Leather Tech, New Delhi V. ACIT Circle-22 (1), New Delhi

ITA 2677/DEL/2008

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9600 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 02-01-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 11-08-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: SANTOSH AGGARWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA : VICE PRESIDENT; A ND SRHI C.L. SETHI : JUDICIAL MEMBER ITA NO. 2677/DEL/08 ASSTT. YR: 2004-05 M/S LEATHER TECH. VS. ACIT, CIRCLE-22(1), D-43, OKHLA INDUSTRIAL ESTATE-I, NEW DELHI. NEW DELHI. PAN/GIR NO. AAAFL1041J ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI SANTOSH AGGARWAL ADV. RESPONDENT BY : SHRI B.K. GUPTA SR. DR O R D E R PER G.E. VEERABHADRAPPA, V.P: THIS APPEAL, BY THE ASSESSEE, ARISES OUT OF THE OR DER DATED 18-02-2008 OF THE CIT(APPEALS)-XXVIII, NEW DELHI FOR A.Y. 2004 -05. 2. THE ASSESSEE IS A FIRM. FOR A.Y. 2004-05 THE ASS ESSING OFFICER DISALLOWED 1/8 TH OF THE TELEPHONE AND VEHICLE EXPENSES ON ACCOUNT O F PERSONAL USER. THE CIT(A) RESTRICTED THE SAID DISAL LOWANCE TO 1/10 TH. AGGRIEVED, THE ASSESSEE IS BEFORE US. ITA 2677/DEL/08 M/S LEATHER TECH. 2 3. WE HAVE HEARD BOTH THE SIDES AND FIND THAT THE D EPARTMENT HAS MADE THE DISALLOWANCE ON THE REASONING THAT THE ASSESSEE HAD NOT PRODUCED LOG BOOKS AND CALL REGISTER, EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. FOR WANT OF RECORDS, IT CANNOT BE CONCLUDED THAT ALL THE EXPENSES INCURRED BY THE ASSESSEE IN RESPECT OF VEHICLES AND THE TELEPHONES WERE ENTIRELY FOR THE PURPOSE OF BUSINESS. IN ABSENCE OF THE EVIDENCES, THE DEPARTMENT HAS MADE SOME ESTIMATION. IN OUR VIEW T HE DISALLOWANCE OF JUST 1/10 TH OF THESE EXPENSES CANNOT BE SAID AS UNREASONABLE, HAVING REGARD TO THE FACTS OF THE CASE. WE DECLINE, TO INTERFERE. 4. THE NEXT DISPUTE RELATES TO THE ASSESSEES CLAIM FOR DEDUCTION U/S 80-HHC OF THE ACT IN RESPECT OF TRANSFER OF DEPBS C REDITS. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY ADMITTED THAT THE T URN OVER OF THE ASSESSEE IS MORE THAN 10 CRORES AND HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF AO FOR COMPUTATION OF DEDUCTION IN THE LI GHT OF THE SPECIAL BENCH DECISION OF THE ITAT DATED 1-8-2009 IN THE CASE OF TOPMAN EXPORTS IN ITA NO. 5769/MUM/06, THE BENEFIT OF WHICH DECISION WAS NOT AVAILABLE WHEN THE LEARNED CIT(APPEALS) DISPOSED OFF THE MATTER. THE L EARNED DR HAS REQUESTED FOR AN OPPORTUNITY IN THE HANDS OF THE AS SESSING OFFICER. 5. WE HAVE GONE THROUGH THE RECORDS AND RESTORE TH E MATTER BACK TO THE FILE OF THE ASSESSING OFFICER IN RELATION TO THE CO MPUTATION OF THE RELIEF U/S ITA 2677/DEL/08 M/S LEATHER TECH. 3 80-HHC. THE ASSESSING OFFICER SHALL COMPUTE THE DED UCTION BY FOLLOWING THE ORDER OF THE SPECIAL BENCH OF THE ITAT DATED 1 -8-2009, IN THE CASE OF TOPMAN EXPORTS IN ITA NO. 5769/MUM/06. 6. IN THE RESULT, REVENUES APPEAL IS TO BE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON _____-9-2009. (C.L. SETHI ) ( G.E. VEERABHADR APPA ) JUDICIAL MEMBER VICE PRESIDENT DATED: _____-09-2009. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR