ITO, New Delhi V. M/s. Kay Bee Electricals, New Delhi

ITA 2260/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97720 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 27-10-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 15-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-2, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2260/DEL/2014 ASSESSMENT YEAR: 2002-03 INCOME TAX OFFICER, VS. M/S KAY BEE ELECTRICALS , WARD-26(2), 20/127, VIKRAM VIHAR, ROOM NO. 1808, LAJPAT NAGAR E-2 BLOCK, CIVIC CENTRE, NEW DELHI 110 024 NEW DELHI ( PAN: AAAFK2386H) (APPELLANT) (RESPONDENT) APPELLANT BY : SH. P. DAM KANUNJNA, SR . DR RESPONDENT BY : NONE DATE OF H DATE OF H DATE OF H DATE OF HEARING EARING EARING EARING : : : : 27 2727 27- -- -10 1010 10- -- -2015 2015 2015 2015 DATE OF ORDER DATE OF ORDER DATE OF ORDER DATE OF ORDER : :: : 27 2727 27- -- -10 1010 10- -- -2015 2015 2015 2015 ORDER THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER DATED 17/1/2014 OF LD. CIT(A)-XVII, NEW DELHI RELEVANT FO R THE ASSESSMENT YEAR 2002-03. 2. THE GROUNDS RAISED IN THE APPEAL OF THE DEPARTME NT READ AS UNDER: 1. DELETING THE ADDITION OF RS. 12,13,156/- MADE B Y AO ON ACCOUNT OF PURCHASE WHICH REMAINED UNEXPLAINED. 2. NOT GETTING THE FACTS CONFRONTED BY THE AO BY PR OVING OPPORTUINTY TO THE AO UNDER RULE 46A BEFORE ADMITTING THE SUBMI SSION/ DOCUMENTS OF THE ASSESSEE. 3.THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR A MEND ANY GROUND OF APPEAL. 3. THE FACTS NARRATED BY THE REVENUE AUTHORITES ARE NOT DISPUTED BY THE LD. DR, HENCE, THE SAME ARE NOT REPEATED HERE FOR T HE SAKE OF CONVEINENCE. 4. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED ITA NO. 2260/DEL/2014 (ITO V. M/S KAY BEE ELECTRIC ALS) 2 REPRESENTATIVE APPEARED TO PROSECUTE THE MATTER IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE P RESENT APPEAL, I AM OF THE VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM DECIDING TH E PRESENT APPEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 5. LD. DR SUPPORTED THE ORDERS OF THE AO. 6. I FIND THAT THE LD. CIT(A) VIDE HIS ORDER DATED 17.1.2014 HAS ALLOWED THE APPEAL OF THE ASSESSEE BY HOLDING AS UNDER VIDE PARA NO. 5 TO 5.8 FROM PAGE NO. 5 TO 7:- 5. GROUND NO. 1, 2, 3 & 4 ARE IN RESPECT OF ADDITI ON OF RS. 12,13,156/- ON ACCOUNT OF UNVERIFIED PURCHASES. TH E APPELLANT HAS STATED THAT ALL BOOKS OF ACCOUNT, BILLS AND PUR CHASES VOUCHERS WERE GIVEN BUT STILL THE AO GAVE A FINDING THAT PURCHSES OF RS. 12,13,156/- WERE UNVERIFIED. 5.1 THE FACTS OF THE CASE ARE THAT THE ORIGINAL ASS ESSMENT U/S. 143(3) WAS MADE ON AN INCOME OF RS. 14,75,524/- SUB SEQUENT TO SURVEY. THE ADDITIONS WERE ON ACCOUNT OF PURCH ASES AMOUNTING TO 12,13,156/- TO VERIFY THE GENUINENESS OF THESE PURCHASES OF RS. 14,608/- AND OUT OF EXPENSES OF RS . 1,75,000/-. THE LD. CIT(A) DELETED ADDITION OF RS . 14,608/-. THE HONBLE ITAT DELETED THE ADDITION OF RS. 1,75,0 00/-, BUT RESTORED THE MATTER OF PURCHASES OF RS. 12,13,156/- TO THE FILE OF THE AO FOR FRESH EXAMINATION. 5.2. THE AO IN THE ORDER STATED THAT PURCHASE REGIS TER WAS PRODUCED AND EXAMINED PARTLY. THE OTHER BOOKS OF AC COUNT WERE NOT PRODUCED. THE AO AGAIN ADDED BACK THE AMOU NT SAYING PURCHASES REMAINED UNVERIFIED. ITA NO. 2260/DEL/2014 (ITO V. M/S KAY BEE ELECTRIC ALS) 3 5.3. THE DIRECTIONS OF THE HON'BLE ITA T WERE THAT T HE PURCHASES SHALL BE VERIFIED BY HIM AND THEN A CORRECT CONCLUS ION BE DRAWN AS PER LAW. 5.4. IT WAS FELT BY ME THAT THE AO IN THE ASSESSMEN T ORDER HAD NOT COMPLIED WITH THE DIRECTIONS OF THE HON'BLE ITAT . THE AO CALLED FOR BOOKS OF ACCOUNTS VIDE ORDER SHEET ENTRY DATED 23.12.2009. THE AO HAS STATED THAT THE APPELLANT AT TENDED ON 29.12.2009 ON WHICH DATE THE PURCHASE REGISTER WAS EXAMINED PARTLY. THE AO STATED THAT NO OTHER DOCUMENTS WERE PRODUCED. THERE IS NO OTHER HEARING AFTER THIS DATE. THE AO H AS NOT MADE ANY ATTEMPT TO MAKE ANY OTHER INQUIRY. NO FURTHER O PPORTUNITY WAS GIVEN TO THE APPELLANT TO PRODUCE THE BOOKS OF ACCOUNTS AND DOCUMENTS. NO INQUIRY WAS CONDUCTED, FROM THE P ARTIES, FROM WHOM PURCHASES HAD BEEN MADE. 5.5. I, THEREFORE, GAVE ANOTHER OPPORTUNITY TO THE AO TO MAKE INQUIRIES. A LETTER WAS WRITTEN TO THE AO AS UNDER. - 'DURING THE COURSE OF APPELLATE PROCEEDINGS THE AR OF THE APPELLANT HAS FILED SUBMISSION ON 30.03.2013. IN VI EW OF THE ABOVE, YOU ARE HEREBY DIRECTED TO VERIFY THE BO OKS OF ACCOUNTS AND OTHER DETAILS AS DIRECTED BY THE ITA T AND TO SPECIFIC CONCLUSION WHETHER PURCHASES ARE GENUINE O R NOT. FURTHER, YOU MAY ALSO CALL FOR ALL BOOKS OF ACCOUNT S AND OTHER DOCUMENTS AND GIVE YOUR COMMENTS ON THE MERIT S OF THE CASE.' 5.6. THE AO GAVE A REPORT AS UNDER:- 'KINDLY REFER TO THE ABOVE. AS PER YOUR DIRECTION LETTER HAS BEEN ISSUED TO ASSESSEE FOR FURNISHING COMPLETE DETAILS IN RESPECT OF PURCH ASES AMOUNTING TO RS. 12,13,156/- TO VERIFY THE GENUINEN ESS OF THESE PURCHASES VIDE LETTER DATED 1.8.2013. IN RESPONSE TO THIS THE ITA NO. 2260/DEL/2014 (ITO V. M/S KAY BEE ELECTRIC ALS) 4 ASSESSEE FIRM HAD FURNISHED THE LIST OF PARTIES FR OM WHOM THE ALLEGED PURCHASESS WERE MADE. LETTER HAS ALSO BEEN ISSUED TO THE PARTIES TO FURNISH THE DETAILS AS UNDER:- 1. COPY OF LEDGER ACCOUNT OF M/S KAYBEE ELECTRICALS IN THE BOOKS OF PARTIES. 2. COPIES OF BILLS/ VOUCHERS RAISED AGAINST PURCHA SES UNDER CONSIDERATION. 3. DOCUMENTARY EVIDENCE IN RESPECT OF PAYMENTS MADE BY MIS. KAYBEE ELECTRICALS AGAINST PURCHASES. 4. COPY OF FORM C FOR THE RELEVANT PERIOD. 5. COPIES OF DELIVERY CHALLAN. 6. DETAILS IN RESPECT OF DEBIT AMOUNT OUTSTANDING I N THEIR BOOKS OF ACCOUNT AGAINST M/S. KAYBEE ELECTRICALS. THE PARTIES HAVE NOT FURNISHED THE COMPLETE DETAILS . IN VIEW OF THE ABOVE THE PURCHASE AMOUNT OF RS. 12,13,156/- RE MAINED UNVERIFIED. AS CAN BE SEEN, AGAIN THE AO HAS NOT MADE PROPER IN QUIRIES TO VERIFY THE GENUINENESS OF THE PURCHASES. 5.7 BEFORE ME IN APPELLATE PROCEEDINGS THE APPELLA NT HAS PUT ON RECORD CONFIRMATION FROM THE SELLERS, COPIES OF BILLS, SALES TAX ORDER FORM OF THE RELEVANT A.Y. ETC. THE ADDITIONAL EVIDENCE IS ADMITTED UNDER RULE 46A. 5.7.IN MY VIEW THE PURCHASES ARE SUPPORTED BY EVIDE NCE FILED. THE CONTENTIIONS OF THE APPELLANT ARE ACCEPTED. TH E ADDITION UNVERIFIED PURCHASES IS DELETED ON ACCOUNT OF RS. 1 2,13,156/-. THE GROUNDS OF APPEAL ARE RULED IN FAVOUR OF THE AP PELLANT. 7. KEEPING IN VIEW OF THE FACTS AS WELL AS THE FIN DINGS GIVEN BY THE LD. CIT(A), I AM OF THE CONSIDERED VIEW THAT LD. CI T(A) HAS ADMITTED THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE, WIT HOUT GIVING OPPORTUINTY TO THE ASSESSE FOR VERIFICATION WHICH I S CONTRARY TO THE ITA NO. 2260/DEL/2014 (ITO V. M/S KAY BEE ELECTRIC ALS) 5 JUDGMENT OF THE HONBLE HIGH COURT OF DELHI DELIVE RED IN THE CASE OF CIT VS. MANISH BUILDWELL 245 CTR 397 WHEREIN IT WAS MANDATED THAT CIT(A) REQUIRED TO AFFORD TWO OPPORTUNITIES TO THE A.O. I.E. ONE AT THE TIME OF ACCEPTANCE OF ADDITIONAL EVIDENCE BY INVITI NG HIS OBJECTIONS FOR ACCEPTING THE ADDITIONAL EVIDENCE AND THE SECOND, A FTER CIT(A) ADMITS THE SAME FOR HIS COMMENTS ON MERITS OF SUCH ADDITIONAL EVIDENCE. THEREFORE, IN VIEW OF THE HONBLE JURISD ICATIONAL HIGH COURT DECISION, LD. CIT(A) IN THE PRESENT CASE HAS ADMITTED THE ADDITIONAL EVIDENCES CONTRARY TO THE PROVISIONS OF RULE 46A. IN THE INTEREST OF JUSTICE, I AM REMITTING BACK THE ISSUE IN DISPUTE TO THE FILE FO THE LD. CIT(A) WITH THE DIRECTIONS TO ALLOW THE OPP ORTUINTY TO THE ASSESSING OFFICER TO MAKE AN ENQUIRY ON THE ADDITIO NAL EVIDENCES FILED BY THE ASSESSEE AND DECIDE THE THE SAME AFTER RECEIVING THE REPORT FROM THE ASSESSING OFFICER. NEEDLESS TO ADD THAT BOTH THE PARTIES MAY BE GIVEN FULL OPPORTUNITY OF BEING HEAR D. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/10/2015. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED: 27/10/2015 *SR BHATNAGAR* COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR