ITO, New Delhi V. M/s. Aryan Life Style Pvt. Ltd., New Delhi

ITA 1883/DEL/2012

• Counselvise Citation: 188320114 RSA 2012
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 07-10-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 24-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: YOGESH K VERMA
• Assessee Lawyers: UMESH GUPTA
• Keywords: Depreciation; Opportunity of being heard; Additional evidence; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER AND SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-1883/DEL/ 2012 (ASSESSMENT YEAR-2007-08) ITO, WARD-39(1), ROOM NO.-381, C.R. BUILDING, I.P.ESTATE, NEW DELHI-110002. (APPELLANT) VS M/S ARYAN LIFE STYLE PVT. LTD., 17B, MGF HOUSE, ASAF ALI ROAD, NEW DELHI-110002. P AN-AAFCA5158F (RESPONDENT) APPELLANT BY SH. YOGESH K. VERMA, CIT DR RESPONDENT BY SH. UMESH GUPTA, CA ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 17.02.2012 OF CIT(A)-V, NEW DELHI PERTAINING TO 2007-08 ASSESSMEN T YEAR ON THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT(APPEALS) HAS ERRED ON FACTS AND IN LAW IN ADMITTING ADDITIONAL EVIDENCES FILED BY THE ASSESSE E IN VIOLATION OF RULE 46D OF THE I.T. RULES. 2. THE LEARNED CIT(APPEALS) HAS ERRED ON FACTS IN DELE TING THE DISALLOWANCE OF RS.58,16,787/- MADE U/S 40(A)(IA) B Y THE A.O. ON ACCOUNT OF RENTAL EXPENSES. 3. THE LEARNED CIT(APPEALS) HAS ERRED ON FACTS IN DELE TING THE DISALLOWANCE OF RS.2,13,81,924/- MADE BY A.O. ON AC COUNT OF OFFICE AND ADMINISTRATIVE EXPENSES. 4. THE LEARNED CIT(APPEALS) HAS ERRED ON FACTS IN DELE TING THE DISALLOWANCE OF EXPENDITURE ON FIXED ASSETS AT RS.2 ,00,00,000/- AND DISALLOWANCE DEPRECIATION OF RS.20,00,000/-. 5. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEA L AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. I.T.A .NO.-1883/DEL/ 2012 2 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IN THE YEAR UNDER CONSIDERATION E-FILED ITS RETURN DECLARING AN INCOM E OF RS.13,905/-. HOWEVER AS PER THE COMPUTATION OF INCOME BUSINESS LOSS FOR THE YEA R SHOWN WAS RS.4,50,96,221/- AND AFTER ADJUSTING SHORT-TERM CAPITAL GAIN OF RS.1 3,905/-, THE LOSS CARRIED FORWARD TO THE NEXT YEAR WAS SHOWN AS RS.4,50,82,316/-. AS PE R THE ASSESSMENT ORDER IN THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS EARNED IN COME FROM TRADING OF SPORTS GOODS, FOOT WEAR, APPARELS AND ACCESSORIES ETC FROM RETAIL OUTLETS AT VARIOUS LOCATIONS. IN THE COURSE OF THE ASSESSMENT PROCEED INGS THE ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNTS FOR EXAMINATION AND VERIF ICATION OF THE DETAILS SUBMITTED. HOWEVER THE BOOKS OF THE ACCOUNTS WERE NOT PRODUCED . ACCORDINGLY QUA THE GROUND 2,3 & 4, THE AO MADE ADDITIONS FOR THE REASONS SET OUT IN PARA 3.2, 3.3 & 3.4 OBSERVING AS UNDER :- 3.2. DISALLOWANCE U/S 40(A)(IA):- PERUSAL OF DETAI LS FILED SHOWN THAT TDS HAS NOT BEEN DEDUCTED ON COMMISSION OF RS.5,87, 667/- PERTAINING TO MAY, 2006 PAYABLE/PAID TO M/S ADM APP ARELS, THEREFORE, THE SAME IS DISALLOWED AS PER THE PROVIS ION OF SECTION 40(A)(IA) OF THE IT ACT, 1961. SIMILARLY, OUT OF R ENTAL EXPENSES OF RS.2,95,04,177/-, IT IS SEEN THAT TDS HAVE BEEN PAI D ON AGGREGATE AMOUNT OF RS.52,29,120./- PERTAINING TO FEBRUARY 20 07 IN THE MONTH OF JUNE 2007. SINCE, TDS PERTAINING TO FEBRU ARY 2007 SHOULD HAVE BEEN PAID DURING THE FINANCIAL YEAR ITS ELF AS PER PROVISIONS OF SECTION 40(A)(IA) OF THE IT ACT, 1961 , THE SAME IS DISALLOWED AND ADDED TO THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR 2007-08. SINCE, BOOKS OF ACCOUNTS HAVE NOT BEEN PRODUCED FOR VERIFICATION IT CAN NOT BE AS CERTAINED AS TO WHETHER THE TDS HAVE BEEN DEDUCTED AND PAID AS PER THE PROVISIONS OF SECTION 40(A)(IA), THEREFORE, A FURTH ER DISALLOWANCE OF RS.25,00,000/- IS MADE ON ESTIMATED BASIS. THUS , TOTAL DISALLOWANCE U/S 40(A)(IA) COMES TO RS.58,16,787/- 3.3. IT IS OBSERVED THAT OFFICE AND ADMINISTRATIVE EXPEN SES OF RS.7,12,73,080/- IS MORE THAN THE COST OF GOODS SOL D I.E. RS.6,58,50,604/-. THUS, IT IS APPARENTLY EXCESSIVE , UNREASONABLE AND UNJUSTIFIED. SINCE BOOKS OF ACCOUNTS HAVE ALSO NOT BEEN PRODUCED DURING THE ASSESSMENT PROCEEDINGS A SUM OF RS.2,13,81,924/- I.E @ 30% OF THE SAID EXPENSES IS DISALLOWED I.T.A .NO.-1883/DEL/ 2012 3 BEING UNVERIFIED, UNREASONABLE AND EXCESSIVE AND AD DED TO THE INCOME OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR 2007-08. 3.4. AN ADDITION OF RS.9,97,91,647/- HAVE BEEN MADE IN F IXED ASSETS. SINCE, BOOKS OF ACCOUNTS ALONG WITH BILL, VOUCHERS, IN RESPECT OF THE SAID ADDITION IN FIXED ASSETS HAVE NOT BEEN FUR NISHED A SUM OF RS.2,00,00,000/- IS DISALLOWED OUT OF ADDITION OF R S.8,8893,149/- IN FURNITURE AND FITTING BLOCKS ON ACCOUNT OF BEING UNVERIFIED EXPENSES AND ADDED TO THE INCOME OF THE ASSESSEE FO R THE RELEVANT ASSESSMENT YEAR. DEPRECIATION OF RS.20,00,000/- I S ALSO DISALLOWED ACCORDINGLY. 3. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, PETITION MOVED UNDER RULE 46A BY THE ASSESSEE WAS ACCEPTED. CONSIDERING THE ARGU MENTS ADVANCED ON BEHALF OF THE ASSESSEE, GROUND NO-2 RAISED IN THE PRESENT PETITIO N WAS DECIDED IN THE FOLLOWING MANNER:- 4.1. THE ISSUE INVOLVED AND THE SUBMISSION MADE B Y THE APPELLANT HAVE BEEN CONSIDERED. ANYBODY VERIFYING THE DETAILS OF TDS CAN SEE THAT THE APPELLANT HAS ITSELF NOTED THE DATE OF TDS IN A WRONG FASHION WHICH IS DIFFERENT FROM THE EARLIER ONE-IT IS NOT CONTINUOUSLY WRITING DATES AS PER DATE FIRST, MONT H AFTERWARDS AND YEAR IN THE END. THIS CAN BE SEEN FROM PAGE 10 6 & 107 OF THE PAPER BOOK (PB). IT IS ONLY ON ACTUAL VERIFICA TION AND THAT ALSO ON BEING TOLD BY THE APPELLANT OR ITS AR THAT ONE CAN FIND OUT THAT MONTH HAS BEEN WRITTEN FIRST, DATE SECOND AND YEAR IN THE END OF THE TDS PERTAINING TO FEBRUARY DEPOSITED IN MARC H 2007 I.E. 3.6.2007 STANDS FOR 6 TH MARCH 2007. (FAULT DOES NOT LIE WITH THE AO AS SUCH) BUT THE FACT REMAINS THAT HE DID NOT CO NVINCED WITH THE VERSION OF THE APPELLANT. ALTHOUGH THE SUMMERY OF TDS ON THE SAME ACCOUNT I.E TDS ON RENT PAYMENT IS AVAILAB LE ON PAGE 109 OF THE PAPER BOOK. THE UNDERSIGNED HAS SEEN CO PY OF CHALLANS (PG 110 OF THE PB) SHOWING THE DEPOSIT OF TDS AND THE PAYMENT HAS BEEN FOUND IN ORDER. THEREFORE, THE DI SALLOWANCE OF RENTAL EXPENSES MADE UNDER SECTION 40(A)(IA) IS DEL ETED AND THE GROUND OF APPEAL IS ALLOWED. 3.1. QUA GROUND NO-3 AGITATED BY THE REVENUE, THE I SSUE WAS CONCLUDED VIDE PARA 5.1 IN THE FOLLOWING MANNER:- I.T.A .NO.-1883/DEL/ 2012 4 5.1. THE ISSUE INVOLVED AND THE SUBMISSION MADE BY THE APPELLANT HAVE BEEN CONSIDERED:- (I) THE AO HAS MADE DISALLOWANCE OF 30% OF THE TOTAL OF FICE AND ADMINISTRATIVE EXPENSES PURELY ON ADHOC BASIS W ITHOUT BRINGING ANYTHING ON RECORD THAT TO SHOW THAT THE P AYMENTS WERE BOGUS OR DID NOT HAVE BUSINESS NEXUS. (II) EVEN IF THE BOOKS OF ACCOUNT WERE NOT PRODUCED DURI NG ASSESSMENT PROCEEDINGS, THE SAME WERE PRODUCED DURI NG REMAND PROCEEDINGS AS NOTED ABOVE AND THE AO APPEARS TO HA VE EXAMINED THE SAME. (III) THE AO WAS GIVEN REASONABLE OPPORTUNITY TO SUBMIT I TS REMAND REPORT-A LETTER ASKING FOR THE REMAND REPORT WAS ISSUED ON 12.10.2011; THE REMAND REPORT WAS RECEIVED ON 11 .02.2011. IN VIEW OF THE ABOVE, THE ADDITIONS MADE BY THE AO ARE DELETED AND THE GROUNDS OF APPEAL NO.5 IS ALLOWED. 3.2. SIMILARLY THE ISSUE AGITATED BY GROUND NO-4 WA S DECIDED IN ASSESSEES FAVOUR VIDE GROUND NO.-6.1 IN THE FOLLOWING MANNER:- 6.1. THE ISSUE INVOLVED AND THE SUBMISSION MADE BY THE APPELLANT HAVE BEEN CONSIDERED. THE AO HAS NOT EST ABLISHED THAT THE EXPENDITURE ON FIXED ASSETS WAS FROM UNDISCLOSE D SOURCES. HE HAS NOT CONDUCED ANY INQUIRY EVEN DURING REMAND PROCEEDINGS AS TO THE SOURCE OF INVESTMENT IN THE A SSETS UNDER CONSIDERATION. THIS IS ALSO A FACT THAT THE ASSESS EE HAS NOT CLAIMED THE EXPENDITURE IN ITS PROFIT & LOSS A/C SI NCE IT IS CAPITAL EXPENDITURE AND HAS ADDED TO ITS FIXED ASSETS. THE REFORE, THE ADDITION OF RS.2 CRORES ON ACCOUNT OF FIXED ASSETS AND RS.20 LACS ON ACCOUNT OF DEPRECIATION ARE DELETED. THIS GROUN D OF APPEAL IS THEREFORE ALLOWED. 4. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. WHEREAS THE LD. CIT DR PLACED HEAVY RELIANCE UPON THE ASSESSMEN T ORDER, COPY OF THE REMAND REPORT WAS FILED SO AS TO EMPHASIZE THAT DESPITE TH E FACT THAT THE ISSUE WAS REMANDED EVEN IN THE REMAND PROCEEDINGS THE ASSESSEE DID NOT COMPLY WITH THE SPECIFIC DIRECTIONS GIVEN IN REGARD TO THE PRODUCTION OF REL EVANT RECORD, BOOKS OF ACCOUNTS AND VOUCHERS ETC. SPECIFICALLY ADDRESSING GROUND N O-2 IT WAS HIS SUBMISSION THAT THE CIT(A) HAS GIVEN A FINDING THAT THE ASSESSEE HA D NOTED ALL DATA OF TDS IN WRONG I.T.A .NO.-1883/DEL/ 2012 5 FASHION AND MADE SPECIFIC REFERENCE TO PAGES 106 AN D 107 OF THE PAPER BOOK HOWEVER IN THE COPIES AVAILABLE IN THE PAPER BOOK, THE RELEVANT MONTHS ARE NOT VERY CLEAR. AS SUCH IT WAS HIS REQUEST THAT THE ASSESSE E SHOULD BE DIRECTED TO PRODUCE ORIGINAL DOCUMENTS. QUA THE OTHER ISSUES IT WAS AL SO HIS STAND THAT DESPITE BEING AFFORDED SPECIFIC OPPORTUNITIES THE ASSESSEE COULD NOT PRODUCE THE RELEVANT RECORD NEITHER IN REGARD TO THE ADMINISTRATIVE EXPENSES NO R IN REGARD TO THE AMOUNT OF INVESTMENT MADE BY THE ASSESSEE. IN THE CIRCUMSTAN CES IT WAS HIS PRAYER THAT THE IMPUGNED ORDER BE SET ASIDE AND THE ASSESSMENT ORDE R BE UPHELD. 5. THE LD. AR ON THE OTHER HAND HEAVILY RELIED UPON THE IMPUGNED ORDER. IT WAS HIS SUBMISSION THAT DUE TO LACK OF OPPORTUNITY IN T HE ASSESSMENT PROCEEDINGS THE BOOKS OF ACCOUNTS COULD NOT BE PRODUCED. THE SAID REPLY WAS GIVEN BY THE LD. AR IN RESPONSE TO THE SPECIFIC QUERY OF THE BENCH AS T HE AO HAS MADE AN OBSERVATION THAT THE ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNTS FOR EXAMINATION AND VERIFICATION WHICH WERE NOT PRODUCED. ADDRESSING T HE SAME, THE LD. AR SUBMITTED THAT IN THE REMAND PROCEEDINGS THE BOOKS OF ACCOUNT S WERE PRODUCED AND CONSIDERING THE SAME, THE RELIEF HAS BEEN GRANTED BY THE CIT(A) . IN VIEW OF THE FACT THAT THE DEPARTMENT HAD POINTED OUT THAT THE PHOTOCOPIES WER E NOT CLEARLY SHOWING THE MONTH. THE LD. AR WAS REQUIRED TO FILE CLEARER CO PIES. RESPONDING TO THE SAID OPPORTUNITY TO SHOW ORIGINAL DOCUMENT, LD. AR FILE D A COPY OF CHALLAN STATED TO BE DOWNLOADED FROM THE WEBSITE OF THE DEPARTMENT. SIN CE IT WAS NOT CONFIRMED THE LD. AR WAS REQUIRED TO CERTIFY THE SAME AND HE WAS ASKE D WHETHER THE ORIGINAL DOCUMENT WAS AVAILABLE TO HIM. IN RESPONSE TO WHIC H IT WAS STATED THAT THE ORIGINAL DOCUMENTS ARE AVAILABLE AND THE DOCUMENT SOUGHT TO BE FILED IT WAS STATED WOULD BE CERTIFIED. LD. AR WAS ALSO REQUIRED TO ADDRESS THE REMAND REPORT AVAILABLE ON RECORD FILED BY THE ASSESSEE ITSELF AT PAGES 293-29 5 OF THE PAPER BOOK. A PERUSAL OF THE SAME SHOWS THAT THE AO REQUIRED THE ASSESSEE VI DE LETTER DATED 26.10.2010 TO SUBMIT THE FOLLOWING INFORMATION:- I.T.A .NO.-1883/DEL/ 2012 6 ..1. DETAILS OF PAYMENT IN RESPECT OF WHICH TAX HA S BEEN DEDUCTED AT SOURCE DURING THE YEAR, IN THE FOLLOWING FORMAT- ALSO PROVIDE COPY OF TDS RETURN FOR THE RELEVANT AS ST. YEAR 2007- 08 ALONGWITH EVIDENCE OF PAYMENT OF TDS DEDUCTED ( IN ORIGINAL) AND HIGHLIGHT CORRESPONDING ENTRIES IN YOUR BANK ST ATEMENTS. 2. COMPLETE DETAILS OF ADMINISTRATIVE EXPENSES OF RS.7 ,12,73,080/- ALONGWITH SUPPORTING DOCUMENTS I.E RENT AGREEMENTS, SALES TAX ORDER, COMMISSION PAYMENT DETAILS ETC. IN ORIGINAL FOR VERIFICATION. ALSO GIVE JUSTIFICATION FOR SUCH EXP ENDITURE. PLEASE HIGHLIGHT THESE EXPENSES IN BANK STATEMENT FOR VERI FICATION. 3. COMPLETE DETAILS OF ADDITION IN FIXED ASSETS WITH O RIGINAL BILLS, VOUCHERS AND COMPLETE BOOKS OF ACCOUNTS (LEDGER, CA SH BOOK, BANK BOOK, JORNAL, FIXED ASSET REGISTER ETC.) IN OR IGINAL FOR EXAMINATION/VERIFICATION. 5.1. A PERUSAL OF THE SAME SHOWS THAT AS PER PARA 3 OF REMAND REPORT DATED 09.02.2011, THE EVIDENCE FILED WAS FOUND TO HAVE VA RIOUS SHORTCOMINGS DESPITE SPECIFIC OPPORTUNITY BEING GIVEN. AS A RESULT OF T HIS SITUATION, THE AO ISSUED ANOTHER LETTER TO THE ASSESSEE ON 12.01.2011 REQUIRING HIM TO PRODUCE THE FOLLOWING INFORMATION:- 4. ON 12.01.2011 LETTER WAS AGAIN ISSUED TO THE AS SESSEE FOR PRODUCING THE FOLLOWING:- 1. PLEASE FURNISH THE DETAILS OF PAYMENT (AS PER P& L A/C) IN RESPECT OF WHICH TAX HAS BEEN DEDUCTED AT SOURCE DURING THE YEAR, IN THE FOLLOWING FORMAT:- 2. COPY OF TDS RETURN PERTAINING TO THE A.Y.2007-08 ALONGWITH COPY OF CHALLANS SHOWING TDS PAYMENTS. PLEASE HIGHLIGHT PAYMENT OF TDS WITH RESPECT OF RENT, COMMISSION AND S.NO. HEAD OF A/C IN P&L A/C NATURE OF PAYMENT GROSS AMOUNT PAID BY YOU TAX DEDUCTED DATE OF DEPOSIT OF TAX DEDUCTED S.NO. HEAD OF A/C IN P&L A/C GROSS AMOUNT PAID BY YOU AMOUNT ON WHICH TDS DEDUCTED & PAID AMOUNT OF TAX DEDUCTED/ RATE OF TDS DATE OF DEPOSIT OF TAX DEDUCTED I.T.A .NO.-1883/DEL/ 2012 7 BROKERAGE, COMMISSION PAID, REPAIR & MAINTENANCE EXPENSES, SECURITY CHARGES, LEGAL & PROFESSIONAL EXPENSES AND SALARIES 3. PLEASE GIVE DETAILED NOTES AND JUSTIFICATION OF COMMISSION AND BROKERAGE AS WELL AS COMMISSION PAID, AS SHOWN IN P&L ACCOUNT. ALSO, FURNISH COMPLETE DETAILS OF PARTIE S TO WHOM COMMISSION, BROKERAGE ETC. PAID ALONGWITH THEIR CON FIRMED COPIES OF ACCOUNTS AND COPIES OF ITR FOR THE RELEVA NT A.Y.2007- 08. 4. PLEASE FURNISH COMPLETE DETAILS OF PARTIES TO WH OM RENT WERE PAID ALONGWITH THEIR CONFIRMED COPIES OF ACCOUNTS A ND COPIES OF ITR FOR THE RELEVANT A.Y.2007-08. 5. PLEASE FURNISH COMPLETE DETAILS OF PERSONS TO WH OM SALARIES WERE PAID I.E NAMES, ADDRESSES, PLACE OF POSTING, MONTHL Y SALARY AND GROSS SALARY PAID DURING A.Y.2007-08. ALSO, PROVID E COPY OF FORM NO-16 ISSUED TO THE EMPLOYEES. 5.2. CONSEQUENT TO THIS AS PER RECORD THE AO CAME T O THE FOLLOWING CONCLUSION IN PARA 4 & 5 WHICH IS EXTRACTED FROM HIS REPORT AVAIL ABLE ON RECORD:- 4. MATTER WAS FIXED FOR 18.01.2011 TO FURNISH ABOV E SAID DOCUMENTS BEFORE THE UNDERSIGNED. ON THAT DATE, LETTER DATED 18.01.2011 WAS FILED MAKING CLAIMS ABOUT PRODUCING THE DETAILS TWICE ON 09.11.2010 AND 16.11.2010. CONTENTS OF THE LETTER SHOWS ASSESSEE S/A.R.S UNCOMFORTABLENESS IN FURNISHING DETAILS AS REQUIRED . I DO NOT AGREE WITH THE CLAIM MADE REGARDING PRODUCTION OF DETAILS AS STATED IN THE SAID LETTER. SINCE, I WAS REQUIRED BY YOUR GOODSEL F TO SEND REMAND REPORTS OBVIOUSLY I NEEDED TO EXAMINE THE ISSUES PE RTAINING TO ADDITIONS MADE. SINCE, THE MATTER COULD NOT BE EXAMINED ON 0 9.11.2010 AND 16.11.2010 DUE TO PAUCITY OF TIME AND URGENCY OF AT TENDING TO OTHER PRESSING MATTERS, LETTER DATED 12.01.2011 WAS ISSUE D AFFORDING THE ASSESSEE ANOTHER OPPORTUNITY FOR FURNISHING CERTAIN DETAILS, AS STATED ABOVE. IT MAY BE SEEN THAT DESPITE BEING AFFORDED THREE OPPORTUNITIES, DETAILS REQUITED VIDE LETTERS DATED 26.10.2010 AND 18.01.2011 WERE NOT FURNISHED. 5. SINCE, DETAILS REQUIRED AS STATED ABOVE WERE NOT FURNISHED THE ISSUES RELATING TO ADDITIONS MADE IN THE ASSESSMENT ORDER REMAINS UNEXPLAINED AND THEREFORE, I WOULD REQUEST YOUR GOO DSELF TO SUSTAIN THE ADDITIONS MADE AND UPHOLD THE ASSESSMENT ORDER. I.T.A .NO.-1883/DEL/ 2012 8 6. THE LD. AR WAS REQUIRED BY THE BENCH TO ADDRESS THE SAME. IN RESPONSE THERETO IT WAS SUBMITTED THAT THE REMAND REPORT WAS REFUTED BY THE ASSESSEE. THE ASSESSEES SUBMISSIONS IT WAS STATED IS PLACED AT P AGES 86-89 OF THE PAPER BOOK. A PERUSAL OF THE SAME SHOWS THAT APART FROM FAULTING THE AO AND INSISTING THAT THE ASSESSEE WAS REPRESENTED BY MR. SAHEED RIZVI, THE A SSESSEE HAS NOT BEEN ABLE TO GIVE ANY COGENT EXPLANATION ADDRESSING THE SPECIFIC OBJE CTIONS OF THE AO. WE HAVE GONE THROUGH THE IMPUGNED ORDER AND HAVE ALREADY EXTRACT ED THE REASONING CONCLUDING THE ISSUE IN FAVOUR OF THE ASSESSEE GIVEN BY THE CIT(A) . ACCORDINGLY IN THE LIGHT OF THESE PECULIAR FACTS, CIRCUMSTANCES AND SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AS AVAILABLE ON RECORD, WE HOLD THAT GROUND NO-1 OF THE DEPARTMENT IN REGARD TO ADMISSION OF ADDITIONAL EVIDENCE DESERVES TO BE DIS MISSED AS EVIDENTLY SUFFICIENT OPPORTUNITY WAS NOT AVAILABLE DURING THE ASSESSMENT PROCEEDINGS. QUA GROUND NO.- 2, THE RELEVANT EVIDENCE REQUIRED TO BE FILED BY TH E ASSESSEE FOR WHICH PURPOSE THE APPEAL WAS ADJOURNED TO THE NEXT DATE THE ASSESSEE HAS FILED A PRINTOUT FROM THE WEBSITE OF THE DEPARTMENT HOWEVER THE SAME HAS NOT BEEN CERTIFIED. THE ORIGINAL DOCUMENT HAS NOT BEEN SHOWN DESPITE A SPECIFIC OPPO RTUNITY. ACCORDINGLY IN THE CIRCUMSTANCES WE FIND OURSELVES UNABLE TO CONCUR WI TH THE REASONING AND FINDING GIVEN BY THE CIT(A) IN PARA 4.1. THE ISSUE AS SUCH IS RESTORED BACK TO THE AO WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSE E IS DIRECTED TO PRODUCE THE ORIGINAL DOCUMENTS BEFORE THE AO IN SUPPORT OF THE CLAIM. ADDRESSING GROUND NO- 3, IT IS SEEN THAT NO SPECIFIC INDEPENDENT REASONIN G HAS BEEN GIVEN IN PARA 5.1 BY THE CIT(A). IT IS SEEN THAT THE REASONING GIVEN THAT T HE BOOKS OF ACCOUNTS PRODUCED BEFORE THE AO IN THE REMAND PROCEEDINGS IS FACTUALL Y INCORRECT. SINCE THE LD. AR ASSURED ON A SPECIFIC QUERY BY THE BENCH THAT THE B OOKS OF ACCOUNTS ARE AVAILABLE ACCORDINGLY IT IS CONSIDERED APPROPRIATE IN THE INT ERESTS OF JUSTICE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE TO THE FILE OF THE AO WHO SHALL EXAMINE THE I.T.A .NO.-1883/DEL/ 2012 9 ISSUE DE NOVO AFTER GIVING THE ASSESSEE A REASONABL E OPPORTUNITY OF BEING HEARD. SAME IS THE POSITION IN REGARD TO THE ISSUE ADDRESS ED IN GROUND NO-4 AS THE FACTUM OF INVESTMENT QUA THE ORIGINAL DOCUMENTS AND BOOKS OF ACCOUNTS WERE NEVER PRODUCED BEFORE THE AO. IN THE CIRCUMSTANCES, WE D ONOT FIND THE REASONING GIVEN BY THE CIT IN PARA 6.1 TO BE A COGENT REASONING AS THE NECESSARY FACTS QUA THE ISSUE WERE NEVER PRODUCED AND THE CIT(A) HAS NOT ADDRESSED THI S FACT. THE ASSESSEE IS DIRECTED TO PRODUCE THE RELEVANT RECORD. ACCORDINGLY GROUN D NO-4 RAISED BY THE REVENUE IS ALSO ALLOWED FOR STATISTICAL PURPOSE AND THE ISSUE IS RESTORED BACK TO THE FILE OF AO WHO SHALL DECIDE THE SAME IN ACCORDANCE WITH LAW AF TER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS PART LY ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH OF OCTOBER 2013. SD/- SD/- (R.S.SYAL) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:28/10/2013 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIST ANT REGISTRAR ITAT NEW DELHI