Late Sh. Satish Chand Jain, New Delhi V. ITO, New Delhi

ITA 120/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96931 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 13-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEVI SHARAN SINGH
• Assessee Lawyers: G S KOHLI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH SMC SMC SMC SMC : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA BEFORE SHRI G.C. GUPTA, VICE , VICE , VICE , VICE PRESIDENT PRESIDENT PRESIDENT PRESIDENT ITA NO ITA NO ITA NO ITA NO . .. . 120/DEL/2014 120/DEL/2014 120/DEL/2014 120/DEL/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009 - -- - 10 1010 10 LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, THROUGH LEGAL HEIR THROUGH LEGAL HEIR THROUGH LEGAL HEIR THROUGH LEGAL HEIR SMT. SHAKUNTALA JAIN, SMT. SHAKUNTALA JAIN, SMT. SHAKUNTALA JAIN, SMT. SHAKUNTALA JAIN, 2931/43, BEODON PURA, 2931/43, BEODON PURA, 2931/43, BEODON PURA, 2931/43, BEODON PURA, KAR KAR KAR KAROL BAGH, OL BAGH, OL BAGH, OL BAGH, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 005. 110 005. 110 005. 110 005. PAN : AEGPJ3992E. PAN : AEGPJ3992E. PAN : AEGPJ3992E. PAN : AEGPJ3992E. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -33(2), 33(2), 33(2), 33(2), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.S. KOHLI, CA. RESPONDENT BY : SHRI DEVI SHARAN SINGH, SR.DR. DATE OF HEARING : 13.07.2015 13.07.2015 13.07.2015 13.07.2015 DATE OF PRONOUNCEMENT : 03.08.2015 03.08.2015 03.08.2015 03.08.2015 ORDER ORDER ORDER ORDER THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-1 0 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-XXVI, N EW DELHI DATED 9 TH OCTOBER, 2013. 2. THE GROUNDS OF APPEAL NO.1 & 2 OF THE ASSESSEES APPE AL ARE AS UNDER:- 1. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEAL) WAS NOT JUSTIFIED IN SUSTAI NING AN ADDITION OF RS.8,38,357/- OUT OF RS.11,62,445/- WH ICH TOO WRONGLY ADDED BY THE LEARNED A.O. 2. THE LEARNED CIT(APPEAL) HAD FAILED TO APPRECIATE THE FULL FACTS PLACED BEFORE HIM IN RESPECT OF AN ADDITI ON OF RS.11,62,445/- MADE BY THE LEARNED A.O. ITA-120/DEL/2014 2 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E ASSESSEE HAS GIVEN EXPLANATION FOR THE CASH DEPOSITED IN I TS BANK ACCOUNT AMOUNTING TO `20,33,500/- AND THE ASSESSING OFF ICER MADE AN ADDITION OF `11,62,445/-, WHICH WAS REDUCED TO `7,03 ,867/- BY THE LEARNED CIT(A). HE SUBMITTED THAT THERE IS A CALCULA TION MISTAKE AND THE GROSS PROFIT TO BE CONSIDERED SHOULD HAVE BEEN ON THE SALES FIGURE AND NOT ON PURCHASES. HE HAS REFERRED TO PAGE 9 OF T HE COMPILATION FILED BY THE ASSESSEE WHICH SHOWS THAT THE SHORTAGE OF GO ODS FOR THE PURPOSE OF SALE THEREOF FOR DEPOSITING THE CASH IN THE BANK ACCOUNT OF THE ASSESSEE COMES TO `5,68,874/- AND NOT `7,03,867/- A S DETERMINED BY THE LEARNED CIT(A). HE REFERRED TO PAGE 14 OF T HE COMPILATION WHEREIN M/S HURA ENTERPRISES HAS GIVEN A CERTIFICATE O F SALE TRANSACTIONS ALONG WITH CHALLAN DETAILS AND BILLS ISSUED DURING THE RELEVANT PERIOD REGARDING THE GOODS SUPPLIED TO THE ASSESSEE AND THE CREDIT THEREOF WAS NOT ALLOWED BY THE REVENUE WHILE MAKING THE IMPUGNED ADDITION. 4. LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE LEARNED CIT(A) HAS TAKEN A REASONABLE VIEW AND HAS RESTRICTED THE ADDITION TO A R EASONABLE FIGURE AND HAS PASSED A SPEAKING ORDER ON THE ISSUE. HE RELIED ON THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A). 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE PERU SED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A) A ND ALSO THE CHART OF SHORTAGE OF GOODS FILED BY THE ASSESSEE AT PAGE 9 AND THE CERTIFICATE OF M/S HURA ENTERPRISES DATED 19 TH SEPTEMBER, 2013, COPY AT PAGE 14 OF THE COMPILATION FILED BEFORE THE TRIBUNAL. I FI ND THAT NO MISTAKE IN THE CHART OF SHORTAGE OF GOODS WITH THE ASSESSEE AT `5,6 8,874/- COULD ITA-120/DEL/2014 3 BE POINTED OUT BY THE REVENUE. THE DEPARTMENT SHOU LD HAVE ALLOWED SOME CREDIT FOR THE TRANSACTIONS CONFIRMED BY M/S HUR A ENTERPRISES, NEW DELHI TO THE ASSESSEE CONCERN WHEREIN IT WAS CERTIFI ED THAT THEY USED TO DELIVER THE GOODS ON CHALLAN BASIS AND USED TO I SSUE THE BILLS IN A LATER TIME RESULTING IN A TIME GAP BETWEEN THE DEL IVERY OF GOODS AND ISSUING OF INVOICE. ACCORDINGLY, THE ADDITION MADE O N ACCOUNT OF SHORTAGE OF GOODS AVAILABLE FOR SALE WITH THE ASSESSEE DU RING THE RELEVANT PERIOD IS RESTRICTED TO `4,00,000/- (IN ROUN D FIGURES) AS AGAINST `7,03,867/- SUSTAINED BY THE LEARNED CIT(A), AFTER AL LOWING CREDIT FOR THE CERTIFICATE ISSUED BY M/S HURA ENTERPRISES OUT OF TH E SHORTAGE OF GOODS AT `5,68,874/- AS PER THE CHART FILED BY THE A SSESSEE. ACCORDINGLY, GROUND NOS.1 & 2 OF THE ASSESSEES APPEAL AR E PARTLY ALLOWED. 6. GROUND NO.3 OF THE ASSESSEES APPEAL IS AS UNDER:- 3. THAT WITHOUT PREJUDICE TO ABOVE THE SUSTAINED ADDITION OF RS.8,38,357/- INCLUDES AN AMOUNT OF RS.1,34,490/- RELATED TO CARTAGE, ETC. THE INTERPRET ATION GIVEN BY THE LEARNED CIT(APPEAL) WAS NOT JUSTIFIED. 7. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CI T(A) HAS MADE AN ENHANCEMENT OF INCOME BY `1,34,490/- FOR WH ICH NO OPPORTUNITY WAS GIVEN BY THE CIT(A) BEFORE MAKING TH E SAID ENHANCEMENT. 8. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESSING O FFICER AND THE LEARNED CIT(A). 9. I HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). I FIND THAT THERE IS NO WHISPER EVEN IN THE APPELLATE ORDER PASSED BY THE LEARNED CIT(A) REGARDING ANY OPPORTUNIT Y BEING GIVEN TO ITA-120/DEL/2014 4 THE ASSESSEE FOR ENHANCING THE ASSESSED INCOME OF THE ASSESSEE. ACCORDINGLY, THE ENHANCEMENT OF INCOME MADE AT `1,3 4,490/- IS NOT IN ACCORDANCE WITH LAW AND IS DELETED. GROUND NO.3 OF THE ASSESSEES APPEAL IS ALLOWED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 3 RD AUGUST, 2015. SD/- (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, LATE SHRI SATISH CHAND JAIN, THROUGH LEGAL HEIR SMT. SHAKUNTALA JAIN, THROUGH LEGAL HEIR SMT. SHAKUNTALA JAIN, THROUGH LEGAL HEIR SMT. SHAKUNTALA JAIN, THROUGH LEGAL HEIR SMT. SHAKUNTALA JAIN, 2931/43, BEODON PURA, KAROL BAGH, 2931/43, BEODON PURA, KAROL BAGH, 2931/43, BEODON PURA, KAROL BAGH, 2931/43, BEODON PURA, KAROL BAGH, NEW DELH NEW DELH NEW DELH NEW DELHI I I I 110 005. 110 005. 110 005. 110 005. 2. RESPONDENT : INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -33(2), NEW DELHI. 33(2), NEW DELHI. 33(2), NEW DELHI. 33(2), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR