Sh. Vinod Kumar, Meerut V. ITO, Meerut

ITA 2944/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6819 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 17-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: V K GOEL
• Keywords: Opportunity of being heard; Reasonable cause; Corroborative evidences

Judgement Text

I.T.A .NO.-2944/DEL/2016 VINOD KUMAR VS ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-2944/DEL/2016 (ASSESSMENT YEAR-2007-08) VINOD KUMAR, C/O-VINOD KUMAR GOEL, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT. PAN-AEYPC5577N ( APPELLANT) VS ITO, WARD-2(4), MEERUT. (RESPONDENT) ASSESSEE BY SH.V.K.GOEL, ADV. REVENUE BY SH. F.R.MEENA, S R.DR DATE OF HEARING 17 . 11 .2016 DATE OF PRONOUNCEMENT 01 . 0 2 .201 7 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 28.03.2016 OF CIT(A), MEERUT PERTAINING TO 2007-08 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. THE LD.A.O. AS WELL AS LD.CIT(A) IGNORED THE FA CT THAT THE SHOP WAS ALLOTTED ON 14.08.1999 AS PER ALLOTMENT LETTER THE ASSESSEE HAS MADE PAYMENT. THE RECEIPT WAS DESTROYED IN FIRE, ALL THE ADDITION OF ON ACCOUNT OF SHOP IS ARBITRARY, UNJUST AND NOT ACCORDING TO LAW. 2. THAT RS.1,73,000/- WAS OUTSTANDING BALANCE OF SH .ANIL CHAWLA, THE CO- OWNER OF THE SHOP AND OUTSTANDING BALANCE IS SHOWN IN THE BALANCE SHEET OF EARLIER YEARS. HENCE, RS.4,00,000/- AND RS.1,73,00 0/- CANNOT BE ADDED IN THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMEN T. 3. THAT THAT NATURE OF THE TRADE IS REQUIRED JOB FR OM OUTSIDE AND IT CANNOT BE DISALLOWED @ 50% ON JOB WORK AND ADDITION OF RS.26, 360/- IS UNJUSTIFIED AND WITHOUT ANY BASIS. BECAUSE AFTER DISALLOWANCE OF E XPENSES OF RS.32,43% WHICH IS HIGHLY EXCESSIVE AND NET PROFIT CANNOT BE EXCEED 10% OF THE RECEIPT. 4. THAT THE ASSESSEE HAS CLAIMED THAT THE DOCUMENTS WERE BURN IN FIRE IS SUPPORTED BY DOCUMENT AND FIR. HENCE, THE ASSESSEE HAS REASONABLE CAUSE OF R NON-PRODUCTION OF EVIDENCE AND COVERED U /S 44AF OF I.T.ACT, BECAUSE THE ASSESSEE IS SMALL TRADER. 5. THAT THE ASSESSEE HAS RIGHT TO ADD, DELETE OR MO DIFY ANY GROUNDS DURING THE APPEAL PROCEEDING. 2. RIGHT AT THE OUTSET, THE LD. AR SUBMITTED THAT H E HAD MOVED AN ADJOURNMENT APPLICATION ON 01.10.2016 AS HE WAS EXPECTED TO BE OUT OF STATION HOWEVER SINCE HE HAS MANAGED HIS AFFAIRS HE SOUGHT PERMISSION TO WITHDRA W THE APPLICATION. THE LD.SR.DR HAD NO OBJECTION AS HE SAID HE WAS PREPARED TO ARGUE. ACCORDINGLY, CONSIDERING THE PAGE 2 OF 4 I.T.A .NO.-2944/DEL/2016 VINOD KUMAR VS ITO SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, PERMI SSION TO WITHDRAW THE REQUEST WAS GRANTED. 3. THE LD. AR INVITING ATTENTION TO THE ASSESSMENT ORDER AND THE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE HAS RETURNED AN INCOME OF RS.1,09,620/- FROM JOB WORK. THE ASSESSMENT WAS CONCLUDED AT AN INCOME OF RS.9,27,46 4/- AS THE RELEVANT DOCUMENTS IN SUPPORT OF THE SAID RETURN WERE DESTROYED IN A FIRE AND THE ASSESSEE WAS UNABLE TO PRODUCE THE SAME. IT WAS HIS SUBMISSION THAT THE ASSESSEE HAS ALL ALONG BEEN CLAIMING IN THE PECULIAR FACTS OF THE PRESENT CASE THAT HIS INCOME MAY BE ESTIMATED ON THE BASIS OF SECTION 44 AF OF THE INCOME TAX ACT. IN SUPPORT OF THE PR AYER, ATTENTION WAS INVITED TO GROUND NO. 2 RAISED BEFORE THE CIT(APPEALS). IT WAS SUBMITTED THAT THE ASSESSEE HAS ARGUED BEFORE THE ASSESSING OFFICER THAT AT THE SHOP PREMISES OF THE ASSESSEE WHO WAS A TAILOR A FIRE HAD OCCURRED ON 30.05.2009. HOWEVER THE ASSESSING OFFI CER CONSIDERING THE FACT THAT THE FIR MENTIONED THAT THE FIRE OCCURRED ON 12.06.2009 AND ON NOTING THAT THE ADDRESS MENTIONED BY THE FIRE DEPARTMENT AS PER ITS CERTIFICATE WAS D IFFERENT, REFUSED TO LOOK AT THE FRESH CERTIFICATE ISSUED BY THE FIRE DEPARTMENT CORRECTLY MENTIONING THAT THE FIRE OCCURRED ON 30.05.2009 AND CONCLUDE THAT THE DATE AND THE ADD RESS ARE DIFFERENT. REFERRING TO THE CONCLUSION DRAWN BY THE CIT(A), IT WAS SUBMITTED TH AT THE ISSUE WAS DECIDED AGAINST THE ASSESSEE HOLDING A PERUSAL OF THE NOTE SHEET IN THIS CASE REVEALS T HAT ASSESSEE HAS NOT COOPERATED WITH THE COUNSEL AND ULTIMATELY ON 21.03 .2016 THE AR HAS WITHDRAWN HIS POWER OF ATTORNEY. THE NOTE SHEET ALSO REVEALS THAT TIME WAS GIVEN LIBERALLY TO THE ASSESSEE TO FURNISH A RESPONSE TO THE COMMENTS OF THE AO TO WHO M THE MATTER HAD BEEN REMANDED. HOWEVER, THE ASSESSEE HAS REMAINED NON-COOPERATIVE AND NO COUNTER COMMENTS TO THE REMAND REPORT HAVE BEEN FURNISHED BY THE AR OR THE ASSESSEE HIMSELF. 3.1. IN THE SAID BACKGROUND, IT WAS HIS SUBMISSION THAT THE COUNSEL REPRESENTING THE ASSESSEE BEFORE THE CIT(A) HAD SOUGHT TIME TO PLACE THE EVIDENCE OF FIRE AT THE SHOP PREMISES OF THE ASSESSEE TO SUPPORT THAT THE EVIDEN CE WAS DESTROYED WHICH REQUEST THE PAGE 3 OF 4 I.T.A .NO.-2944/DEL/2016 VINOD KUMAR VS ITO CIT(A) WRONGLY CONCLUDED THAT THE LD.AR HAS WITHDRA WN HIS POWER OF ATTORNEY. IT WAS HIS SUBMISSION THAT THE LD. COMMISSIONER WAS INSISTING UPON THE EVIDENCES AND EVEN BEFORE THE CIT(A) THE ASSESSEE WAS REPRESENTED BY HIM HAD SUBMITTED THAT SOME MORE TIME WAS REQUIRED AS THE EVIDENCE HAD NOT BEEN HANDED OVER T O HIM. IN THESE CIRCUMSTANCES, THE CIT(A) QUESTIONED WHY THE COUNSEL WAS SEEKING TIME AGAIN AND AGAIN AND HE SHOULD INFACT WITHDRAW HIS POWER OF ATTORNEY. IT WAS HIS SUBMISSI ON THAT RELYING UPON THE PHOTO COPY OF THE PAPER CUTTING PAPER BOOK PAGE 11 AND PHOTOCOPY OF THE REPORT OF FIRE DEPARTMENT AT PAGES 12 AND 13 OF THE PAPER BOOK THE FACT THAT THE FIRE OCCURRED ON THE SPECIFIC PREMISES ON 30.05.2009. ACCORDINGLY, IT WAS HIS REQUEST THA T HE HAD NO OBJECTION IF THE DOCUMENTS ARE VERIFIED BY THE DEPARTMENT. HOWEVER, THE ISSUE , IN THE PECULIAR FACTS AND CIRCUMSTANCES IT WAS HIS SUBMISSION THAT THE CIT(A) MAY BE DIRECTED TO DECIDE THE ISSUE ON THE BASIS OF SECTION 44 AF OF THE INCOME TAX ACT ON WHICH THERE WAS JUDICIAL PRECEDENT IN HIS FAVOUR. 4. THE LD. SR.DR, MR. F.R.MEENA HAD NO OBJECTION IF THE ISSUES ARE RESTORED FOR VERIFICATION OF THE FACT WHETHER THE FIRE OCCURRED ON 30.05.2009 AT THE BUSINESS PREMISES OF THE ASSESSEE. HE ALSO HAD NO OBJECTION TO RESTORING THE ISSUE TO THE FILE OF THE CIT(A) AS THE ASSESSEE HAD RAISED A SPECIFIC GROUND FOR CONSIDERI NG THE APPLICABILITY OF SECTION 44 AF BEFORE THE SAID AUTHORITY WHICH REMAINED NOT DECIDE D. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE CLAIMED THAT FIRE OCCURRE D AT THE BUSINESS PREMISES OF THE ASSESSEE ON 30.05.2009. IN VIEW OF SOME TYPOGRAPHIC AL MISTAKES CLAIMED TO HAVE OCCURRED IN THE ORIGINAL EVIDENCE FILED, THE ASSESSEE RELIED UPON FRESH CERTIFICATE OF THE CONCERNED DEPARTMENT AND ALSO SUPPORTING EVIDENCE BY WAY OF N EWSPAPER REPORTS. IN THE AFORE- MENTIONED PECULIAR FACTS AND CIRCUMSTANCES CONSIDER ING THAT THE ASSESSEE HAD ALSO RAISED GROUND NO. 2 BEFORE THE CIT(A) WHICH REMAINED UNDEC IDED, IN THE CIRCUMSTANCES, IT IS DEEMED APPROPRIATE TO RESTORE THE ISSUE BACK TO TH E FILE OF THE SAID AUTHORITY DIRECTING HIM PAGE 4 OF 4 I.T.A .NO.-2944/DEL/2016 VINOD KUMAR VS ITO TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFT ER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE FRESH EVIDENCES IF ANY, RELIED UPON IN SUPPORT OF THE CLAIM THAT THE FIRE OCCURRED AT THE BUSINESS PREMISES OF THE ASSESSEE, MAY BE TAKEN ON RECORD AND AFTER CONFRONTING THE SAME TO THE AO AND MAKING THE REPORT OF THE AVAILABLE TO THE ASSESSEE HE MAY PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE LD.CIT(A) IS ALSO DIRECTED TO DECIDE GROUND NO.2 RAISED BEFORE HIM WH ICH REMAINED UNDECIDED. THE ASSESSEE MAY SUPPORT ITS CLAIM RELYING ON JUDICIAL PRECEDENT AVAILABLE THEREON. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 01 OF FEBRUARY 2017. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI