Tyagi and Co. , Panipat V. ITO, Ward- 3, Panipat

ITA 2867/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9328 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S THUINGU LENY
• Keywords: Additional evidence
• Section: 142(1); 40(a)(ia); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER ITA NO.-2867/DEL/2018 ( ASSESSMENT YEAR: 2008-09) TYAGI AND CO., PANIPAT 08, VIRK NAGAR, NEAR ST. MARRYS CONVENT SCHOOL, ASANDHA ROAD, PANIPAT PAN : AADFT6199E VS ITO, WARD-3 PANIPAT ASSESSEE BY SHRI VENKETESH CHAURASIA, ADV. REVENUE BY SHRI P.S.THUINGU LENY, SR. DR ORDER PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-KARNAL DATED 0 3.01.2018 FOR ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AN D ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN PASSIN G THE NON SPEAKING AND LACONIC ORDER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN SUSTAI NING THE ADDITIONS/DISALLOWANCE OF RS.23,71,173/- MADE B Y THE AO TO THE RETURNED INCOME OF RS.4,96,620/-. DATE OF HEARING 13.12.2018 DATE OF PRONOUNCEMENT 17.12.2018 2 ITA N O. 2867/DEL/2018 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITIONS/DISALLOWANCES SUSTAINED BY THE CIT(A) ARE AGAINST THE FACTS ON RECORD AS WELL AS AGAINST THE STATUTORY PROVISIONS OF THE ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIR MING THE ADDITION OF AN AMOUNT OF RS. 1,00,000/- ON ACCO UNT OF ADHOC DISALLOWANCE FROM DIESEL. PLANT RENT AND REPAIRS AND MAINTENANCE IGNORING THE FACTS AND WITH OUT BRINGING ANY ADVERSE MATERIAL. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIR MING THE ADDITION OF AN AMOUNT OF RS. 61,840/- ON ACCOUN T OF BANK CHARGES. 7(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS.8,90,000 /- MADE BY AO ON ACCOUNT OF UNSECURED LOAN. (II) THAT THE ABOVESAID ADDITION HAS BEEN CONFIRM ED ARBITRARILY REJECTING THE EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE LENDER AS WELL AS GENUINENE SS OF THE TRANSACTION. 8 (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS.9,51,635 /- MADE BY AO ON ACCOUNT OF ADVANCES GIVEN TO VENDORS AND SUPPLIERS. (II)THAT THE ABOVESAID ADDITION HAS BEEN CONFIRMED ARBITRARILY REJECTING THE EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION IGNORING BUSINESS OF THE ASSESSEE. 9(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS. 1,15,15 0/- MADE BY AO ON ACCOUNT OF PAYMENT MADE TO MATERIAL SUPPLIERS AND FOR REPAIRS AND MAINTENANCE. (II) THAT THE ABOVESAID ADDITION HAS BEEN CONFIRMED ARBITRARILY REJECTING THE EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION IGNORING BUSINESS OF THE ASSESSEE. 10(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS.1,50,000 /- 3 ITA N O. 2867/DEL/2018 MADE BY AO ON ACCOUNT OF FRESH CAPITAL INTRODUCED B Y THE PARTNER. (II) THAT THE ABOVESAID ADDITION HAS BEEN CONFIRMED ARBITRARILY REJECTING THE EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION. 11(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS.52,548/- MADE BY AO ON ACCOUNT OF SEC 40(A)(IA) PAYMENT MADE TO SECURITY SERVICES. (II) THAT THE ABOVESAID ADDITION HAS BEEN CONFIRMED ARBITRARILY REJECTING THE EXPLANATION AND EVIDENCES FILED BY THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION IGNORING BUSINESS OF THE ASSESSEE. 12. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF AN AMOUNT OF RS. 50,000/ - ON ACCOUNT OF ADHOC DISALLOWANCE ON ACCOUNT OF NON MAINTENANCE OF STOCK REGISTER. 