ITO, New Delhi V. Sh. Saurav Chatterjee, New Delhi

ITA 1723/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3504 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 05-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D M SINHA
• Assessee Lawyers: AMRIT KUMAR
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH.L.P.SAHU, ACCOUNTANT MEMBER I.T.A .NO.-1723 & 1724/DEL/2013 (ASSESSMENT YEAR-2008-09) ITO, WARD-48(4), NEW DELHI. ( APPELLANT) VS SAURAV CHATTERJEE, PRIMENT GLOBAL LTD., 252/2, BUSINESS PARK, SHIVAJI MARG, NEW DELHI-110015. PAN-ADZPC6922D (RESPONDENT) ASSESSEE BY SH.AMRIT KUMAR, SR.DR REVENUE BY SH.D.M.SINHA, ADV. DATE OF HEARING 05.04.2017 DATE OF PRONOUNCEMENT 19.04.2017 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER BOTH THE APPEALS BY THE REVENUE ARE DIRECTED AGAINS T THE COMMON ORDER OF CIT(A)-XXX, NEW DELHI DATED 23.01.2013 FOR A.Y. 2008-09. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE AO PA SSED THE EX-PARTE ASSESSMENT ORDER U/S 144 OF THE I.T.ACT, 1961 (IN S HORT ACT). THE AO NOTED THAT AS PER AIR INFORMATION RECEIVED THE ASS ESSEE HAS MADE PAYMENTS THROUGH VARIOUS BANKS CREDIT CARDS AMOUNTI NG TO RS.67,90,2444/-. THE ASSESSEE COULD NOT EXPLAIN TH E SOURCE OF THESE AMOUNTS AND ALSO FAILED TO FURNISH SUPPORTING EVIDE NCES. THEREFORE, THE SAME AMOUNT REMAINED UNEXPLAINED AND TREATED AS UNDISCLOSED PAGE 2 OF 5 INCOME OF THE ASSESSEE. THE AO MADE ADDITION OF RS .67,90,244/- AS WELL AS LEVIED THE PENALTY ON THIS ADDITION VIDE SE PARATE ORDER. 3. THE ASSESSEE CHALLENGED THE ABOVE ADDITION AS WE LL AS PENALTY ORDER BEFORE THE LD. CIT(A). THE ASSESSEE PRODUCED NECESSARY EVIDENCES DURING THE COURSE OF HEARING. IT WAS EXP LAINED THAT DURING THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSEE WAS WORKING AS A MARKETING MANAGER IN THE COMPANY SSIPL RETAIL PVT.L TD. HE HAD BEEN GIVEN CREDIT CARDS BY THE EMPLOYER COMPANY WITH SIX BANKS AND HE HAD USED THE MONEY BY DRAWING FROM CREDIT CARDS IN HIS OFFICIAL WORKS. THE DETAILS WERE SUBMITTED OF ALL THESE BANKS AND AS PE R LETTER OF THE EMPLOYER NO.553 DATED 14.10.2009 WHICH IS REPRODUCE D IN THE IMPUGNED ORDER, THE EMPLOYER HAS CERTIFIED WITH THE ASSESSEE WAS WORKING WITH THEIR ORGANIZATION UPTO 31.03.2008. H E WAS PAID SALARY FROM 01.08.2007, 31.03.2008 AT RS.2,15,570/-. THE COMPANY HAS PROVIDED ATM CARDS OF ICICI BANK, CITI BANK, HDFC B ANK, AMERICAN EXPRESS BANK, HSBC BANK AND ABN AMRO BANK. IT WAS ALSO CERTIFIED THAT IN THE ABOVE SAID BANKS, ALL MONEY I.E. RS.67, 90,244/- HAVE BEEN DEPOSITED BY THE COMPANY. THE ASSESSEE ALSO FILED HIS AFFIDAVIT AFFIRMING THEREIN THAT CERTIFICATE ISSUED BY THE CO MPANY WAS FILED DURING THE ASSESSMENT PROCEEDINGS. THE LD.CIT(A), THEREFORE, NOTED THAT THE ASSESSEES EMPLOYER HAD CLAIMED THE ABOVE EXPENSES IN ITS COMPANY ASSESSMENT WITH DCIT, CIRCLE-4(1), DELHI AN D THAT PAGE 3 OF 5 EXPENDITURE HAD BEEN REIMBURSED BY THE COMPANY IN THE CREDIT CARDS AND ATM CARDS OF THE BANKS. THE EMPLOYER HAD CLAIM ED THIS EXPENDITURE IN THE P&L A/C AND ALLOWED BY THE AO OF THE EMPLOYER COMPANY. THE LD.CIT(A) NOTED THAT THE AO DID NOT F ILE THE REMAND REPORT NOR DID MAKE ANY INQUIRY AND ACCORDINGLY AD DITION WAS DELETED. THE LD.CIT(A) IN VIEW OF THE DELETION OF ADDITION ON QUANTUM ALSO CANCEL THE PENALTY. BOTH APPEALS OF THE ASSES SEE WERE ACCORDINGLY ALLOWED. 4. LD.DR CONTENDED THAT WHATEVER DOCUMENTS WERE FIL ED BEFORE THE LD.CIT(A) WERE NOT FILED BEFORE THE AO AND THUS RUL E 46A OF I.T.RULES HAVE BEEN VIOLATED. THE LD.CIT(A) DID NOT CONSIDER THE REMAND REPORT. 5. ON THE OTHER HAND, THE COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD.CIT(A) AND SUBMITTED THAT THE ASSESSEE FILED WRITTEN SUBMISSIONS SUPPORTED BY ALL THE ABOVE EVIDENCES I.E. CERTIFICATE OF THE EMPLOYER AND AFFI DAVITS WHICH WERE FORWARDED TO THE AO FOR FILING THE REMAND REPORT. THE REMAND REPORT OF THE AO DATED 08.08.2012 IS PLACED ON RECORD IN W HICH THE AO REITERATED THE SAME FACT STATED IN THE ASSESSMENT O RDER, THEREFORE, NO RULE 46A HAVE BEEN VIOLATED. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DO N OT FIND ANY MERIT IN BOTH THE APPEALS OF THE REVENUE. THE ASSESSEE F ILED COPIES OF HIS PAGE 4 OF 5 AFFIDAVIT WHICH WERE NOT FILED BEFORE THE LD.CIT(A) IN WHICH HE HAS AFFIRMED THAT NO NOTICE HAS BEEN SERVED AT HIS RESI DENCE. THE ASSESSEE ALSO PLACED ON RECORD OF THE CIT(A), CERTIFICATE OF THE EMPLOYER CONFIRMING THAT THE AMOUNT OF RS.67,90,244/- WAS SP ENT BY THE ASSESSEE ON BEHALF OF THE COMPANY. THE LD.CIT(A) A LSO NOTED THAT THESE EXPENSES HAVE BEEN CLAIMED AS EXPENSES BY THE COMPANY OF THE ASSESSEE AND THE AO HAS ALLOWED DEDUCTION OF THE SA ME. IT IS, THEREFORE, CLEAR THAT ALL THE CREDIT CARDS AND ATM HAVE BEEN USED ON BEHALF OF THE EMPLOYER COMPANY AND NOTHING HAVE BEE N SPENT BY THE ASSESSEE PERSONALLY. ALL THE SUBMISSIONS AND EVIDE NCES FILED BEFORE THE LD.CIT(A), WERE SENT TO THE AO FOR FILING REMAND RE PORT, THE AO DID NOT REBUT THE CONTENTION OF THE ASSESSEE IN ANY MANNER. COPY OF THE REMAND REPORT DATED 08.08.2012 IS FILED ON RECORD. HONBLE P&H HIGH COURT IN THE CASE OF KULDEEP INDUSTRIAL CORPORATION 209 CTR 400 HELD THAT WHEN THE AO WAS PRESENT BEFORE THE LD.CIT(A), DID NOT RAISE ANY OBJECTION, RULE 46A NOT VIOLATED. IN THIS CASE, T HE ASSESSEE CLAIMED THAT NO NOTICE HAS BEEN SERVED UPON HIM AT THE ASSE SSMENT STAGE AND WHEN DETAILS WERE SUBMITTED BEFORE THE LD.CIT(A), T HE SAME HAVE NOT BEEN REBUTTED BY THE AO. SINCE THE ADDITIONAL EVID ENCES FILED BEFORE THE LD.CIT(A) WERE RELEVANT AND GOES TO THE ROUTE O F THE MATTER AND NO SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE AT ASSESSMENT STAGE TO PRODUCE THIS ADDITIONAL EVIDENCE, THE LD.CIT(A) WAS JUSTIFIED IN PAGE 5 OF 5 CONSIDERING THE SAME IN ACCORDANCE WITH LAW. THUS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) IN CONS IDERING THE ADDITIONAL EVIDENCES FOR THE PURPOSES OF DELETING THE ADDITION . SINCE THE ADDITIONS ON QUANTUM HAVE BEEN DELETED, THEREFORE, THERE IS N O BASIS TO LEVY THE PENALTY ON THE SAME ADDITION. THE LD.CIT(A) RIGHTL Y ALLOWED BOTH THE APPEALS OF THE REVENUE. 7. IN THE RESULT, THERE IS NO MERIT IN BOTH APPEALS AND BOTH APPEALS ARE DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P.SAHU) (B HAVNESH SAINI) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATE:-19 TH APRIL, 2017 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGIS TRAR ITAT NEW DELHI