M/s. Anil Steels (P) Ltd., New Delhi V. ITO, New Delhi

ITA 2360/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90980 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: ATUL AGGARWAL
• Keywords: Opportunity of being heard; Agreed addition
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SH. N. K. SAINI , AM AND SH. A. T. VARKEY , JM ITA NO. 2360 /DEL/2013 : ASSTT. YEAR : 2009 - 10 M/S ANIL STEELS (P) LTD., KD - 87, PITAMPURA, NEW DELHI - 110034 VS ITO, WARD 1(4), C. R. BUILDING, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A ADCA2533J ASSESSEE BY : SH. ATUL AGGARWAL, CA REVENUE BY : SH . B. R. R. KUMAR , SR. DR DATE OF HEARIN G : 20 . 04 . 2015 DATE O F PRONOUNCEMENT : 24 .04 .2015 ORDER PER N.K . SAINI , A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 2 8. 02.2013 OF THE L D. CIT(A) - IV , NEW DELHI . 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THE CONTENTION OF THE CIT THAT ASSESSEE HAS NOT REBUTTED, AGREED ADDITION IS WRONG. 2. THE PREFERRING OF APPEAL AGAINST THE ORDER OF AO AND OUR ARGUMENT THAT AGREED ADDITION ON ADHOC BASIS IS UNLAWFUL ITSELF SUGGESTS THAT THE ASSESSEE IS AGGRIEVED WITH THE CONTENTIONS OF THE AO AND THE ASSESSEE HAD NEVER AGREED TO THE ADDITION ON ADHOC BASIS. ITA NO.2360 /DE L/201 3 ANIL STEELS (P) LTD. 2 3. THE DISALLOWANCE OF RS. 8,32,665/ - ON ACCOUNT OF EXPENSES UNDER VARIOUS HEADS ON ADHOC BASIS WRONG. 4. THE ADDITION OF RS. 75,336/ - IN RESPECT OF PF & ESI AS PE R REVISED ORDER IS WRONG ON FACT. 5. THE LD. CIT HAS ERRED IN REJECTING FRESH GROUNDS OF APPEAL ON ACCOUNT OF DISALLOWANCE OF ESI & PF, WHICH IS THE RIGHT OF THE ASSESSEE AS PER LAW. 6. THE ASSESSEE RESERVES THE RIGHT TO RAISE ADDITIONAL GROUNDS LATER ON . IT IS PRAYED THAT THE ADDITIONS MAY KINDLY BE DELETED. 3. FROM THE ABOVE GROUND S IT IS GATHERED THAT THE GRIEVANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF DISALLOWANCE OF RS. 8,32,665/ - MADE BY THE AO ON ADHOC BASIS OUT OF THE EXPENSES UNDER VA RIOUS HEADS AND THE ADDITION OF RS. 75,336/ - IN RESPECT OF PROVISIONS OF PF & ESI FUND. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTICED THAT THERE WERE SOME DIFFERENCES IN THE BILLS AND VOUCHERS AND THE EN TRIES REFLECTED IN THE BOOKS OF ACCOUNTS, ALTHOUGH THERE WAS NO DIFFERENCE IN THE TOTAL AMOUNT. THE AO MENTIONED THAT THE ASSESSEE AGREED FOR PART DISALLOWANCE OF THE EXPENSES. HE, ITA NO.2360 /DE L/201 3 ANIL STEELS (P) LTD. 3 ACCORDINGLY DISALLOWED 20% OF THE TOTAL EXPENSES OF RS. 41,63,277/ - WHICH C AME TO RS. 8,32,665/ - . THE AO ALSO MADE AN ADDITION OF RS. 75,336/ - ON ACCOUNT OF LATE PAYMENT OF PF & ESI BY PASSING THE ORDER U/S 154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 5. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CONTESTED THE DISALLOWANCE MADE BY THE AO AND ALSO RAISED ADDITIONAL GROUNDS IN RESPECT OF ADDITION MADE BY PASSING THE ORDER U/S 154 OF THE ACT, VIDE ADDITIONAL GROUND. THE LD. CIT(A) CONFIRMED THE DISALLOWANCE BY OBSERVING THAT IT WAS MADE AS AGREED BY THE ASSESSEE. HE ALSO CONFIRMED THE ADDITION OF RS. 75,336/ - BY OBSER VING THAT THE ADDITIONAL GROUND DID NOT ARISE OUT OF THE ASSESSMENT ORDER AND THE LAW PROVIDES FOR SEPARATE APPEAL AGAINST THE ORDER U/S 154 OF THE ACT. 6 . BEING AGGRIEVED THE ASSESS EE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE DISALLOWANCE ON THIS BASIS THAT THE ASSESSEE AGREED FOR THE SAME. HE DREW OUR ATTENTION TOWARDS PAGE NO. 3 OF THE ASSESSEE S PAPER BOOK WHIC H IS THE COPY OF ORDER SHEET ENTRIES AND SUBMITTED THAT ITA NO.2360 /DE L/201 3 ANIL STEELS (P) LTD. 4 THE ASSESSEE DID NOT AGREE BEFORE THE AO FOR MAKING THE DISALLOWANCE OUT OF THE EXPENSES. IT WAS FURTHER STATED THAT THE ASSESSEE FURNISHED THE VARIOUS DETAILS WHICH WERE ASKED BY THE AO, SO THERE WAS NO QUESTION FOR AGREED ADDITION. IT WAS ALSO SUBMITTED THAT THE PF & ESI WAS DEPOSITED BEFORE FILING THE REGULAR RETURN OF INCOME SO NO ADDITION WAS CALLED FOR. 7 . IN HIS RIVAL SUBMISSION THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, I T IS NOTICED THAT THE LD. CIT(A) SUSTAINED THE DISALLOWANCE MADE BY THE AO OUT OF THE EXPENSES ON THIS BASIS THAT THE ASSESSEE AGREED FOR THE ADDITION. HOWEVER, THIS FACT IS NOT COMING OUT OF THE ORDER SHEET ENTRIES OF THE AO (COPY OF WHICH IS PLACED AT PAGE NO. 3 OF THE ASSESSEE S COMPILATION). THEREFORE, IT IS NOT CLEAR WHAT WAS THE BASIS OF MAKING THE DISALLOW ANCE AND THE LD. CIT(A) HAS ALSO NOT GIVEN ANY COGENT REASON WHILE CONFIRMING THE DISALLOWANCE MADE BY THE AO. FOR THE OTHER ADDITION RELATING TO LATE PAYMENT OF PF & ESI THE ITA NO.2360 /DE L/201 3 ANIL STEELS (P) LTD. 5 FACTS ARE NOT CLEAR AS TO WHETHER THE ASSESSEE DEPOSITED THE AMOUNT BEFORE FILING THE RETURN OR NOT . WE, THEREFORE, IN ABSENCE OF CLEAR FACT S DEEM IT APPROPRIATE TO REMAND THIS CASE BACK TO THE FILE OF THE AO TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . I N THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 24 /04 / 2015) . SD/ - SD/ - (A. T. VARKEY ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 24 /04 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR