ITO, New Delhi V. Mr. Satish Kumar, New Delhi

ITA 1475/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7412 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 26-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SURESH K GUPTA

Judgement Text

ITA NO. 1475/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. N O. 1475/DEL/2012 A.Y. : 2008 - 09 ITO, WARD 21(3), ROOM NO. D-3, VIKAS BHAWAN, NEW DELHI VS. MR. SATISH KUMAR, H.NO. 24, VILLAGE- GHOGA, NARELA, DELHI 110 039 (PAN: ATLPK3637P) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. RAKESH KUMAR, SR. DR ASSESSEE BY : SH. SURESH K. GUPTA, CA DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : DATE OF HEARING : 26 2626 26- -- -8 88 8- -- -2014 2014 2014 2014 DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : DATE OF ORDER : 28 2828 28- -- -8 88 8- -- -2014 2014 2014 2014 ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXI I, NEW DELHI DATED 10.1.2012 PERTAINING TO ASSESSMENT YEA R 2008-09. 2. THE GROUNDS RAISED READ AS UNDER:- ITA NO. 1475/DEL/2012 2 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN GIVING OF RS. 7,02,611/- OUT OF TOTAL CLAIMED RELATED EXPENSES OF RS. 70,26,110/- WITHOUT PROVING THE GENUINENESS OF THOSE EXPENSES BY THE ASSESSEE WITH THE SUPPORT OF A/C BOOKS AND VOUCHERS. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS. 65,267/- OUT OF TOTAL ADDITION OF RS. 6,52,573/-, IN SPITE OF THE FACT THAT THE ASSESSEE HIMSELF SURRENDERED THIS INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AL L OR ANY OF THE AFORESAID GROUNDS OF APPEAL AND AMEND, ALTER OR ADD ANY OTHER GROUND OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF OPERATING TRUCKS ON COMM ERCIAL BASIS UNDER THE NAME AND STYLE OF M/S GHAZIABAD PAT NA ROADWAYS. THE ASSSESSEE OWNS 5 TRUCKS DURING THE F .Y. 2007- 08 RELEVANT TO A.Y. 2008-09. IN THE ASSESSMENT ORDE R PASSED BY THE ASSESSING OFFICER, ADDITIONS HAVE BEEN MADE ON ACCOUNT OF DISALLOWANCE OF EXPENSES OUT OF CONVEYANCE, POWER AND FUEL, REPAIR AND MAINTENANCE, SALARY, STAFF, WELFARE, TEL EPHONE ETC. OF RS. 7,16,117/-. THE ASSESSING OFFICER ALSO OBSERVE D THAT THERE IS A MIS-MATCH BETWEEN THE TDS CERTIFICATE FILED BY THE ASSESSEE AND INCOME SHOWN. AS PER ASSESSING OFFICE R, THE ITA NO. 1475/DEL/2012 3 ASSESSEE HAS OFFERED LESS RECEIPTS OF RS. 6,52,573 /-, THEREFORE, THE SAME WERE ADDED AS INCOME TO THE ASSESSEE. 4. AGAINST THE ABOVE, ASSESSEE APPEALED BEFORE THE LD. CIT(A). LD. CIT(A) AFTER ELABORATE CONSIDERATION GA VE THE RELIEF OF RS. 7,02,611/- OUT OF TOTAL EXPENSES OF RS. 70, 26,110/- 2 10% ON ACCOUNT OF DISALLOWANCE OF VARIOUS EXPENSES AND ALSO RESTRICTING THE ADDITION TO RS. 65,267/- ON ACCOUNT OF MIS-MATCH IN TDS CERTIFICATE. 5. AGAINST THE ABOVE ORDER DATED 10.1.2012 OF THE L D. CIT(A), REVENUE APPEALED BEFORE US. 6. LD. DR RELIED UPON THE ORDER OF THE AO. 7. LD. COUNSEL OF THE ASSESSEE RELIED UPON THE ORDE R OF THE CIT(A) AND REQUESTED THAT THE SAME MAY BE UPHELD. WITH REGARD GROUND NO. 1, LD. COUNSEL OF THE ASSESSEE SU BMITTED THAT THE RELIEF ON SIMILAR GROUND WAS ALSO GIVEN BY THE LD. CIT(A) IN CASE OF SH. DEVENDER KUMAR, BROTHER OF TH E ASSESSEE AND THE SAME WAS UPHELD BY THE ITAT VIDE ITA NO. 469/DEL/2012 (A.Y. 2008-09) 21.6.2013 IN LOSS OF OR IGINAL BILLS WAS ACCEPTED TO BE ON ACCOUNT OF THE SAME BEING STO LEN PROVED ON THE BASIS OF THE SAME FIR. 7.1 WITH REGARD TO GROUND NO. 2, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SIMILAR STAND WAS TAKEN BY THE ASSES SEES BROTHER SH. DEVENDRA KUMAR AND THE RELIEF WAS GRANT ED BY THE CIT(A) WAS NOT CONTESTED BY THE REVENUE IN THE APPE AL BEFORE THE ITAT. HENCE, THE FINDING OF THE LD. CIT(A) ON THIS ISSUE ATTAINS FINALITY. ITA NO. 1475/DEL/2012 4 8. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT WITH REGARD TO GROUND NO. 1 R ELATING TO DISALLOWANCES OF VARIOUS EXPENSES RS. 7,02,611/- OU T THE TOTAL EXPENSES OF RS. 70,26,110/- @ 10%, THE SAID ISSUE I S SQUARELY COVERED BY THE ITAT, DELHI BENCH IN ITAT NO. ITA NO . 469/DEL/2012 (A.Y. 2008-09) DATED 21.6.2013 IN ASS ESSEES BROTHER CASE WHEREIN ORDER OF THE CIT(A) WAS UPHEL D. THEREFORE, WE DO FIND ANY INFIRMITY IN THE ORDER O F THE LD. CIT(A), HENCE, WE AFFIRM THE SAME. 9. WE FIND THAT WITH REGARD TO GROUND NO. 2 RELATIN G TO CHALLENGE TO THE RELIEF GRANTED BY THE CIT(A) OF R S. 5,87,306/- ON ACCOUNT OF DIFFERENCE IN TDS AS PER 26AS AND THE TDS CLAIMED AS PER THE RETURN OF INCOME IS CONCERNED, W E FIND THAT LD. CIT(A)S HAS ADOPTED THE CONSISTENT VIEW IN T HE CASE OF THE CASE OF THE ASSEESSEES BROTHER DEVENDER KUMAR CASE IN ITA NO. 469/DEL/2012 (A.Y. 2008-09) DATED 21.6.2013. W E FIND THAT LD. CIT(A) WAS CORRECT IN OBSERVING THAT ENTIRE REC EIPTS WHICH WAS PERTAINING TO EXCESS TDS CREDIT OF RS. 13443/- IN AS26 ACCOUNT OF THE ASSESSEE CANNOT BE TREATED AS ASSESS EES INCOME. IN THIS LINE OF BUSINESS, THE MARGIN OF P ROFIT RANGES FROM 8% TO 10% OF THE RECEIPTS. CONSIDERING THE SAM E THE 10% OF THE ADDITIONAL FREIGHT RECEIPT OF RS. 6,52,573/- IS TAKEN AS ADDITIONAL INCOME WHICH TO RS. 65,257/-. WE FIND T HAT LD. CIT(A)S HAS RIGHTLY DIRECTED THE AO TO TAX ONLY RS . 65,257/- ADDITIONAL INCOME FROM THE AMOUNT OF FREIGHT PERTAI NING TO THE EXCESS TDS CREDITED IN THE ACCOUNT OF THE ASSESSEE AND ACCORDINGLY, GRANTED THE RELIEF OF RS. 5,87,316/-. IN OUR VIEW THE ITA NO. 1475/DEL/2012 5 DECISION OF THE LD. CIT(A) ON THIS ISSUE DOES NOT N EED ANY INTERFERENCE ON OUR PART, HENCE, THE SAME IS UPHELD . 10. IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENT, WE UPHELD THE ORDER OF THE LD. CIT(A) ON BOTH THE ISSUES AND DECIDE THE APPEAL AGAINST THE REVENUE. 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/8/2014. SD/- SD/- [ [[ [S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA S.V. MEHROTRA] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 28/8/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 1475/DEL/2012 6