2. AT THE OUTSET, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SHRI VENKETESH CHAURASIA, ADV. SUBMITTED T HAT HE HAS FILED AN APPLICATION FOR ADMISSION OF ADDITIONA L EVIDENCE BEFORE THE TRIBUNAL AND SUBMITTED THAT THE SAME SHO ULD BE ADMITTED AND THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS) FOR ADJUDI CATING THE APPEAL OF THE ASSESSEE AFRESH AFTER TAKING INTO CON SIDERATION THE ADDITIONAL EVIDENCES NOW FILED BEFORE THE TRIBU NAL BUT WERE NOT FILED BEFORE THE COMMISSIONER OF INCOME TAX. 3. THE LD. DEPARTMENTAL REPRESENTATIVE, SHRI P.S. T HUINGU LENY, SR. DR DID NOT HAVE ANY OBJECTION TO THE ABOV E SUBMISSION OF THE LD. AUTHORISED REPRESENTATIVE SHR I VENKETESH CHAURASIA, ADV. 4. AFTER CONSIDERING THE RIVAL SUBMISSION AND PERUS ING THE MATERIALS ON RECORD. I FIND THAT THE ASSESSEE HAS F ILED ADDITIONAL EVIDENCES IN THE PAPER BOOK WHICH ARE AS UNDER :- 4 ITA N O. 2867/DEL/2018 SL. NO. PARTICULARS PAGE NO. 1. COPY OF APPLICATION UNDER RTI ACT, 2005 AND OTHER CORRESPONDENCE. 1-4 2. COPY OF ITR, COMPUTATION, BS & P&L, TAR 5-22 3. QUESTIONAIRE ISSUED BY A.O 23-26 4. COPY OF REPLY DATED 10.06.2010 27-28 5. COPY OF NOTICE U/S 142(1) 10.08.2010 29 6. COPY OF NOTICE U/S 143(2) 20.08.2010 30 7. COPY OF REPLY DATED 27.08.2010 31-38 8. COPY OF REPLY DATED 11.10.2010 39 9. COPY OF REPLY DATED 19.10.201 40-44 10. COPY OF REPLY DATED 02.12.2010 45-59 11. COPY OF REPLY DATED 29.10.2010 60-61 12. LETTER FROM AO 12.11.2010 62-63 13. COPY OF SUMMON U/S 133(6) TO J.P.CONSTRUCTION 64 14. COPY OF SUMMON U/S 133(6) TO GUPTA CONSTRUCTION 64-66 15. COPY OF REPLY DATED 07.12.2010 67-124 16. COPY OF REPLY DATED 13.12.2010 125-132 5. I AM OF THE CONSIDERED OPINION THAT IN ORDER TO RENDER SUBSTANTIAL JUSTICE TO THE ASSESSEE ONE MORE OPPORT UNITY SHOULD BE GRANTED TO THE ASSESSEE TO FILE THE ADDIT IONAL EVIDENCES NOW FILED BEFORE THE TRIBUNAL, BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) TO CONSIDER TH E SAME AND ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH. I , THEREFORE, SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME T AX (APPEALS) AND REMAND THE MATTER BACK TO HIS FILE TO ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCES. THE ASSESSEE IS ALSO DIRECTED TO FILE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) THE ADDITI ONAL EVIDENCES FILED BEFORE THE TRIBUNAL FOR HIS CONSIDE RATION AND ADJUDICATION OF HIS APPEAL AFRESH. THE COMMISSIONER OF INCOME TAX (APPEALS) IS DIRECTED TO ALLOW REASONABLE AND S UFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE ADJUD ICATING THE 5 ITA N O. 2867/DEL/2018 APPEAL OF THE ASSESSEE AFRESH. WITH THESE DIRECTION S, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 6. IN THE FINAL RESULT, APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17.12.2018 SD/- (N.S.SAINI) ACCOUNTANT M EMBER DATED: 17.12.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 13.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER .12.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 17.12.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 17.12.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS .12.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 6 ITA N O. 2867/DEL/2018 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER