ITO, New Delhi V. Safe Speed Carriers (P) Ltd., New Delhi

ITA 2801/DEL/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7854 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 12-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K UPADHYAYA
• Assessee Lawyers: SUNIL SINGLA
• Keywords: Depreciation; Opportunity of being heard; Accommodation entries; Assessment record
• Section: 131; 68

Judgement Text

ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2801/DEL/2010 A.Y. : 2006-2007 INCOME TAX OFFICER, WARD 7(2), ROOM NO. 306, CR BUILDING, NEW DELHI VS. M/S SAFE SPEED CARRIERS (P) LTD., 202-203, ASHISH COMPLEX-3, SURAJMAL VIHAR, NEW DELHI (PAN/GIR NO. : AAFCS5383L) AND C.O. NO. 255/DEL/2010 (IN ITA NO. 2801/ DEL/2010) A.Y. 2006-2007 M/S SAFE SPEED CARRIERS (P) LTD., VS. INCOME TAX OFFICER, 202-203, ASHISH COMPLEX-3, WARD 7(2), SURAJMAL VIHAR, NEW DELHI ROOM NO. 306, CR BUILD ING, NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. SANJAY KUMAR AND SH. SUNIL SINGLA FCA DEPARTMENT BY : SH. S.K. UPADHYAYA, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM PER SHAMIM YAHYA : AM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE EMANATE OUT OF ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) DATED 23.3.2010 AND PERTAIN TO ASSESSMENT YEAR 200 6-07. 2. THE GROUNDS RAISED IN THE REVENUES APPEAL READ AS UNDER:- ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 2 I) LD. CIT(A) ERRED, IN LAW AND ON THE FACTS AND CIRCUMSTANCE OF THE CASE, IN DELETING THE ADDITION OF ` 14,14,0 00/- MADE BY THE AO U/S. 68 OF THE IT ACT. II) LD. CIT(A) ERRED, IN LAW AND ON THE FACTS AND C IRCUMSTANCES OF THE CASE, IN DELETING THE ADDITION MADE BY THE AO BY ESTIMATING THE INCOME AT ` 83,63,435/- BEING 10% OF GROSS RECEIPTS AFTER REJECTING THE BOOKS OF ACCOUNTS OF T HE ASSESSEE. III) THE APPELLANT CRAVES TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. APROPOS ISSUE OF SHARE CAPITAL APROPOS ISSUE OF SHARE CAPITAL APROPOS ISSUE OF SHARE CAPITAL APROPOS ISSUE OF SHARE CAPITAL 3. IN THIS CASE ASSESSEE COMPANY IS ENGAGED IN THE B USINESS OF TRANSPORT SERVICES I.E. OPERATING AND RUNNING TRUCK S ON HIRE IN ADDITION TO OUTSOURCING OF TRANSPORT SERVICES. DURING THE FINANCIAL YEAR 2005- 06 RELEVANT TO ASSESSMENT YEAR 2006-07, THE ASSESSEE COMPANY HAS RAISED ` 40,00,000/- AS SHARE CAPITAL IN THE FORM O F 8,000 EQUITY SHARES OF ` 100/- EACH AT A PREMIUM OF ` 400/- EACH FROM SEV ERAL PARTIES AO ASKED THE ASSESSEE COMPANY TO PROVE DETAILED CALCULA TION OF THE METHOD OF VALUATION OF THE PREMIUM PER SHARE IN RESPEC T OF THE SHARE ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 3 PREMIUM CALCULATED @ ` 400/- PER EQUITY SHARE. HOW EVER, THE ASSESSEE COMPANY DID NOT GIVE SATISFACTORY REPLY. ASSESSEE COMPANY DURING THE COURSE OF ASSESSMENT PROCEEDINGS S UBMITTED CONFIRMATORY LETTERS FROM THE PARTIES ALONG WITH THE COPIES OF THEIR BANK A/C STATEMENT REFLECTING THE IMPUGNED TRANSACTI ON. AO SENT LETTERS BY SPEED POST TO ALL THE SHARE APPLICANTS, SEEKING INFORMATION U/S. 133(6). HOWEVER, THE LETTERS ADDRESSED TO T HE FOLLOWING PARTIES WERE RETURNED BACK UNSERVED BY THE POSTAL AUTHORIT IES WITH THE COMMENTS LEFT WITHOUT ADDRESS/ NO SUCH COMPANY. - SHASHI SALES AND MARKETING PVT. LTD. 500 - KESRI INDUSTRIAL LAB. PVT. LTD. 500 - CHINTPURNI CREDIT AND LEASING PVT. LTD. 500 - MONISHA GRANITE LTD. 500 - GARG FINVEST PVT. LTD. 400 - SHRINIWAS LEASING AND FINANCE PVT. LTD. 400 2800 2800 2800 2800 AO FURTHER OBSERVED THAT STATEMENT RECORDED ON OA TH U/S. 131 OF THE IT ACT BEFORE THE ADDL. DIT (INV.), UNIT-I BY SH . MAHESH GARG WHEREIN HE HAS SWORN THAT M/S CHINTPURNI CREDITS & L EASING PVT. LTD.; M/S GARG FINVEST PVT. LTD. ; M/S MONISHA GRANITES PVT. LTD; M/ SHRINIWAS LEASING AND FINANCE LTD. ARE ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES. AO FURTHER NOTED THAT IN S TATEMENT RECORDED ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 4 ON OATH SHRI RAJAN JAISAL HAS SWORN THAT SHASHI SAL ES & MARKETING PVT. LTD. IS ENGAGED IN BUSINESS OF PROVIDING ACCOMMODATIO N ENTRY. HENCE, THE AO OBSERVED THAT TO RECEIVE THE BOGUS ACCOMMODAT ION ENTRY OF ` 14,00,000/-, THE ASSESSEE COMPANY MUST HAVE GIVEN TO TAL CASH OF ` 14,00,000/- TO THESE PARTIES. FURTHER, AO OBSERVED THAT ASSESSEE MUST HAVE GIVEN ` 14,000/- TO THESE PARTIES AS COMMISSION FOR PROVIDING ACCOMMODATION ENTRY. ACCORDINGLY, ADDITION OF ` 14,1 4,000/- WAS MADE BY THE AO U/S. 68 OF THE IT ACT. 4. UPON ASSESSEES APPEAL, LD. C(TA) NOTED THAT TH E NAME OF M/S KESRI INDUSTRIAL LAB (P) LTD. (2.5 LAKH) AND M/S MON ISHA GRANITES LTD. (2.5 LAKH) DO NOT APPEAR IN THE STATEMENT OF MR. MAH ESH GARG AND MR. RAJAN JAISAL. THEREFORE, HE OPINED THAT THE ADDI TION MADE IN RELATION TO THESE TWO PERSONS IS NOT SUPPORTED BY THE REASON GIVEN BY THE AO AND THE EXPLANATION FURNISHED DURING ASSESSMENT PROC EEDINGS IN RELATION TO THESE TWO COMPANIES HAVE BEEN REJECTED I N AN IMPROPER MANNER. LD. CIT(A) FURTHER NOTED THAT NOTHING ADVE RSE HAS BEEN POINTED OUT IN THE REMAND REPORT BY THE AO. ACCORD INGLY, THE ADDITION IN RELATION TO THESE TWO PERSONS AMOUNTING TO ` 5 L AKH WAS DIRECTED TO BE DELETED. FOR REST OF THE FOUR SHARE HOLDERS, LD. CIT(A) NOTED THAT CONFIRMATORY LETTERS, BANK STATEMENTS, INCOME TAX PA RTICULARS OF THESE PARTIES WERE DULY FILED BEFORE THE AO. LD. CIT(A ) OBSERVED THAT IT IS ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 5 SEEN THAT THE ISSUE OF SHARE CAPITAL INCREASE HAS C OME UP BEFORE VARIOUS HONBLE COURTS AND IT HAS BEEN HELD IF THE ASSESSEE PRODUCES THE RELEVANT DOCUMENTS E.G. PAN, ADDRESS, COPY OF RE TURN/ ACKNOWLEDGEMENT, SHARE APPLICATION DOCUMENTS, CONFI RMATION ETC., THE INITIAL ONUS IS DISCHARGED. ACCORDINGLY, LD. CIT(A) DIRECTED THAT THE ADDITION SHOULD ALSO BE DELETED. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 6. LD. D.R. PLACED RELIANCE UPON THE ORDER OF THE HONBLE DELHI HIGH COURT IN ITA NO. 342 OF 2011 IN THE CASE OF C.I.T. VS. NOVA PROMOTERS & FINLEASE (P) LTD. HE CONTENDED THAT IN VIEW OF TH E EXPOSITION MADE BY THE HONBLE DELHI HIGH COURT IN ABOVE CITED OR DER DATED 15.2.2012, THE ADDITION MADE BY THE AO SHOULD BE SUSTAINED. 7. LD. COUNSEL OF THE ASSESSEE ON THE OTHER HAND P LACED RELIANCE UPON THE ORDER OF THE LD.CIT(A) AND PLEADED DELETIO N OF THE AMOUNT ADDED U/S. 68 OF THE IT ACT. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. WE FIND THAT THE AO HAS SPECIFICALLY ASKE D THE ASSESSEE TO PROVIDE THE DETAILED CALCULATION OF THE METHOD OF V ALUATION OF THE PREMIUM PER SHARE IN RESPECT OF THE SHARE PREMIUM CALC ULATED @ ` 400/- PER EQUITY SHARE. HOWEVER, THE ASSESSEE C OMPANY HAS NOT ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 6 GIVEN ANY COGENT REPLY IN THIS REGARD. WE FIND T HAT LD. CIT(A) HAS ALSO NOT GIVEN ANY FINDING IN THIS ASPECT. HENCE, WE OB SERVE THAT THERE IS NO COGENT EXPLANATION ON THE RECORDS, AS TO WHY ASS ESSEE SHOULD CHARGE PREMIUM OF ` 400/- ON SHARES OF ` 100/- PER SHARE. IN THE INTEREST OF JUSTICE, WE REMIT THIS ISSUE TO THE FILE OF THE AO, WHO SHALL ONCE AGAIN GO THROUGH THIS ISSUE. BOTH THE COUNSE L AGREED TO THIS PROPOSITION. ACCORDINGLY, THIS ISSUE STANDS REMITTED TO THE FILE OF THE AO. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE G IVEN ADEQUATE OPPORTUNITY OF BEING HEARD. APROPOS ISSUE OF ESTIMATION OF INCOME APROPOS ISSUE OF ESTIMATION OF INCOME APROPOS ISSUE OF ESTIMATION OF INCOME APROPOS ISSUE OF ESTIMATION OF INCOME 9. IN THIS CASE AO OBSERVED THAT ASSESSEE WAS ASKE D TO FURNISH THE DETAILS PERTAINING TO BOOKING OF FREIGHT CHARGES, T RUCK FARE CHARGES IN A SPECIFIED FORMAT. IN RESPECT OF LORRY HIRE /FREIGHT CHARGES PAID, ASSESSEE WAS ASKED TO FURNISH THE BILLS RAISED BY THE PARTIES AND COPY OF BILITY MENTIONING TRUCK NO. ALONGWITH DETAILS OF TDS. AO FURTHER NOTED THAT ASSESSEE WAS FURTHER ASKED TO FURNISH TH E ADDRESS, CONFIRMATION, PAN AND SUNDRY CREDITORS. AO FURTHER N OTED THAT ASSESSEE WAS ASKED TO PRODUCE ATTENDANCE REGISTER / MUSTER ROLL, MONTHLY RECEIPTED SALARY PAY ROLL IN RESPECT OF DRIV ER, HELPER SALARIES; LABOUR CHARGES AND SALARIES INC. BONUS. FURTHER, IN RESPECT OF DIRECT EXPENSES DEBITED TO THE PROFIT AND LOSS ACCOUNT ASS ESSEE WAS ASKED TO ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 7 FURNISH ALL ORIGINAL BILLS FOR VERIFICATION. THE REAFTER, AO OBSERVED THAT ASSESSEE DID NOT SUPPLY THE DESIRED INFORMATION. A O FURTHER OBSERVED THAT ASSESSEE COMPANY MERELY SUBMITTED CRYPTIC LEDG ER A/C FROM WHICH IT IS NOT POSSIBLE TO DECIPHER THE PERSON TO WHOM P AYMENT WAS MADE AND DETAILS OF PAYMENT MADE. AO FURTHER NOTED THA T THE ASSESSEE COMPANY HAVE FAILED TO PRODUCE THE CASH BOOK AND SUP PORTING BILLS. 9.1 AO FURTHER OBSERVED THAT IT WAS ABSURD TO IMAG INE THAT IN RESPECT OF TRUCKS WHOSE WRITTEN DOWN VALUE WAS ` 47,72,116/ - ON 1.4.2005, THE ASSESSEE COMPANY SPENT AS MUCH AS ` 45,03,281/ - SOLELY FOR THEIR REPAIR. THE ASSESSEE COMPANY HAS FAILED TO PRODUCE BILLS OF SUCH EXPENDITURE EVEN UPON PERSISTENT REQUESTS. IN TH E BACKGROUND OF THE AFORESAID, AO INVOKED THE PROVISION OF SECTION 145( 3) OF THE IT ACT, 1961, REJECTING THE BOOKS OF ACCOUNTS MAINTAINED BY T HE ASSESSEE COMPANY AND CALCULATING THE NET PROFIT AT 10% OF THE GROSS RECEIPTS (` 8,36,34,348/-). 10. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT T HE NET PROFIT RATE ADOPTED BY THE AO IS WHOLLY ARBITRARY AND MERELY A W ILD GUESS HAVING NO NEXUS WITH FACT AND CIRCUMSTANCES OF THE ASSESSE E AS THE AO HAS FAILED TO CONSIDER:- (A) COMPOSITION OF GROSS RECEIPTS OF THE YEAR UNDE R APPEAL; ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 8 (B) PAST HISTORY OF THE APPELLANT ITSELF, WHEREIN THE ASSESSMENT HAS BEEN MADE U/S 143(3); AND (C) NO REASON WHATSOEVER FOR ADOPTING THE- SAID NP RATE ARE DISCERNABLE FROM THE ASSESSMENT ORDER. IT WAS FURTHER PLEADED BY THE ASSESSEE THAT THE IN THE ABSENCE OF ANY INDICATION BY THE AO AS TO HOW THE SAID NP RATE OF 10% OF FOR ESTIMATING THE INCOME FROM GROSS RECEIPTS HAVE BEEN ARRIVED AT, IT CANNOT BE DEEMED THAT INTEREST AND DEPRECIATION HAV E BEEN CONSIDERED BY THE AO AND, THEREFORE, DEPRECIATION A ND INTEREST AMOUNTING TO ` 17,35,868/- AND ` 4,69,282/- RESPECTI VELY HAVE TO BE ALLOWED SEPARATELY. 10.1 LD. CIT(A) FURTHER NOTED THAT IN RESPECT OF A BOVE, A REMAND REPORT WAS ALSO CALLED FROM THE AO, AS THE ASSESSE E IN HIS WRITTEN SUBMISSION HAS VERY CATEGORICALLY STATED THAT THE D ETAILS IN CONNECTION OF BOOKING FREIGHT CHARGES, TRUCK FARE CHARGES AS W ELL AS FOR EXPENSES LIKE THE TRUCK RUNNING EXPENSES, TRUCK RUNNING AND MAINTENANCE EXPENSE WERE FURNISHED TO THE AO AND THAT BOOKS OF ACCOUNT WERE ALSO PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDING S. LD. CIT(A) FURTHER NOTED IN THE REMAND REPORT RECEIVED, ALL THESE CONTENTIONS OF THE ASSESSEE HAVE NOT BEEN REBUTTED BY THE AO. IT IS ONLY STATED ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 9 THEREIN THAT (I) THERE IS A DIFFERENCE IN THE COMPU TATION OF INCOME, (II) THAT THERE IS A VARIATION IN THE DEPRECIATION CHART AT PAGE 28 OF THE PAPER BOOK AND (III) THAT ANNUAL RETURN FILED WITH ROC IS NOT AVAILABLE IN THE ASSESSMENT RECORD. LD. CIT(A) FURTHER OBSERVE D THAT IT IS SEEN THAT THE FIRST REASON WHICH PROMPTED THE AO TO REJECT BOO KS OF ACCOUNT OF THE ASSESSEE APPEARS TO BE THAT IT HAS MERELY SUBMIT TED CRYPTIC LEDGER ACCOUNT IN RELATION TO ADVANCE / IMPREST TO DRIVERS FROM WHICH IT HAS APPARENTLY NOT BEEN POSSIBLE BY THE AO TO DECIPHER THAT AS TO WHOM THE PAYMENT WAS MADE. LD. CIT(A) GAVE A FINDIN G THAT ON PERUSAL OF RELATED TRUCK WISE LEDGER ACCOUNT IT WAS NOTICED TH AT THE ASSESSEE HAS MAINTAINED ADEQUATE RECORDS GIVING TRUCK WISE IMPREST / ADVANCE PAID TO ITS DRIVERS. MOREOVER, LD. CIT(A) FURTHER NOTED THAT THE SAID ADVANCE STANDS DULY CORROBORATED WITH THE RELATED G .R.S. IT WAS FURTHER STATED THAT MERELY BECAUSE THE ASSESSEE HAS NOT MAINTAINED ITS RECORDS DRIVER WISE, THE SAME CANNOT BE THE GROUND FOR REJECTION OF ITS ACCOUNTS, PARTICULARLY, IN VIEW OF THE CORROBORATIV E NATURE OF EVIDENCE MAINTAINED BY THE ASSESSEE. LD. CIT(A) IN THIS REGARD HELD THAT THIS REASONS GIVEN BY THE AO FOR REJECTING THE BOOKS OF ACCOUNTS IS NOT COGENT. 10.2 LD. CIT(A) FURTHER OBSERVED THAT THE NEXT RE ASON FOR REJECTION OF BOOKS BY THE AO APPARENTLY IS THAT THE ASSESSEE HAS FAILED TO PRODUCE ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 10 THE CASH BOOK AND SUPPORTING BILLS. HOWEVER, THE ASSESSEE SUBMITTED THAT THEY WERE BEING MAINTAINED. HENCE, ANOTHER OPPORTUNITY WAS AFFORDED TO THE AO DURING REMAND PROCEEDINGS. LD . CIT(A) OBSERVED THAT ASSESSEES SUBMISSION IN THIS REGARD HAVE NOT B EEN COUNTERED BY THE AO IN HIS REMAND REPORT. THEREFORE, THE LD. CIT(A) HELD THAT IN THESE CIRCUMSTANCES THE SAID OBJECTION OF THE AO DO ES NOT SURVIVE ANY MORE. 10.3 LD. CIT(A) FURTHER OBSERVED THAT THE OTHER REA SON GIVEN BY THE AO WAS THAT THE ASSESSEE COMPANY HAS FAILED TO PRODUCE BILLS FOR REPAIR OF VEHICLES FOR ` 45,03,281/- AND PARTICULARLY WHEN TH E WDV OF TRUCKS IS ONLY ` 47,72,116/- AS ON 1.4.2005. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT MAJOR PORTION OF THESE EXPENSES I.E. ` 2 8.44 LACS HAS BEEN INCURRED BY THE ASSESSEE BY WAY OF CHEQUES AT HEAD OFFICE ITSELF AND REST OF THE EXPENSES OF ` 16.59 LACS APPROX. HAS BE EN INCURRED THROUGH 41 TRUCK DRIVERS FOR MAINLY ON SMALL REPAIR JO BS OF TRUCKS, WHILE ON THE MOVE FROM ONE PLACE TO ANOTHER WHILE CARRYING THE CARGO. 10.4 LD. CIT(A) FURTHER OBSERVED THAT ON QUERY RA ISED, THE ASSESSEE COMPANY FURNISHED THE COMPLETE DETAIL FOR EXPENDITUR E INCURRED BY CHEQUE OF ` 28,38,584/- AND TRUCK WISE AND MONTH W ISE DETAIL OF EXPENDITURE MADE THROUGH TRICK DRIVERS FOR THE BALAN CE SUM OF ` 16,64,697/- IN CASH IN RESPECT OF ALL THE 41 TRUCKS . THE SAID ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 11 COMPILATION WAS IN ADDITION TO THE LEDGER ACCOUNT SUBMITTED VIDE LETTER DATED 3.10.2008 BEFORE THE AO. ON PERUSAL O F THE THESE DETAILS, LD. CIT(A) WAS OF THE CONSIDERED OPINION THAT ASSE SSEE HAS MAINTAINED ADEQUATE AND PROPER RECORDS IN RELATION TO THE SAI D EXPENDITURE. LD. CIT(A) FURTHER NOTED THAT IN FACT, OLDER THE TRUCKS MORE REPAIR WOULD BE REQUIRED ON THEM. LD. CIT(A) FURTHER NOTED THAT IT WAS SEEN THAT SUCH REPAIR EXPENSES HAVE BEEN INCURRED IN EARLIER YEARS ALSO. A COMPARATIVE CHART OF CASH EXPENSES ON REPAIR WAS ALS O SUBMITTED. IN THESE CIRCUMSTANCES, LD. CIT(A) HELD THAT AO WAS NO T JUSTIFIED IN INVOKING THE PROVISION OF SECTION 145(3) AND HELD T HAT THE REJECTION OF BOOKS WAS NOT JUSTIFIED. HOWEVER, LD. CIT(A) OBSER VED THAT TO MEET THE ENDS OF JUSTICE, IN LIGHT OF THE ABOVE OBSERVATION MA DE BY THE AO, WITH REGARD TO CASH PAYMENTS ON REPAIR, DISALLOWANCE OF ` 1,00,000/- IS UPHELD. 11. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPE AL BEFORE US. 12. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENTS RELIED UPON. WE FIND THA T THE LD. CIT(A) HAS GIVEN A CATEGORICALLY FINDING THAT ALL THE NECESSA RY BOOKS OF ACCOUNTS WERE PRODUCED BY THE ASSESSEE AND THE RELEVANT DETA ILS OF EXPENDITURE WAS ALSO PROVIDED. IN THESE CIRCUMSTANCES, WE FIND THAT THE LD. CIT(A) IS CORRECT IN HOLDING THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE BOOKS ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 12 OF ACCOUNTS. HOWEVER, WE FIND THAT LD. CIT(A) HAS UPHELD WITH REGARD TO THE CASH PAYMENT ON REPAIR, A DISALLOWANCE OF ` 1,00,000/-. IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, INTEREST OF JUSTICE WILL BE SERVED, IF THE ADDITION IN THIS REGARD IS MADE OF ` 5,00,000/-. ACCORDINGLY, WE DIRECT THAT INST EAD OF DISALLOWANCE OF ` 1,00,000/-, DISALLOWANCE OF ` 5,00,000/- TO BE M ADE. IN THE RESULT, REVENUES APPEAL STANDS ALLOWED FOR STATISTICAL PUR POSES. ASSESSEES CROSS OBJECTION ASSESSEES CROSS OBJECTION ASSESSEES CROSS OBJECTION ASSESSEES CROSS OBJECTION 13. IN THE ASSESSEES CROSS OBJECTION, IT HAS BEEN URGED THAT LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN MAKING / SUS TAINING AN ADDITION OF ` 1,00,000/- OUT OF TRUCK REPAIR AND MAINTENANCE EXPENSES ON ADHOC BASIS. IN THIS REGARD, WE FIND THAT WE HAVE ALREADY HELD IN THE REVENUES APPEAL AS ABOVE THAT THE ADDITION SHOULD BE MADE AT ` 5,00,000/- IN STEAD OF ` 1,00,000/- INCURRED FOR TRUCK REPAIR AN D MAINTENANCE EXPENSES. HENCE, THIS GROUND RAISED BY THE ASSE SSEE IN C.O. STANDS DISMISSED. 14. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AND ASSESEES CROSS OBJECTION IS DISMIS SED. ITA NO. 2801/DEL/2010 & CO NO. 255/DEL/2010 13 ORDER PRONOUNCED IN THE OPEN COURT ON 15/6/2012. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE:- 15/6/2012 SRB SRB SRB SRBHATNAGAR HATNAGAR HATNAGAR HATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES