Sh. Kuldeep Sharma, Ghaziabad V. ITO, Ghaziabad

ITA 1903/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3105 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Principle of natural justice

Judgement Text

1 ITA NO. 1903/DEL/2016 IN THE INCOME TAX APPELLA TE TRIBUNAL DELHI BENCH: C NEW DELHI BEFORE SHRI G. D. AGRAWAL, PRESIDE NT AND MS SUCHITRA KAMBLE, JUDI CIAL MEMBER I.T.A .NO. 1903/DEL/2 016 (A.Y 2008-09) KULDEEP SHARMA C/O. M/S. N. BHUSHAN & CO. CAS C-12/114, FIRST FLOOR, D. B. PLAZA, R. D. C, RAJ NAGAR GHAZIABAD ANTPS1033P (APPELLANT) VS ITO WARD-1(3) GHAZIABAD (RESPONDENT) APPELLANT BY SH. SAURABH GUPTA, ADV RESPONDENT BY NONE ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 12/01/2016 PASSED BY CIT (A)-, GHAZIABAD FOR ASSESSMENT YEAR 2 008-09.. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING AN AGGREGATE AMOUNT OF RS.21,82,250/- U NDER THE HEAD JOB WORK CHARGES PAYABLE, WAGES PAYABLE AND LABOUR CHAR GES PAYABLE AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEA RING AND WITHOUT CONSIDERING THE SUBMISSIONS AND EVIDENCES AVAILABLE ON RECORD AND BY RECORDING INCORRECT FACTS AND FINDINGS. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN DATE OF HEARING 14.03.2018 DATE OF PRONOUNCEMENT 15.03.2018 2 ITA NO. 1903/DEL/2016 MAKING ADDITION OF RS.20,000/- ON ACCOUNT OF ALLEGE D UNEXPLAINED CREDIT AND THAT TOO WITHOUT CONSIDERING THE SUBMISSION OF THE ASSESSEE. 3. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, IMPUGNED ADDITION/DISALLOWANCE AND IMPUGNED PENALTY ORDER AR E BAD IN LAW, ILLEGAL, UNJUSTIFIED, CONTRARY TO FACTS & LAW AND BASED UPON RECORDING OF INCORRECT FACTS AND FINDING, WITHOUT GIVING ADEQUATE OPPORTUN ITY OF HEARING, IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE AND THE SAME DESERVES TO BE QUASHED. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING THE IMPUGNED EX-PARTE ORDER AND THAT TOO WITHOUT GIVING ADEQUATE OPPORTUN ITY OF HEARING AND WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT THE LD. CIT(A) HAVE WRONGLY MENTIONED IN P ENALTY ORDER THAT THE CASE LAWS CITED BY THE APPELLANT ARE DISTINGUIS HABLE. BUT HE DID NOT MENTIONED IN HIS ORDER THAT WHY THE CASES CITED BY THE ASSESSEE IS DIFFER FROM THE FACTS AND CIRCUMSTANCES OF THE CASE. ALTHO UGH, CASES REFERRED BY THE LD.CIT(A) IS NOT RELEVANT FROM FACTS OF THE CAS E. 3. ASSESSEE IS CARRYING THE BUSINESS OF CIVIL CON TRACTORS. HE FILED THE RETURN OF INCOME DECLARING AN INCOME OF RS. 3,96,059.00 ON 29 /09/2008. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143( 2) WAS ISSUED. THE ASSESSING OFFICER MADE THE DISALLOWANCE OF THE EXPENSES OF RS . 21,82,250.00 AND MADE ADDITION OF RS.20,000.00 ON THE GROUND OF UNEXPLAIN ED CREDIT AND THE SAME WAS CONFIRMED BY THE CIT(APPEALS), GHAZIABAD. ON TH E BASIS OF THE ADDITIONS CONFIRMED BY THE CIT(APPEALS), NOTICE UNDER SECTION 27L(L)(C) WAS ISSUED TO THE ASSESSEE. THEREAFTER, PENALTY OF RS. 6,84,849/- WAS IMPOSED ON THE ASSESSEE. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASS ESSEE AND CONFIRMESD THE PENALTY. 5. THE LD. AR SUBMITTED THAT IN THE QUANTUM APPEAL, THE TRIBUNAL VIDE ORDER DATED 29/07/2016 (ITA NO. 01/DEL/2014 A.Y. 20 08-09) RESTORED THE ISSUE TO THE FILE OF THE CIT (A) FOR DECIDING DENOV O. THEREFORE, THE LD. AR 3 ITA NO. 1903/DEL/2016 REQUESTED THAT THE ISSUE OF PENALTY CANNOT BE ADJUD ICATED AS THE QUANTUM ON WHICH THE ASSESSMENT ORDER WAS PASSED IS BEFORE THE CIT(A) FOR FRESH ADJUDICATION. 6. NONE APPEARED FOR THE DEPARTMENTS, BUT THERE WAS ADJOURNMENT APPLICATION ON BEHALF OF THE DR. SINCE THE ISSUE I S COVERED AGAINST THE ASSESSEE BY THE HONBLE APEX COURT DECISION, NO HAR M WILL BE CAUSE TO THE REVENUE IN CASE THE MATTER IS DECIDED. THEREFORE, W E ARE TAKING UP THE APPEAL. 7. WE HAVE HEARD LD. AR AND PERUSED THE QUANTUM APP EAL ORDER PASSED BY THIS TRIBUNAL. THE TRIBUNAL IN PARA 5 HELD AS UNDE R:- 5 WE HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ENTIRE MATERIAL ON RECORD INCLUDIN G THE ORDERS OF THE AUTHORITIES BELOW. IT IS APPARENT FROM THE RECORD T HAT THE ASSESSEE HAD FURNISHED VOUCHERS FOR EXPENDITURE CLAIMED BEFORE T HE ASSESSING OFFICER. THE IMPUGNED ORDER THE ID. CIT(A) IS EX PARTE, FOR WHICH THE ASSESSEE HAS CONTENDED THAT PROPER OPPORTUNITY OF HEARING WAS N OT PROVIDED TO IT TO FURNISH THE EVIDENCES AND TO REBUT THE OBJECTIONS OF THE ID. ASSESSING OFFICER WITH RESPECT TO THE EXPENDITURE BY THE ASSE SSEE IN THE MONTHS FOLLOWING TO MARCH. IT IS ALSO NOTABLE THAT THE ASS ESSEE HAS DECLARED NET PROFIT AT THE RATE MORE THAN THAT PRESCRIBED U/S. 4 4AD AND THE NET PROFIT RATE IS PROGRESSIVE AS COMPARED TO THE PREVIOUS YEA R. THE ASSESSEE IS SHOWN TO HAVE DONE WORK OF RS.45,91,903/-. IF THE T OTAL INCOME ASSESSED BY THE ASSESSING OFFICER AT RS.25,98,312/- AGAINST THE WORK OF RS.45,91,903/- DONE BY ASSESSEE DURING THE YEAR IS TAKEN INTO CONSIDERATION, IT WILL GIVE NET PROFIT RATE OF 56.5 8% WHICH IS QUITE IMAGINARY IN THE LINE OF APPELLANTS BUSINESS. THE ID. AUTHOR ITIES BELOW HAVE NOT VIEWED THE MATTER FROM THIS ANGLE ALSO. KEEPING ALL THESE FACTS IN VIEW, WE DEEM IT APPROPRIATE IN THE INTEREST OF JUSTICE TO R ESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE APPEAL DE NOVO AFTE R CONSIDERING ALL THE ABOVE FACTS AND GIVING ONE MORE OPPORTUNITY OF BEIN G HEARD TO THE 4 ITA NO. 1903/DEL/2016 ASSESSEE TO EXPLAIN AND FURNIS H CORROBORATING EVIDENCES IN SUPPORT OF ITS CONTENTIONS AND CLAIMS. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES... THEREFORE, IT WILL BE APPROPRIATE TO SEND THIS ISS UE TO THE FILE OF CIT(A) AND DECIDE IT ALONGWITH THE QUANTUM APPEAL. NEEDLESS T O SAY, THE ASSESSEE BE GIVEN FULL OPPORTUNITY OF HEARING FOLLOWING PRINCIPALS OF NATURAL JUSTICE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 15TH MARCH, 2018 . SD/- SD/- (G. D. AGRAWAL) (SUCHITRA KAMBLE) PRESIDENT J UDICIAL MEMBER DATED: 15/03/2018 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 1903/DEL/2016 DATE 1. DRAFT DICTATED ON 14/03/2018 PS 2. DRAFT PLACED BEFORE AUTHOR 14/03/2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2018 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 15.03.2018 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 5 .03.2018 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.