICH TD S HAS BEEN DEDUCTED. 3. THE GROUNDS TAKEN BY THE ASSESSEE IN CROSS OBJEC TION READ AS UNDER:- 1) BECAUSE THE DEPARTMENTAL APPEAL IS BAD IN LAW AS ON FACTS AND IS LIABLE TO BE DISMISSED. 2) BECAUSE THE LEARNED ASSESSING AUTHORITY HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAS FULLY DISCHARGED THE INITIAL ONUS REGARDING THE SALES FIGURES AS PER PROFIT & LOSS A/C ,TAX AUDIT REPORT AND DELHI VAT RETURNS FILLED QUARTERLY. 3) BECAUSE THE LEARNED ASSESSING AUTHORITY HAS WRONGLY TAKE THE DIFFERENCE OF SALES FIGURES AND ADVANCE RECEIVED FROM BAHUJAN SAMAJ PARTY IE (RS 65,00,000-RS 46,46,000) RS. 18,54,000/- AS INCOME O F THE ASSESSEE. 4) BECAUSE THE LEARNED CIT (APPEAL)-XXIV NEW DELHI AFTER VERIFYING THE FACTS FROM THE BAHUJAN SAMAJ PARTY HAD DELETED THE ADDITION MADE BY THE ASSESSIN G OFFICER. 4. BRIEFLY STATED, THE FACTS GIVING RISE TO THIS AP PEAL ARE THAT THE ASSESSEE FILED A RETURN ON 29.10.2007 DECLARING NET INCOME O F RS.9,50,961/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AN D STATUTORY NOTICES U/S 143(2) OF THE INCOME TAX ACT 1961 (FOR SHORT THE AC T) WAS ISSUED TO THE ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 3 3 ASSESSEE. ADMITTEDLY, THE ASSESSEE IS CARRYING OUT THE BUSINESS OF CIVIL CONTRACTOR. THE ASSESSING OFFICER REJECTED THE EXP LANATION OF THE ASSESSEE AND OBSERVED THAT THERE WAS NO BASIS FOR SUCH DECLA RATION OF SALE AS IT WAS WITHOUT ANY DOCUMENTARY EVIDENCE OR PROOF SUCH AS C ERTIFICATE OF QUALIFIED CHARTERED ARCHITECT. THE ASSESSING OFFICER ADDED T HE BALANCE AMOUNT OF RS.18,54,000 TO THE INCOME OF THE ASSESSEE. 5. AGGRIEVED, THE ASSESSEE FILED A APPEAL BEFORE TH E COMMISSIONER OF INCOME TAX(A) WHICH WAS ALLOWED BY THE IMPUGNED ORD ER WITH THE FOLLOWING OBSERVATIONS:- 4. THE ABOVE CHART WAS CROSS-CHECKED WITH THE INFORMATION CALLED FOR FROM THE BAHUJAN SAMAJ PARTY U/S. 133(6) OF THE I.T. ACT, 1961 WHO WERE ASKED TO PROVIDE THE DETAILED COPY OF ACCOUNT GIVING INFORMA TION ABOUT YEAR-WISE PAYMENTS ALONG WITH TDS DEDUCTED AND DEPOSITED IN THE GOVERNMENT EX-CHEQUER. THE LEDGER COPY OF ACCOUNT SUBMITTED BY THE BAHUJAN SAM AJ PARTY WITH REFERENCE TO THE APPELLANT EXACTLY MATCH ES THE CHART SUBMITTED BY THE APPELLANT. THUS, IT CAN BE SEEN THAT ALL THE PAYMENTS RECEIVED BY THE APPELLAN T HAVE BEEN DULY DECLARED BY THEM IN THE RETURNS OF INCOME FOR RELEVANT ASSESSMENT YEARS. THE YEAR-WISE BIFURCATION HAS BEEN CARRIED OUT BY THE APPELLANT O N THE BASIS OF THE WORK COMPLETED BY THEM ON YEAR TO YEAR BASIS AND THE SAME HAS BEEN DULY AUDITED BY THE CHARTERED ACCOUNTANT FOR THE CURRENT YEAR UNDER CONSIDERATION. THEREFORE, AFTER CAREFUL CONSIDERATI ON OF ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM O F THE OPINION THAT THE AO MADE THIS ADDITION WITHOUT CROS S- CHECKING THE SAME FROM THE PARTY MAKING THE PAYMENT AND WITHOUT CONSIDERING AS TO WHETHER THERE WAS ANY TAX EVASION AT ALL. IN MY OPINION ALL THE RECEIPTS OF THE ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 4 4 APPELLANT FROM THE WORK CARRIED OUT BY THEM FOR BAHUJAN SAMAJ PARTY HAVE BEEN DULY BROUGHT TO TAX AND THE BIFURCATION OF WORK ACTUALLY CARRIED OUT BY THE APPELLANT AND BOOKED AS SALES DURING THE YEAR SHOUL D BE ACCEPTED ON THE BASIS OF THE AUDIT REPORT OF THE CA. THEREFORE, THE ADDITION OF RS.18,54,000/- DOES NOT APPEAR JUSTIFIABLE AND IS THEREFORE DELETED. 