Sh. Gian Prakash Gupta, New Delhi V. DCIT, New Delhi

ITA 3380/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2148 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-12-2009
• Assessment Year: 2002-2003
• Appeal Filed On: 14-11-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Keywords: Depreciation
• Section: 234B

Judgement Text

I.T.A. NO.3380/DEL./2008 (A.Y. : 2002-03) 1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : C NEW DELHI) BEFORE SHRI RAJPAL YADAV, J UDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T.A. NO.3380/DEL./2008 (ASSESSMENT YEAR : 2002-03) SHLRI GIAN PRAKASH GUPTA, VS. DCIT, CIRCLE 5, LM-78, CONNAUGHT PLACE, NEW DELHI. NEW DELHI. (PAN AEXPG6899J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANAT KAPOOR REVENUE BY : SMT. MONA MOHANTY, DR ORDER PER K.D. RANJAN, AM THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 200 2-03 ARISES OUT OF ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-I, NEW DEL HI. 2. THE FIRST ISSUE FOR CONSIDERATION RELATES TO SU STAINING THE ADDITION OF RS.1,15,935/- ON ACCOUNT OF AMOUNT DEPOSITED IN LORD KRISHNA BANK . THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSEE DURING THE RELEVANT YEA R WAS PROPRIETOR OF KURUKSHETRA COLLEGE. THE ASSESSEE RECEIVED FEE WORTH RS.9 LAKH FROM KCC SOFTWARE LTD. AS FACILITY AND MANAGEMENT FEES. DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, IT WAS FOUND THAT THE ASSESSEE HAD DEPOSITED RS.1,15,935/- IN ACCOUNT NO. 4768 WITH LORD KRISHNA BANK. THE ASSESSEE WAS NOT ABLE TO CORRELATE THE AMOUNT OF RS .1,15,935/-. ON APPEAL, THE CIT(A) UPHELD THE ADDITION MADE BY THE AO AS THE ASSESSEE WAS NOT ABLE TO RECONCILE THAT THE AMOUNT OF RS.1,15,935/- DEPOSITED THROUGH CHEQUE AN D CASH CAME FROM THE RECEIPT OF RS.9 LAKH. 3. BEFORE US, LD.AR OF THE ASSESSEE REITERATED THE SAME ARGUMENTS AS WERE MADE BEFORE THE AUTHORITIES BELOW. ON THE OTHER HAND, L D.DR SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE HEARD BOTH THE PARTIES. THERE IS NO DIS PUTE THAT ACCOUNT NO.4768 WITH LORD KRISHNA BANK BELONGS TO ASSESSEE. THE CONTENT ION OF THE ASSESSEE THAT THE AMOUNT OF RS.1,15,935/- IS PART OF RS.9 LAKH RECEIVED FROM KCC SOFTWARE LTD. AS FACILITY AND I.T.A. NO.3380/DEL./2008 (A.Y. : 2002-03) 2 MANAGEMENT FEES. HOWEVER, NO EVIDENCE COULD BE FIL ED BY THE ASSESSEE SO AS TO SUBSTANTIATE THIS CONTENTION. ACCORDINGLY, IN OUR CONSIDERED OPINION, THE CIT(A) WAS JUSTIFIED IN UPHOLDING THE ADDITION. 5. THE NEXT ISSUE FOR CONSIDERATION RELATES TO DISA LLOWANCE OF TELEPHONE EXPENSES AT RS.5,000/- AND CAR MAINTENANCE AND DEPRECIATION AT RS.8,000/-. THE AO HAD DISALLOWED THESE AMOUNTS FOR PERSONAL USE OF THE ASSESSEE. TH E ASSESSEE HAD INCURRED TELEPHONE EXPENSES OF RS.28,395/- OUT OF WHICH RS.5,000/- HAS BEEN DISALLOWED. LIKEWISE, THE ASSESSEE HAS INCURRED CAR MAINTENANCE EXPENSES OF R S.44,153/- AND DEPRECATION OF RS.9,877/-. SINCE THE POSSIBILITY OF PERSONAL USE OF TELEPHONE AND VEHICLE CANNOT BE RULED OUT, IN OUR CONSIDERED OPINION, THE CIT(A) WAS JUST IFIED IN UPHOLDING THE DISALLOWANCE IN VIEW OF DECISION OF HONBLE MADRAS HIGH COURT IN TH E CASE OF KANTHIMATHY PLANTATIONS PVT. LTD. VS. STATE OF TAMIL NADU, 215 ITR 203 (MAD .). ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION. 6. THE NEXT ISSUE FOR CONSIDERATION RELATES TO INIT IATION OF PENALTY PROCEEDINGS U/S 271(1)(C). SINCE THE PENALTY PROCEEDINGS HAVING BE EN IMPOSED, IT IS PREMATURE TO ADJUDICATE THIS GROUND AND HENCE DESERVES TO BE DIS MISSED AS SUCH. 7. THE LAST ISSUE FOR CONSIDERATION RELATES TO CHAR GING OF INTEREST U/S 234A AND 234B OF THE I.T. ACT. SINCE CHARGING OF INTEREST U/S 23 4A AND 234B IS MANDATORY AND CONSEQUENTIAL IN NATURE, THIS GROUND OF APPEAL IS D ISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 18.12.2009. SD/- SD/- (RAJPAL YADAV) (K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, DEC. 18, 2009. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-I, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR/ITAT I.T.A. NO.3380/DEL./2008 (A.Y. : 2002-03) 3