Sh. Sumat Jindal, Gurgaon V. ITO, Gurgaon

ITA 2196/DEL/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5593 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 25-02-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BANITA DEVI
• Assessee Lawyers: KULDEEP MEHTA
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 2196/DEL/2009 ASSESSMENT YEAR: 2005-06 SUMAT JINDAL, 462/5, PATEL NAGAR, GURGAON, AAOPJ5006F VS. ITO, WARD-2, GURGAON. (APPELLANT) (RESPONDENT) APPELLANT BY : KULDEEP MEHTA, CA RESPONDENT BY: BANITA DEVI, SR. DR O R D E R PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF CIT(A) DATED 02.03.09 FOR A.Y. 2005-06. G ROUNDS OF APPEAL READ AS UNDER: - 1. THE ORDER OF CIT(A)-PANCHKULA IS BAD IN ALW AND IS AGAINST FACTS ON RECORD. 2. LD. CIT(A)-PANCHKULA HAS ERRED IN LAW AND ON FAC T, IN CONFIRMING ADDITION OF RS. 5 LAKH ON ACCOUNT OF UNEXPLAINED LO ANS ON BASIS OF OBSERVATIONS WHICH ARE CONTRARY TO EVIDENCES ON REC ORD WITHOUT ANY JUSTIFICATION. 3. LD. CIT(A)-PANCHKULA HAS ERRED IN LAW AND ON FAC T, IN CONFIRMING ADDITION OF RS. 5 LAKH U/S 68 MADE BY LD. AO IN A M ANNER CONTRARY TO PROCEDURE OF ASSESSMENT LAID DOWN US/ 143 & THER EBY DEPRIVING ASSESSEE OF HIS RIGHT OF BEING HEARD WITH OUT ANY JUSTIFICATION. 2 ITA NO. 2196/DEL/2009 4. LD. CIT(A)-PANCHKULA HAS ERRED IN LAW AND ON FAC T, IN CONFIRMING ADDITION OF RS. 5 LAKH U/S 68 BY NOT TAKING NOTE OF ADDITIONAL EVIDENCES FURNISHED AT TIME OF HEARING OF APPEAL WI THOUT ANY JUSTIFICATION. 5. LD. CIT(A)-PANCHKULA HAS ERRED IN LAW AND ON FAC T, IN CONFIRMING ADDITION OF RS. 5 LAKH U/S 68 BY CONCLUDING THAT AS SESSEE HAS NOT DISCHARGE HIS ONUS U/S 68 WITHOUT ANY JUSTIFICATION . 6. LD. CIT(A)-PANCHKULA HAS ERRED IN LAW AND ON FAC T BY NOT DELETING ARBITRARY ADDITION OF RS. 34158/- (RESTRICTING DISA LLOWANCE OF RS. 34158/- TO RS. 10,000/0-) IN RESPECT OF EXCESSIVE E XPENSES WITHOUT ANY JUSTIFICATION. 7. THE APPELLANT RESERVES THE RIGHT TO ADD, DELETE, AMEND, FOREGO ANY GROUND OF APPEAL. 2. GROUND NO. 1 IS GENERAL IN NATURE AND IN GROUND NO. 2 TO 5 THE GRIEVANCE OF THE ASSESSEE IS REGARDING ADDITION OF RS. 5 LAKH. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THA T ASSESSEE HAD OBTAINED A SUM OF RS. 5 LAKH AS FRESH LOAN FROM ONE SHRI BAL KISHAN SHARMA. FOR PROVING THE SAID LOAN ASSESSEE SUBMITT ED CONFIRMATION ON PLAIN PAPER ALONG WITH COPY OF BANK ACCOUNT OF THE PERSON FROM WHOM THE LOAN WAS TAKEN. FROM THE COPY OF ACCOUNT THE A O NOTICED THAT THE SUM WAS GIVEN TO ASSESSEE ON 19 TH OCTOBER, 2004 AND THERE WAS FURTHER CREDIT IN THE SAID ACCOUNT ON 27 TH OCTOBER, 2004. THE AO OBSERVED THAT THE ASSESSEE DID NOT EXPLAIN THE ENTRIES EXISTING I N THE BANK ACCOUNT OF THE PERSON FROM WHOM HE HAS RECEIVED THE LOAN AND I N ABSENCE OF SATISFACTORY EVIDENCE AO ADDED THE SAID AMOUNT TO T HE INCOME OF THE ASSESSEE. BEFORE CIT(A) IT WAS SUBMITTED THAT COPY OF BANK ACCOUNT FILED WITH THE AO WILL REVEAL THAT SAID SH. BAL KIS HAN SHARMA WAS HAVING SUFFICIENT FUNDS IN HIS PASS BOOK FOR QUITE A LONG TIME BEFORE TRANSACTION 3 ITA NO. 2196/DEL/2009 OF LOAN. IT WAS SUBMITTED THAT AO WAS HAVING THE B ENEFIT OF COPY OF BANK STATEMENT ONLY FOR THE PERIOD OF OCTOBER, 2004, WHE REIN A DEPOSIT OF RS. 5 LAKH WAS SHOWN ON 19 TH OCTOBER, 2004 AND WITHDRAWAL OF RS. 4 LAKH ON 28 TH OCTOBER, 2004 AND ANOTHER RS. 1 LAKH ON 21 ST OCTOBER, 2004. LD. CIT REQUIRED THE ASSESSEE TO FILE FULL COPY OF BANK STATEMENT ALONG WITH NARRATION OF THE ENTRIES AND IN THIS MANNER THE ADD ITION HAS BEEN SUSTAINED BY LD. CIT(A). 3. AFTER NARRATING THE FACTS, IT WAS SUBMITTED BY L D. AR THAT AN AFFIDAVIT FROM SAID SH. BAL KISHAN SHARMA AND COPY OF BANK CERTIFICATE SOUGHT TO BE FILED AS ON ADDITIONAL EVIDENCES BEFOR E CIT(A) VIDE COPY OF LETTER SUBMITTED AT PAGE 25 OF THE PAPER BOOK IN WH ICH HE HAD STATED THAT HE HAD GIVEN A LOAN OF RS. 5 LAKH TO THE ASSESSEE A ND HE IS HPS OFFICER AND THE SAID AMOUNT WAS GIVEN OUT HIS ACCUMULATIVE SAVINGS AND THE SAID AMOUNT OF RS. 5 LAKH WAS REPAID BY THE ASSESSE E TO HIM ON 4 TH APRIL, 2005. HE SUBMITTED THAT WITHOUT EXAMINING THE VERA CITY OF THE SAID AFFIDAVIT ADDITION HAS WRONGLY BEEN UPHELD BY CIT(A ) AS HE DID NOT ADMIT SUCH ADDITIONAL EVIDENCE. HE ALSO DREW OUR ATTENTI ON TOWARDS COPY OF BANK ACCOUNT OF SH. BAL KISHAN SHARMA WHICH IS PLAC ED AT PAGES 19 TO 21 OF THE PAPER BOOK AND IT WAS SHOWN THAT SAID SH. SHARMA WAS AT ONE TIME HAVING THE BALANCE OF RS. 43 LAKH APPROXIMATEL Y IN HIS BANK ACCOUNT. THUS, LD. AR SUBMITTED THAT ALL THESE EVI DENCES SHOULD HAVE BEEN APPRECIATED BY THE CIT(A) AND, THEREFORE, THE ADDITION HAS WRONGLY BEEN SUSTAINED BY HIM. 4 ITA NO. 2196/DEL/2009 4. ON THE OTHER HAND, RELYING ON THE ORDER OF AO AN D CIT(A) LD. DR PLEADED THAT ORDER OF CIT(A) SHOULD BE UPHELD. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. FROM THE COPY OF BANK A CCOUNT IT APPEARS THAT SAID SH. BAL KISHAN SHARMA IS A MAN OF MEANS. AFFIDAVIT FILED BY THE CREDITOR CLEARLY STATED THAT THE SAID AMOUNT WA S ADVANCED BY HIM TO THE ASSESSEE. HOWEVER, ALL THESE DOCUMENTS HAVE NO T BEEN VERIFIED BY THE AO OR CIT(A) AND ADDITION HAS BEEN SUSTAINED WI THOUT EXAMINING THESE DOCUMENTS. THEREFORE, WE ARE OF THE OPINION THAT THIS IS A FIT CASE, WHERE WE CAN RESTORE THIS ISSUE TO THE FILE OF AO W ITH A DIRECTION TO DECIDE THIS ISSUE FRESH AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. WE DIRECT ACCORDINGLY. TH ESE GROUNDS FOR STATISTICAL PURPOSES ARE TREATED TO BE ALLOWED. 6. APROPOS GROUND NO. 6; THE ASSESSEE IS AN LPG DEA LER/DISTRIBUTOR. HE CLAIMED DELIVERY EXPENSES AT RS. 1,70,790/- IN T HE ABSENCE OF PROPER JUSTIFICATION AND COPY OF ACCOUNT OF EXPENSES,1/5 TH OF THE SAID EXPENDITURE I.E. A SUM OF RS. 34,158/- WAS DISALLOW ED. LD. CIT(A) HAS RESTRICTED THE DISALLOWANCE AT RS. 10,000/-. THE A SSESSEE IS STILL AGGRIEVED, HENCE IN APPEAL. 7. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. I N ABSENCE OF DETAILS, PART ADDITION OF RS. 10,000/- HAS BEEN UPH ELD BY LD. CIT(A) AND DETAILS STILL ARE NOT AVAILABLE, THEREFORE, WE DECL INE TO INTERFERE IN THE PART 5 ITA NO. 2196/DEL/2009 DISALLOWANCE SUSTAINED BY LD. CIT(A). THIS GROUND OF THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5.3.2010 (K.D. RANJAN) ACCOUNTANT MEMBER (I.P. BANSAL) JUDICIAL MEMBER DATED: 5.3.2010 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER DEPUTY REGISTRAR