6. NOW, THE REVENUE IS BEFORE THIS TRIBUNAL IN THE SECOND APPEAL WITH THE SOLE GROUND AS MENTIONED HEREINABOVE. 7. WE HAVE HEARD RIVAL ARGUMENTS OF BOTH THE PARTIE S AND CAREFULLY CONSIDERED THE ORDERS OF THE AUTHORITIES BELOW AND OTHER MATERIAL PLACED ON RECORD BEFORE US. LD. DR SUBMITTED THAT WHEN THE A SSESSEE HAS RECEIVED A TDS CERTIFICATE OF RS.1,46,512 ON ACCOUNT OF CONTRA CTUAL PAYMENT OF RS.65,00,000 BY BAHUJAN SAMAJ PARTY, THE ASSESSING OFFICER RIGHTLY ADDED THE DIFFERENCE OF RECEIPT AND AMOUNT OF SALE REFLEC TED IN THE TRADING AND P&L ACCOUNT OF THE ASSESSEE. THE DR SUPPORTED THE ASSE SSMENT ORDER AND SUBMITTED THAT THE IMPUGNED ORDER MAY BE SET ASIDE BY RESTORING THAT OF THE ASSESSING OFFICER. 8. REPLYING TO THE ABOVE, THE AR VEHEMENTLY SUBMITT ED THAT THE COMMISSIONER OF INCOME TAX(A) CALLED INFORMATION FR OM BAHUJAN SAMAJ PARTY BY INVOKING POWERS U/S 133(6) OF THE ACT AND ASKED TO PROVIDE THE DETAILED COPY OF ACCOUNT GIVING INFORMATION ABOUT Y EAR-WISE PAYMENTS, ALONG WITH TDS DEDUCTED AND DEPOSITED IN THE GOVERN MENT EXCHEQUER. THE ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 5 5 AR FURTHER SUBMITTED THAT ON VERIFICATION, THE COMM ISSIONER OF INCOME TAX(A) FOUND THAT THE DETAIL OF SALES REFLECTED IN PROFIT & LOSS ACCOUNT OF THE ASSESSEE WERE MATCHED WITH THE DETAILS RECEIVED IN REPLY TO THE NOTICE U/S 133(6) OF THE ACT, THEREFORE, THE ADDITION WAS DELE TED BY THE COMMISSIONER OF INCOME TAX(A) ON JUSTIFIED GROUNDS AND REASONABL E BASIS. THE AR SUPPORTED THE IMPUGNED ORDER AND CONTENDED THAT THE APPEAL OF THE REVENUE DESERVES TO BE DISMISSED. 9. IN VIEW OF ABOVE, WE OBSERVE THAT THE COMMISSION ER OF INCOME TAX(A) TOOK A RIGHT APPROACH TO VERIFY THE DETAILS SUBMITTED BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND THE COMMISSIO NER OF INCOME TAX(A) FOUND THAT THE DETAILS AND COPIES OF THE ACCOUNTS S UBMITTED BY THE BAHUJAN SAMAJ PARTY WERE EXACTLY MATCHING WITH THE DETAILS SUBMITTED BY THE APPELLANT. THE COMMISSIONER OF INCOME TAX(A) HELD THAT ALL THE PAYMENTS RECEIVED BY THE APPELLANT HAVE BEEN DULY DECLARED I N THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR. THE COMMISSIONER OF INCOME TAX(A) ALSO OBSERVED THAT THE YEAR-WISE BIFURCATION HAD BEEN CA RRIED OUT BY THE ASSESSEE ON THE BASIS OF THE WORK COMPLETED BY THEM ON YEAR TO YEAR BASIS AND THE ACCOUNT OF THE ASSESSEE HAD BEEN DULY AUDITED BY QU ALIFIED CHARTERED ACCOUNTANT FOR THE YEAR UNDER CONSIDERATION. ACCOR DINGLY, WE ARE UNABLE TO SEE ANY INFIRMITY, PERVERSITY OR ANY OTHER VALID RE ASON TO INTERFERE WITH THE ITA NO.6466/DEL/2012 ASSTT.YEAR: 2007-08 6 6 IMPUGNED ORDER AND WE HOLD THAT THE APPEAL OF THE R EVENUE IS DEVOID OF MERITS AND DESERVES TO BE DISMISSED AND WE DISMISS THE SAME. C.O. OF THE ASSESSEE 10. SINCE WE HAVE DISMISSED THE APPEAL OF THE REVEN UE BY FIRST PART OF THIS ORDER, THEREFORE, C.O. RAISED BY THE ASSESSEE BECOM ES INFRUCTUOUS AND WE ALSO DISMISS THE SAME. 11. IN THE RESULT, THE APPEALS OF THE REVENUE AS WE LL AS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH JUNE, 20 13. SD/- SD/- (G.D. AGRAWAL) (CHANDRAMOHAN GARG) VICE PRESIDENT JUDICIAL MEMBER DT. 28TH JUNE 2013 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER ASSTT.REGISTRAR