Pal Entp, V. ACIT Circle 22 (1),

ITA 2925/DEL/2007

• Counselvise Citation: 292520114 RSA 2007
• Duration Of Justice: 7 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 17-02-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-06-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: SANTOSH K AGGARWAL
• Section: 28

Judgement Text

ITA NO. 2925/ DEL/ 2007 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A , NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A.NO. 2925 /DEL/20 07 A.Y. : 200 3 - 0 4 M/S PAL ENTERPRISES, A - 265 & 266, OKHLA INDUSTRIAL ESTATE - I, NEW DELHI (PAN: AAAFP6080D) VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 22(1), C.R. BUILDING, NEW DELHI 110 002 (APPELLANT) (RESPONDENT) ASSSESSEE BY : SH. SANTOSH K. AGGARWAL, ADV. DEPARTMENT BY : SH. B.R.R. KUMAR, SR. DR DATE OF HEARING : 17 - 0 2 - 201 5 DATE OF ORDER : 1 8 - 0 2 - 201 5 ORDER PER H.S. SIDHU : J M THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 30 / 3 /20 07 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - X VII , NEW DELHI ON THE FOLLOWING GROUNDS: - 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME - TAX (APPEALS) - XVII, NEW DELHI, DATED 30.3.07, IS WRONG ON FACTS AND BAD IN LAW; 2. THAT THE COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE DI SALLOWANCES OF (I) RS. 1,50,000 / - OUT OF THE FOREIGN TRAVEL EXPENSES, (II) RS. 1,20,000 / - OUT OF VEHICLE ITA NO. 2925/ DEL/ 2007 2 EXPENSES ; (III) RS. 1,00,000 / - OUT OF TELEPHONE EXPENSES AND RS. 50,000 / - OUT OF GUEST HOUSE EXPENSES AS PERSONAL EXPENSES; 3. THAT THE COMMISSIONER (APPEALS) FAILED TO APPRECIATE THAT THE ASSESSING OFFICER ERRED IN NOT ALLOWING THE DEDUCTION OF RS. 1,79,22,048/ - UNDER SECTION 80 HHC OF THE ACT; 4. THAT THE COMMISSIONER (APPEALS) FAILED TO APPRECIATE THAT THE ASSESSING OFFICER ERRED IN TREATING RS. 4,98,91,301 - , THE NET CREDIT BALANCE OF DEPBS ACCOUNT, AS PROFITS FROM THE TRANSFER OF DEPBS CREDITS. HE FAILED TO APPRECIATE THAT THERE WAS NO PROFIT ON THE TRANSFER OF DEPBS CREDITS; 5. THAT THE COMMISSIONER (APPEALS) FAILED TO APPRECIATE THAT THE REC EIPT BY WAY OF DEPBS CREDIT IS OF THE NATURE OF RECEIPT REFERRED TO IN CLAUSE (IIIB) OR (IIIC) OF SECTION 28 OF THE ACT AND ERRED IN HOLDING THAT THE SAID RECEIPT FALLS UNDER CLAUSE (IIID) OF SECTION 28 OF THE ACT; 6. THAT THE COMMISSIONER (APPEALS) FAIL ED TO APPRECIATE THAT ONLY EXCESS AMOUNT, IF ANY REALIZED ON THE TRANSFER OF DEPBS CREDIT FALLS UNDER SECTION 28 (IIID) OF THE ACT; 7. THAT THE COMMISSIONER (APPEALS) FAILED TO APPRECIATE THAT THE ASSESSING OFFICER ERRED IN DEDUCTING 90% OF THE ABOVE REC EIPTS OF RS. 4,98,91,301 / - FROM THE PROFITS OF THE BUSINESS ITA NO. 2925/ DEL/ 2007 3 AS PER EXPLANATION (BAA) OF SECTION 80 HHC OF THE ACT AND NOT ADDING THE SAME IN THE PROFITS OF THE BUSINESS UNDER THE PROVISO TO SUB - SECTION (3) OF SECTION 80 HHC OF THE ACT; 8. THAT THE CONCLU SIONS AND INFERENCES OF THE ASSESSING OFFICER AND/OR COMMISSIONER (APPEALS) ARE BASED ON SUSPICIONS, CONJECTURES, SURMISES AND EXTRANEOUS AND IRRELEVANT CONSIDERATIONS; 9. THAT THE RELIEFS PRAYED FOR MAY KINDLY BE ALLOWED AND THE ORDER(S) OF THE ASSESSI NG OFFICER AND/OR COMMISSIONER (APPEALS) MAY KINDLY BE QUASHED, SET ASIDE, ANNULLED OR MODIFIED; 10. THAT THE AFORESAID GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER; 11. THAT THE APPELLANT CRAVES LEAVE TO VARY, ALTER, AMEND OR ADD TO THE AFORE SAID GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE ABOVE APPEAL. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NEED NOT TO REPEAT HERE FOR THE SAKE OF CONVENIENCE. 3. BOTH THE PARTIES HA VE AGREED THAT THE ISSUES INVOLVED IN GROUND NO. 3 TO 7 MAY BE SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME, IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT (2012) 3 SCC 593 . ITA NO. 2925/ DEL/ 2007 4 4. LD. COUNSEL OF THE ASSESSE E HAS NOT PRESSED THE OTHER GROUNDS APPEAL, HENCE, OTHER GROUNDS RAISED IN THE APPEAL ARE DISMISSED AS SUCH. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. KEEPING IN VIEW OF THE AGREED STATEMENT OF BOTH THE PARTIES AND THE FACTS AND CIRCUMSTANCE OF THE PRESENT CASE AND IN ACCORDANCE WITH THE JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS VS. CIT (2012) 3 SCC 593, WE SET ASIDE THE ISSUES INVOLVED IN GROUND NOS. 3 TO 7 TO THE FILE OF THE AO. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES , IN THE AFORESAID MANNER. ORDER PRONOUNCED IN THE O PEN C OURT ON 1 8 / 0 2 /20 1 5 . S D / - S D / - [ S.V. MEHROTRA ] [ H.S. SIDHU ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 1 8 / 0 2 /201 5 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES