Shri Harsh Sidana, New Delhi V. ITO, New Delhi

ITA 2590/DEL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6627 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 28-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 09-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E, NEW DELHI BEFORE SHRI L. P. SAHU, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO. 2589/DEL/2016 AND I.T.A. NO. 2590/DEL/2016 ( ASSESSMENT YEAR 2010-11 ) ITO, WARD 36(1), NEW DELHI. (APPELLANT) VERSUS HARSH SIDANA 11, EDWARK LINE, KINGSWAY CAMP, NEW DELHI. GIR / PAN : AMIPS2426G . (RESPONDENT) APPELLANT BY : MR. RAJESH JAIN, CA RESPONDENT BY : MR. RAJESH KUMAR, SR. DR. DATE OF HEARING : 28.11.016 DATE OF PRONOUNCEMENT: 08.12.2016 ORDER PER BEENA A. PILLAI, JM: 1. THE PRESENT QUANTUM AND PENALTY APPEAL HAS BEEN FILED BY ASSESSEE AGAINST ORDER DATED 31.03.2016 PASSED BY LD.CIT(A)-32 FOR ASSESSMENT YEAR 2010- 11 ON THE FOLLOWING GROUNDS OF APPEAL: 2 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 2. ITA 2590/DEL/2016 (QUANTUM APPEAL) 1. THAT THE LEARNED C.I.T.(A) ERRED IN UPHOLDING TH E ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER MAKING ADDITION OF RS.42,54,422/- IN THE RETURNED INCOME OF RS. 18,80,5741- FILED BY THE APPELLANT, WITHOUT ADJUDICATING THE SUBMISSIONS OF THE APPELLA NT JUDICIALLY AND WITHOUT GIVING ADEQUATE OPPORTUNITY TO HIM. 2. THAT THE LEARNED C.I.T(A) ERRED IN NOT CONDONING THE DELAY IN FILING APPEAL, WITHOUT PURSUING THE FACTS BROUGHT ON RECORD BY THE APPELLANT ON MERIT. 3. THAT THE LEARNED C.I.T.(A) ERRED IN UPHOLDING ADDITION OF RS.42,54,422/- ON MERIT WITHOUT UNDERSTANDING THE FACTS AS A PRUDENT APPELLATE COURT, RATHER HIS CONDUCT IN PASSING APPELLATE ORDE R IN HASTE WITHOUT REMAND REPORT OF THE ASSESSING OFFICER IS TOTALLY ARBITRARY, ILLEGAL. 4. THAT THE LEARNED C.I.T.(A) DID NOT APPRECIATE T HAT THE FORM 26AS IS NOT SACROSANCT OF ITS CONTENTS AND TRANSACTIONS REFLECTED THEREIN ARE NOT CONCLUSIVE A ND THE ASSESSMENT OF INCOME IS TO BE DONE AS PER LAW AND METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. 5. THAT THE LEARNED C.I.T.(A) ERRED IS NOT ADMITTIN G ADDITIONAL EVIDENCE UNDER RULE 46A, TAKEN OR RECORD WITH SUBMISSIONS ON 08.02.2016 WITHOUT GIVING OPPORTUNITY TO THE APPELLANT. THE ORDER PASSED BY C.I.T.(A) IS TOTALLY DEVOID OF MERIT AND THE SAME I S LIABLE TO BE QUASHED. ENTIRE ORDER IS FULL OF CONTRADICTIONS. THE READING OF THE LAST PARA OF THE 3 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 ORDER SHOWS THE CONTRADICTION AND ILLEGALITY APPARENT. 3. ITA 2589/DEL/2016 (PENALTY APPEAL) 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED CIT (APPEALS) UPHOLDING THE PENALTY IMPOSED BY THE LD. ASSESSING OFFICER, I S TOTALLY ILLEGAL ON THE FACTS OF THE CASE AND AS PER LAW. 2. THAT THE LEARNED CIT (APPEAL) ERRED IN DISMISSI NG ALL THE GROUNDS OF APPEAL RAISED BY THE APPELLANT WITHOUT GIVING OPPORTUNITY TO THE APPELLANT. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE PENALTY IMPOSED U/S 271(1)(C) OF THE ACT AMOUNTING TO RS.12,73,275/- BY THE ASSESSING OFFICER. THE LD. CIT(A) DID NOT HEAR THE APPELLANT AS QUANTUM APPEAL WAS PENDING BEFORE HIM & INFORMED THE COUNSEL THAT THE PENALTY APPEAL SHALL BE TAKEN UP ON CONCLUSION OF QUANTUM APPEAL. HOWEVER ORDER OF PENALTY APPEAL WAS PASSED SIMULTANEOUSLY WITH QUANTUM APPEAL WITHOUT HEARING THE APPELLANT. 4. THAT THE ORDERS OF THE ASSESSING OFFICER & CIT ( A) ARE NOT BASED ON THE FACTS OF THE CASE & AS PER LAW AND HENCE ADDITIONS SUSTAINED BY THE CIT (A) ARE TOTALLY ILLEGAL. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND O R ALTER ANY OF THE GROUNDS OF THE APPEAL. 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER: 5. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE YEA R UNDER CONSIDERATION ON 14/10/2010 DECLARING GROSS 4 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 TOTAL INCOME OF RS.18,80,574/-. THE RETURN WAS PROCESSED UNDER SECTION 143 (1) OF THE ACT AND THE CASE WAS SELECTED FOR SCRUTINY. ACCORDINGLY NOTICE UNDER SECTION 143 (2) OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. ASSESSEES REPRESENTATIVE APPEARED BEFORE LD. AO AND SUBMITTED DOCUMENTS AND INFORMATION CALLED FOR. LD. AO OBSERVED THAT ASSESSEE IS A RECOVERY AGENT FOR VARIOUS BANKS AND WORKS UNDER THE PROPRIETARY CONCERN NAMELY, M/S MONEY MULTIPLIER. DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAD DECLARED INCOME FROM BUSINESS UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION, AMOUNTING TO RS.18,80,574/- AGAINST GROSS RECEIPTS OF RS.2,87,63,569/-. OUT OF THIS ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80 C OF THE ACT, AMOUNTING TO RS. 1 LAC AGAINST INSURANC E PREMIUM, LEAVING THEREBY TAXABLE INCOME OF RS.17,80,574/-. 6. LD. AO OBSERVED THAT ISSUE REVOLVES AROUND THE DIFFERENCE IN RECEIPTS AS PER THE INCOME TAX RETURN S AND 26 A-S. ASSESSEE WAS ASKED TO FILE PARTY WISE DETAILS AND ALSO TO EXPLAIN THE VARIATION. IT WAS SUBMITTED BY ASSESSEE THAT THE TOTAL RECEIPTS AS PE R 26 A-S HAS BEEN REFLECTED IN THE AUDITED BALANCE SHEET AND THE SAME HAS BEEN CONSIDERED IN THE 5 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 BOOKS OF ACCOUNTS. IT WAS FURTHER SUBMITTED BY ASSESSEE THAT WHILE FILING INCOME TAX RETURNS, RECE IPT OF RS.2,87,63,596/-WAS ERRONEOUSLY AND TYPOGRAPHICALLY INSERTED WITH THE UNDERSTANDING THAT SALARY PAID TO EMPLOYEES AS AGAINST ACTUAL SALARY PAID AMOUNTING TO RS.2,59,48,786.47/-. IT WAS SUBMITTED THAT WHILE FILING RETURN CLERICAL MISTAKE IN FEEDING OF FIGURES CREPT IN, WHICH ACTUA LLY DO NOT HAVE ANY EFFECT ON THE EITHER SIDE OF PROFITABILITY. THE ASSESSEE HAS ALSO SUBMITTED BEFO RE THE LD. AO THAT FIGURES COULD BE VERIFIED FROM THE BANK STATEMENTS, SALARY SHEET, SALARY VOUCHERS AND COPY OF LEDGER ACCOUNTS MAINTAINED BY ASSESSEE. 7. THE EXPLANATION TENDERED BY ASSESSEE WAS REJECTED BY LD. AO AND AN ADDITION OF RS. 41,20, 632/- WAS MADE. LD. AO HE ALSO DISALLOWED 1/10 TH OF TELEPHONE EXPENSES ON ESTIMATE BASIS AMOUNTING TO RS. 93,890 AND RS. 40,000 TO STAFF WELFARE EXPENSES. 8. AGGRIEVED BY THE ADDITION MADE BY THE LD. AO ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO DISMISSED THE APPEAL FILED. 9. AGGRIEVED BY THE ORDER OF LD. CIT(A) ASSESSEE IS IN APPEAL BEFORE US NOW. 10. LD. AR SUBMITTED THAT FORM 26 A-S IS A STATEMENT GENERATED ON THE WEBSITE OF INCOME TAX DEPARTMENT 6 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 ON THE BASIS OF TDS RETURN FILED BY THE DEDUCT OR AND NOT BY THE ASSESSEE. HE FURTHER SUBMITTED THAT THE AMOUNT APPEARING IN 26 A-S IS NOT CONCLUSIVE IN RESPECT OF INCOME TO BE ASSESSED, AS IT IS MERELY A DETAIL OF TDS CREDIT IN THE ACCOUNT OF THE ASSESSEE AND ANY WRONG INFORMATION FED IN THE TDS RETURN COULD DISTORT THE DATA. 11. IT IS FURTHER BEEN SUBMITTED THAT ASSESSEE DURING THE APPELLATE PROCEEDINGS BEFORE LD. CIT(A), WITHDREW TDS AMOUNT CLAIMED IN EXCESS OF INCOME DECLARED IN THE RETURN. LD. AR SUBMITTED THAT ASSESSEE HAD FILED BEFORE LD. CIT(A) AN APPLICATION UNDER SECTION 46A, WHICH IS PLACED AT PAGE 87 TO 90 OF THE PAPER BOOK WHICH WAS ACCEPTED AND TAKEN ON RECORD BY LD. CIT(A) FOR SENDING IT TO LD. AO. IT H AS BEEN FURTHER SUBMITTED THAT LD. CIT(A), HOWEVER DID NOT SEND THE SAME TO LD. AO AND PASSED THE ORDER CONFIRMING THE ADDITION MADE BY LD. AO WITHOUT GIVING FURTHER OPPORTUNITY TO ASSESSEE AND WITHOUT ADJUDICATING THE SUBMISSIONS/EVIDENCES FILED BY WAY OF ADDITIONAL EVIDENCES. 12. LD. AR SUBMITTED THAT ASSESSEE HAD VERY CATEGORICALLY SUBMITTED BY WAY OF AN AFFIDAVIT REGARDING NON RECEIPT OF INCOME FROM ICICI BANK, BHARTI AIRTEL LTD AND OTHERS, AS PER THE DETAILS 7 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 APPEARING IN 26 A-S FOR THE YEAR UNDER CONSIDERATION, WHICH IS PLACED AT PAGE 83 TO 86 OF THE PAPER BOOK. HE SUBMITTED THAT LD.CIT(A) CONFIRMED THE ADDITION MADE BY LD.AO WITHOUT VERIFYING THE DETAILS FROM THESE PARTIES REGARDING THE EXCESS INCOME ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSEE. 13. ON THE CONTRARY THE LD. DR SUBMITTED THAT THE DETAILS SHOWN IN FORM 26 AS HAS TO BE ACCEPTED AS RECEIPTS OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HE PLACED HIS RELIANCE UPON THE DECISION OF DAI BHAI GIRDHAR BHAI REPORTED IN 321 ITR 677 (BOM) AND 132 ITR 623 (KER). 14. WE HAVE PERUSED ARGUMENTS ADVANCED BEFORE US BY BOTH THE SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. 15. IT IS OBSERVED THAT ASSESSEE HAD FILED A LOT OF DET AILS BEFORE THE AUTHORITIES WHICH DESERVES TO BE VERIFIE D IN DETAIL. HOWEVER NEITHER LD. CIT(A) HAD CALLED FO R REMAND REPORT, NOR DID LD. AO CONDUCT ANY ENQUIRY TO VERIFY THE CORRECT INCOME OF ASSESSEE. UNDER SUC H CIRCUMSTANCES IT IS DIFFICULT TO ACCEPT THE INCOME AS REFLECTED IN FORM 26 A-S. WE ARE THEREFORE INCLINED TO SET ASIDE THE ISSUE BACK TO THE FILES OF LD. AO TO VERIFY ALL THE DETAILS AND TO ASCERTAIN THE RIGHT 8 I.T.A. NO. 2589/DEL/2016 & ITA NO. 2590/DEL/16 INCOME OF THE ASSESSEE. IT CANNOT BE IGNORED THAT MISTAKES COULD CREEP INTO FORM 26 A-S, WHICH NEEDS TO BE CORRECTED IN THE EVENT OF PROPER DOCUMENTATIO N AND PROOF BEING SUBMITTED BY THE ASSESSEES. WE ACCORDINGLY DIRECT LD. AO TO GIVE AMPLE OPPORTUNITY TO ASSESSEE TO FILE ALL NECESSARY RELEVANT DOCUMENT S TO ESTABLISH HIS CLAIM AND LD. AO MAY TAKE NECESSARY STEPS AS PER LAW. 16. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 17. ITA NO. 2589/DEL/2016 18. THIS IS THE PENALTY APPEAL THAT HAS BEEN FILED AGAINST THE LD. CIT(A)S ORDER CONFIRMATION PENDING UNDER SECTION 271 (1) (C ) OF THE ACT. AS WE HAVE S ET ASIDE THE QUANTUM APPEAL FOR THE YEAR UNDER CONSIDERATION BACK TO LD. AO, THE PENALTY APPEAL BECOMES INFRUCTUOUS. 19. ACCORDINGLY THE PENALTY APPEAL FILED BY THE ASSESSE E STANDS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH DECEMBER, 2016. SD/- SD/- (L. P. SAHU) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 08.12.2016 @M!T