ACIT, New Delhi V. Shri Gautam Gupta, New Delhi

ITA 1353/DEL/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7226 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-06-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 20-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rule of consistency; Additional evidence; Corroborative evidences; Assessment record
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C, NEW DELHI BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO.1353/DEL/2012 (ASSESSMENT YEAR 2004-05) ACIT, CIRCLE 25(1), VS. SHRI GAUTAM GUPTA, NEW DELHI A-7, LIC COLONY, PASCHIM VIHAR, NEW DELHI GIR / PAN : AAHPG5672P (APPELLANT) (RESPONDENT) APPELLANT BY :MR. SANJAY KUMAR YADAV, SR. DR RESPONDENT BY : NONE DATE OF HEARING: 15.06.2016 DATE OF PRONOUNCEMENT: 27.06.2016 ORDER PER BEENA A. PILLAI, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 22.12.2011 PASSED BY LD. CI T(A)- XXXI, NEW DELHI, FOR THE ASSESSMENT YEAR 2004-05, O N THE FOLLOWING GROUNDS OF APPEAL: (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) ERRED IN DELETING THE ADDITION OF RS.31,11,7 90/- MADE BY THE A.O. ON ACCOUNT OF HIRE CHARGES. (II) SET ASIDE OF THE ORDER OF THE CIOT(A) AND REST ORE THE MATTER BACK TO THE A.O. TO RE-EXAMINE FRESH EVIDENCES IN A HOLISTIC MANNER. 2. THE BRIEF FACTS OF THE PRESENT CASE ARE AS UNDER : 2 I.T.A.NO.1046/DEL/2016 2.1 THE ASSESSEE FILED ITS RETURN OF INCOME DECLARI NG TOTAL INCOME OF RS.9,48,340/- ON 01.11.2004. THE CASE WA S SELECTED FOR SCRUTINY AND NOTICES U/S 1433(2) AND 1 42(1) OF THE ACT WERE SERVED UPON THE ASSESSEE. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, LD. A.O. OBSERVED THAT THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS.1,87,89,87 0/- UNDER THE HEAD HIRE CHARGES. ON CALLING FOR THE DETAILS IN RESPECT OF THE SAID CLAIM AND PURSUANCE OF THE DOCU MENTS SUBMITTED BY THE ASSESSEE, LD. A.O. OBSERVED THAT T HE ASSESSEE HAS CLAIMED SUNDRY AND MISCELLANEOUS EXPEN SES TO THE TUNE OF RS.31,121,790/-. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE SUBMITTED THAT THESE WERE PETTY AMOUNTS PAID TO TRANSPORTERS, HOWEVER, H E HAD FAILED TO PRODUCE ANY DOCUMENTARY EVIDENCE LIKE BIL LS / VOUCHERS IN RESPECT OF THE EXPENDITURE INCURRED UND ER THIS HEAD. LD. A.O. ACCORDINGLY, MADE AN ADDITION FOR W ANT OF PROPER EXPLANATION / BILLS / VOUCHERS TO AN EXTENT OF RS.31,11,790/-. 2.2 AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSE E PREFERRED AN APPEAL BEFORE LD. CIT(A). BEFORE LD. CIT(A), THE ASSESSEE SUBMITTED APPLICATION UNDER RULE 46 WI TH A REQUEST TO ADMIT CERTAIN FRESH EVIDENCES. LD. CIT( A) REMANDED THE DOCUMENTS TO THE LD. A.O. FOR VERIFICA TION AND COMMENTS. LD. A.O., COMMENTED AS UNDER: DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSING OFFICER NOTED THAT APPELLANT HAS CLAIMED AN AMOUNT OF RS.1,87,89,870/- UNDER THE HEAD 'HIRE CHARGES'. BUT APPELLANT COULD NOT SUBMIT ANY DETAILS/BILLS/VOUCHERS IN RESPECT OF HIRE CHARGES AMOUNTING TO RS. 31,11,790/-. WHEN APPELLANT WAS ASKED TO JUSTIFY THE CLAIM, APPELLANT REPLIED THAT THESE 3 I.T.A.NO.1046/DEL/2016 WERE PETTY AMOUNTS PAID TO TRANSPORTERS HOWEVER, HE FAILED TO FURNISH ANY EVIDENCE W.R.T THE EXPENDITUR E INCURRED UNDER THIS HEAD. CONSEQUENTLY, ASSESSING OFFICER ADDED BACK THIS AMOUNT TO THE INCOME OF THE APPELLANT. DURING THE COURSE OF APPELLATE PROCEEDINGS, APPELLA NT HAS STATED THAT ENOUGH OPPORTUNITIES WERE NOT GRANTED TO THE APPELLANT. BUT AFTER GOING THROUGH T HE ASSESSMENT RECORD OF THE APPELLANT, IT WAS GATHERED THAT ON THE FOLLOWING DATES A.R. OF THE APPELLANT, MR. ASHOK CHAWLA ATTENDED THE ASSESSMENT PROCEEDINGS:- 25-05-2006, 17-08-2006, 30-05,2006, 15-11-2006, 05-06-2006, 29-01-2006, 17-07-2006. IT SHOWS THAT THE APPELLANT WAS GRANTED SEVERAL OPPORTUNITIES TO FURNISH DETAILS TO THE ASSESSING OFFICER BUT HE INTENTIONALLY AVOIDED TO DO SO. NOW AT THE TIME OF APPELLATE PROCEEDINGS, APPELLANT HAS ONLY GIVEN BIFURCATION FOR THE AMOUNT OF RS. 31,11,790/- IN RESPECT OF HIRE CHARGES TO DIFFERENT PERSONS. BUT EVEN NOW NO DOCUMENTARY EVIDENCE I.E. BILL/ VOUCHERS HAVE BEEN SUBMITTED BY THE APPELLANT WITH REGARD TO THE AMOUNT OF RS. 31,11,790/- SPENT FOR HIRE CHARGES. BILLS AND VOUCHERS ARE SOUGHT TO BE PRODUCED, VERIFIED AND EXAMINED FOR GENUINENESS, ONLY THEN THE CLAIM OF THE APPELLANT MAY BE CONSIDERED. IN VIEW OF THE FACTS AND CIRCUMSTANCES STATED ABOVE AND FRESH PAPERS SUBMITTED BY THE APPELLANT, IT HAS BECOME CRYSTAL CLEAR THAT APPELLANT WILLINGLY IGNOR ED TO SUBMIT ANY CONCRETE DOCUMENT AND ANY EVIDENCE IN SUPPORT OF THE CLAIM FOR HIRE CHARGES AMOUNT TO RS. 31,11,790/-, THEREFORE, YOU ARE REQUESTED TO PLEASE CONFIRM THIS ADDITION. REFERENCE TO THE CONTENTS OF THE RULE 46A, SHOW THA T PRODUCTION OF ADDITIONAL EVIDENCE IS CONDITIONED BY CERTAIN SITUATIONS. THE APPELLANT HAS TO SHOW THAT THE ASSESSING OFFICER HAS REFUSED TO ADMIT THE EVIDENCE . THE APPELLANT ALSO HAS TO SHOW ALTERNATIVELY THAT H E 4 I.T.A.NO.1046/DEL/2016 WAS PREVENTED BY SUFFICIENT CAUSE FROM PROCEEDINGS THE EVIDENCE BEFORE THE ASSESSING OFFICER. ALTERNATIVELY FURTHER THE APPELLANT ALSO HAS TO SHO W ITS RELEVANCE TO THE GROUNDS OF APPEAL SOUGHT TO BE URG ED. LASTLY, THE APPELLANT ALSO HAS TO ESTABLISH THAT TH E AO DID NOT AFFORD HIM SUFFICIENT OPPORTUNITY IN REGARD THERETO. THE MATERIAL ON RECORD IS ABUNDANTLY CLEAR THAT NO ATTEMPT WAS MADE BY THE APPELLANT TO PRODUCE THE EVIDENCE BEFORE THE AO. AS NO REASONS HAVE BEEN PROVIDED BY THE APPELLANT FOR NOT PRODUCING THE EVIDENCE BEFORE THE LOWER AUTHORITIES, THE APPLICAT ION FOR ADMISSION OF ADDITIONAL EVIDENCE DESERVES TO BE REJECTED. IF 'ADMITTED, THE PROVISIONS OF RULE 46A HAVE TO BE FOLLOWED. AS NOTED ABOVE, THE FACTS OF THIS C ASE FAIL TO FULFILL THE REQUIREMENTS OF RULE 46A. WITH REGARD TO MERITS OF THE ADDITIONAL EVIDENCE, T HE APPELLANT HAS ONLY FILED A STATEMENT OF FACTS NO SUPPORTING EVIDENCE HAS BEEN PLACED ON RECORD. IT I S PRAYED THAT THE CLAIMS OF THE APPELLANT CASE NEED T O BE THOROUGHLY INVESTIGATED. IF ADDITIONAL EVIDENCE IS ADMITTED IN THE MATTER, THE CASE MAY BE RESTORED BA CK TO THE AO FOR PASSING ASSESSMENT AFRESH. IT IS ALSO CONTENDED THAT IF THE APPELLANT WAS IN POSSESSION OF ALL THE REQUISITE DOCUMENTS PERTAININ G TO HIS ASSESSMENT FOR ASSTT. YEAR '2006-07, THEN WHY D ID NOT PRODUCE THE SAME DURING ASSESSMENT PROCEEDINGS BEFORE THE AO, DESPITE BEING GIVEN INNUMERABLE OPPORTUNITIES. THIS RESULTED IN EX PARTE ORDER U/S 144 OF THE IT ACT. IN THE GROUNDS OF APPEAL SUBMITTED BEFORE YOU, HE HAS SUBMITTED THAT HE WAS NOT PROVIDED ENOUGH OPPORTUNITY FOR COMPLETING THE ASSESSMENT PROCEEDINGS BUT AFTER GOING THROUGH THE ABOVE SAID FACTS, IT IS APPARENT THAT HE INTENTIONA LLY IGNORED THE SCRUTINY ASSESSMENT PROCEEDINGS. IN LIGHT OF THE OBJECTIONS RAISED AND OBSERVATIONS MADE IN AND CASE LAW CITED ABOVE, YOU ARE REQUESTED TO REJECT THE APPLICATION OF THE APPELLANT FOR PROD UCTION OF ANY ADDITIONAL EVIDENCE. 5 I.T.A.NO.1046/DEL/2016 2.3 ON PERUSAL OF THE REMAND REPORT, LD. CIT(A) DEC IDED AS UNDER: THE APPELLANT HAD FILED JUSTIFICATION FOR THE EXPE NSES INCURRED UNDER THE HEAD HIRE CHARGES. THE NECESSARY DETAILS WERE PRODUCED ALONG WITH BOOKS OF ACCOUNTS DURING ASSESSMENT PROCEEDINGS. THE AO HAS DISALLOWED A SUM OF RS.31, 11,790/- ON DOUBTS AND SUSPICION. HE HAS NOT CONFRONTED THE ASSESSEE WITH ANY OBJECTION WITH RESPECT TO THE JUSTIFICATION OR THE AUDITED BOOKS OF ACCOUNTS. IN FACT, BOOKS OF ACCOUN TS THAT INCLUDES CASH BOOK, LEDGER, VOUCHERS, ETC., HA VE BEEN ACCEPTED BY THE ASSESSING OFFICER. MOREOVER, WHEN THE MATTER WAS REFERRED TO THE AO FOR REMAND REPORT, THE AO HAS NOT VERIFIED THE DETAILS AND CONFIRMATIONS BY CALLING THE APPELLANT. IN THE INTE REST OF JUSTICE, IT WAS INCUMBENT UPON AO TO HAVE VERIFI ED THE DETAILS OF THE APPELLANT AND COMMENTED ON ITS MERIT. HE REMAINED SILENT ON THIS ISSUE IN HIS REMA ND REPORT. EVEN IN THE PRECEDING ASSESSMENT YEAR, SIMILAR ADDITION HAS BEEN DELETED BY MY PREDECESSOR IN FACT S AND CIRCUMSTANCES OF THE CASE, I INFER THAT THE APPELLANT'S CLAIM FOR HIRE CHARGES ARE TO BE ALLOWE D. THIS GROUND OF APPEAL IS ALLOWED. 3. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE FI LED APPEAL BEFORE THE TRIBUNAL. THIS TRIBUNAL VIDE ORD ER DATED 17 TH OCTOBER, 2014, DISMISSED THE REVENUES APPEAL. TH E REVENUE PREFERRED MISCELLANEOUS APPLICATION (M.A.) BEFORE THIS TRIBUNAL WHEREIN IT RELIED UPON THE ORDER OF T HIS TRIBUNAL FOR THE ASSESSMENT YEAR 2003-04 WHICH WAS SET ASIDE TO THE FILE OF A.O. FOR RE-EXAMINATION OF THE ISSUE OF HIRE CHARGES AND TO PASS FRESH ASSESSMENT ORDER A FTER AFFORDING REASONABLE OPPORTUNITY TO THE ASSESSEE. T HE 6 I.T.A.NO.1046/DEL/2016 APPEAL WAS ACCORDINGLY RESTORED BACK TO THE ASSESSI NG OFFICER. 4. WE HAVE PERUSED THE ASSESSMENT RECORD, ORDERS PASSED BY THE AUTHORITIES BELOW AND THE ORDER PASSE D BY COORDINATE BENCH OF THIS TRIBUNAL FOR THE YEAR UNDE R CONSIDERATION. IT IS OBSERVED FROM THE REMAND REPO RT REPRODUCED BY LD. CIT(A) IN HIS ORDER THAT THE ASSE SSING OFFICER HAS NOT BEEN ABLE TO VERIFY THE EXPENSES AS THE ASSESSEE HAD NOT PRODUCED ANY DOCUMENTS LIKE BILLS / VOUCHERS. AS THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2003- 04 HAS SET ASIDE THE ISSUE RELATING TO THE HIRE CH ARGES TO THE LD. ASSESSING OFFICER FOR VERIFICATION. FOLLOW ING THE RULE OF CONSISTENCY, WE DIRECT THE A.O. TO VERIFY T HE ISSUE AFRESH BY GIVING PROPER OPPORTUNITY OF BEING HEAD T O THE ASSESSEE. IT IS ALSO DIRECTED THAT HE ASSESSEE MAY SUBMIT ALL NECESSARY DETAILS THAT WILL BE REQUIRED BY THE ASSESSING OFFICER FOR DUE AND PROPER VERIFICATION OF THE EXPE NSES CLAIMED. LD. ASSESSING OFFICER MAY CONSIDER THE CL AIM N THE BASIS OF DOCUMENTS FILED BY THE ASSESSEE. 5. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE STA NDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JUNE, 2016. SD./- SD./- (S. V. MEHROTRA) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 27.06.2016 SP. 7 I.T.A.NO.1046/DEL/2016 COPY FORWARDED TO:- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A)-, NEW DELHI. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 17/6 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 27/6 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 27/6 SR. PS/PS 7 FILE SENT TO BENCH CLERK 27/6 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER