ITO, New Delhi V. Sh. Naveen Kapoor, New Delhi

ITA 2369/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61788 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: E NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI C.M.GARG, JUDICIAL MEMBER ITA NO: 2369/DEL/2012 A.Y. : - 2008-09 ITO, WARD 29(2) VS. SH.NAVEEN KAPOOR NEW DELHI PROP. M/S CLASSIC ENTERPRISE S 972, CHHOTA CHIPPIWARA CHAWRI BAZAR DELHI 110 006 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S.NEGI , SR.D.R. RESPONDENT BY : SHRI RAJIV JAIN, C.A. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XXV, NEW DELHI DT.30.3.2012 PERTAINING TO ASSESSMENT YEAR 2008-2009 ON THE FOLL OWING GROUND. 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)- XXV, NEW DELHI HAS ERRED IN DELETING THE ADDITION O F RS.36,30,981/- OUT OF TOTAL ADDITION OF RS.38,08,68 0/- IGNORING THE FACTS BROUGHT BY AO IN REMAND REPORT. 2. THE FACTS ARE BROUGHT OUT AT PARA 4.1 OF THE COM MISSIONER OF INCOME TAX (APPEALS)S ORDER WHICH IS EXTRACTED FOR READY REFERENCE. THE FACTS EMANATING FROM THE ORDER OF THE AO AND T HE SUBMISSIONS OF THE ASSESSEE IS THAT THE ASSESSEE IS THE PROPRIETOR OF M/S CLASSIC ENTERPRISES AND IS ENGAGED IN THE BU SINESS OF TRADING AND INSULATION OF AIR CONDITIONERS AND IS T HE AUTHORIZED DEALER OF BLUE STAR LTD. THE ASSESSEE HAS DECLARED THE TOTAL I TA NO. 2369/DEL/2012 PA GE 2 OF 4 ASSESSMENT YEAR 2008-09 SH.NAVEEN KAPOOR, PROP. M/S CLASSIC ENTERPRISES NEW DELHI TURNOVER OF RS.67,52,194/-, THE NET PROFIT OF RS.4, 14,681/- AND HAS FILED THE RETURN INCOME OF RS.2,43,755/-. THE AO H AS MADE THE ADDITION OF RS.38,08,680/- UNDER THE HEAD SUNDRY CR EDITORS OF RS.27,74,036/- AND UNDER THE HEAD ADVANCE FROM CUST OMERS OF RS.10,34,664/- ON THE GROUND THAT THE NON-SUBMISSIO N OF DETAILS OR CONFIRMATIONS BY THE ASSESSEE. 2. THE ASSESSEE CARRIED THE MATTER IN APPEAL AND PL EADED THAT THE A.O. DID NOT GIVE SUFFICIENT OPPORTUNITY TO THE ASS ESSEE TO SUBMIT DETAILS. THE ASSESSEE HAD SUBMITTED THAT ALL THE DETAILS AND CONFIRMATIONS OF THE PARTIES BEFORE THE COMMISSIONER OF INCOME TAX (APPE ALS), WHO IN TURN ;CALLED FOR THE REMAND REPORT FROM THE A.O. AFTER OBTAINING THE REMAND REPORT HE DELETED THE ADDITION FOR THE REASONS GIVE N ;AT PARA 4.3 TO 4.7 OF HIS ORDER. AGGRIEVED THE REVENUE IS IN APPEAL BEFO RE US. 3. WE HAVE HEARD MR.R.S.NEGI, LD.D.R. AND SHRI RAJE EV JAIN LD.COUNSEL FOR THE ASSESSEE. THIS IS THE FIRST YEA R OF BUSINESS OF THE ASSESSEE. THE ASSESSEE DECLARED TURNOVER OF RS.67. 52 LAKHS, NET PROFIT WAS RS.4.14 LAKHS. THE A.O. AT PARA 2 OF HIS ORDER ACCEPTED THE TRADING RESULTS. HE WANTED THE ASSESSEE TO PRODUCE LIST OF CREDITORS AS WELL AS THE LIST OF ADVANCES FROM CUSTOMERS. THE ASSESSEE PRODUCED CONFIRMATION LETTERS AND OTHER DETAILS PERTAINING T O CREDITORS AND CUSTOMERS FROM WHOM ADVANCES WERE RECEIVED, BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOM E TAX (APPEALS) CALLED FOR THE REMAND REPORT. THE A.O. HAS NOT CON DUCTED ANY ENQUIRY OR FOUND ANY ADVERSE MATERIAL, TO CONTRADICT THE EVIDE NCE PRODUCED BY THE ASSESSEE. HE SIMPLY MADE CERTAIN ROUGH NOTES IN A TABULAR ANNEXURE I TA NO. 2369/DEL/2012 PA GE 3 OF 4 ASSESSMENT YEAR 2008-09 SH.NAVEEN KAPOOR, PROP. M/S CLASSIC ENTERPRISES NEW DELHI AND BASED ON THIS ROUGH NOTES DREW CERTAIN INFERENC ES. THE ENTIRE EXERCISE APPEARS TO BE VERY CASUAL IN NATURE AND TH E CONCLUSIONS ARE SURMISES. IN OUR VIEW THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROOF THAT LAY ON IT IN THIS ISSUE. THE A.O. HAS NOT CO NTROVERTED THESE EVIDENCES. UNDER THE CIRCUMSTANCES WE UPHOLD FOLLO WING FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS). 4.3. I HAVE CONSIDERED THE ADDITION/ORDER OF THE A O, REMAND REPORT OF THE AO AND THE SUBMISSIONS OF THE ASSESSE E AND I FIND CONSIDERABLE MERIT IN THE SUBMISSION OF THE AS SESSEE THAT THE AO IS NOT JUSTIFIED TO MAKE THE ADHOC ADDITIONS OF THE ENTIRE SUNDRY CREDITORS OF RS.27,74,036/- AND THE E NTIRE ADVANCES FROM THE CUSTOMERS OF RS.10,34,644/-. THE ASSESSEE HAD SUBMITTED THE DETAILS AND CONFIRMATION S DURING THE COURSE OF APPELLATE PROCEEDINGS AND THE SAME WE RE SENT TO THE AO FOR A REMAND REPORT VIDE THE LETTER DT. 8.9. 2011 AND THE REMAND REPORT DT. 16.3.2012 FORWARDED BY THE JCIT, R-29, NEW DELHI VIDE LETTER DT. 16.3.12 HAS BEEN RECEIVED AFTER SUCH A LONG TIME FROM THE AO AND A COPY OF THE REMAND RE PORT IS ENCLOSED AND MARKED AS ANNEXURE-A. A PERUSAL OF TH E REMAND REPORT SHOWS THAT THE AO HAS EXAMINED ONLY S OME OF THE SUNDRY CREDITORS AND ADVANCES FROM CUSTOMERS ON SAMPLE BASIS AND HAS NOTED THAT THEY ARE VERIFIED AND IN T HE CASE OF OTHERS THE AO HAS LEFT THEM UNVERIFIED ALTHOUGH THE DETAILS WERE SUBMITTED TO THE AO BY THE ASSESSEE. 4. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2012. SD/- SD/- (C.M.GARG) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 25 TH JULY, 2012 *MANGA I TA NO. 2369/DEL/2012 PA GE 4 OF 4 ASSESSMENT YEAR 2008-09 SH.NAVEEN KAPOOR, PROP. M/S CLASSIC ENTERPRISES NEW DELHI COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR // C O P Y // 1. DATE OF DICTATION: 2. DRAFT PLACED BEFORE THE AUTHOR ON: 3. DRAFT PRONOUNCED AND PLACED BEFORE SECOND MEMBER ON : 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: 5. APPROVED DRAFT CAME TO SR.P.S. ON: 6. DATE OF PRONOUNCEMENT : 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON :