Mohd Anas Qureshi, Ghaziabad V. ITO, Ghaziabad

ITA 3485/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3976 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-06-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 01-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: RAJ KUMAR AGARWAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI B.P. JAIN , ACCOUNTANT MEMBER ITA NO. 3485 / DEL /20 15 ASSESSMENT Y EAR 20 11 - 12 MOHD ANAS QURESHI 19, NAVYUG MARKET, SECOND FLOOR, GHAZIABAD PAN - AAEPQ0492K VS . ITO, WARD - 1(4) GHAZIABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJ KUMAR AGARWAL, FCA RESPONDENT BY : SH. T. VASANTHAN, SR. DR / DATE OF HEARING : 03 / 10 / 201 7 / DATE OF PRONOUNCEMENT: 05 /10 / 201 7 ORDER PER B.P. JAIN, A.M. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF L EARNE D CIT(A), GAZIABAD , VIDE ORDER DATED 19.02.2015 FOR THE ASSESSMENT YEAR 2011 - 13 . THE ASSESSEE HAS FILED THE REVISED AND CONCISE GROUNDS OF APPEAL WHICH ARE AS UNDER: - 1 . THE ORDER PASSED BY THE AO AND THE CIT(APPEAL) ARE IN BAD IN LAW AND AGAINST THE CANNON THE TAXATION. 2 . THE AO AND THE CIT(A) HAVE IGNORED OF LAW AND INTERPRETED WRONGLY. 3 . THE AO AND THE CIT(A) HAVE VITIATED BY THE FACT, FINDING AND REACHED ON ASSESSMENT ONLY ON THE PRESUMPTION AND ASSUMPTIONS AND NOT BASED ON ANY RELEVANT EVIDENCES OR CIRCUMSTANCES. 4 . IT IS TRUE AS OBSERVED BY THE AO THAT ACCOUNTANT IS FABRICATING & TRYING TO HIKE THE SALES SHOWN IN ITR. THE EXPLANATION ON 26.11.2012 WAS OFFERED THAT ACCOUNTS ARE NOT KEPT. ITA NO. 3485 /DEL/201 5 2 2 . THE BRIEF FACTS OF THE CASE IN ALL THE GROUNDS ARE THAT AS PER AIR INFORMATION, THE ASSESSEE HAD DEPOSITED IN UNION OF INDIA AND STATE BANK OF INDIA R S. 24,71,500/ - AS CASH WHICH HAS BEEN EXPLAINED TO BE SALE OF BANANA AGAINST WHICH THE ASSESSEE CLAIMED THE PURCHASES OF THE BANANA FOR WHICH CHEQUES HAVE BEEN ISSUED. THE ASSESSEE HAD FILED THE RETURN UNDER SECTION 44 AF OF THE ACT. THE ASSESSEE COULD NOT E XPLAIN THE CLOSING STOCK OF RS. 54,15,060/ - OF BANANA WHICH BEING OF A PERISHABLE NATURE AND ALSO COULD NOT EXPLAIN THE SALES AND PURCHASES. THE AO ACCORDINGLY TREATED THE UNEXPLAINED CASH DEPOSITED OF RS.31,24,550/ - UNDER SECTION 68 OF THE ACT AND ADDED T O THE INCOME OF THE ASSESSEE WHICH ACTION OF THE AO WAS CONFIRMED BY THE LEARNED CIT(A). 3 . I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FACTS OF THE CASE AS NARRATED BY T HE AO AND THE LEARNED CIT(A) FIN D NO AMBIGUITY AND THE LEARNED AR ALSO CONCEDED THAT T HE ASSESSEE DOES NOT MAINTAIN ANY BOOKS OF ACCOUNT . THE CASH SALE AMOUNTING TO RS.42,55,300/ - AND RS. 24,71,500/ - TOTALING TO RS. 67,26,800/ - HAS BEEN ADMITTED AGAINST WHICH C HEQUES H AVE BEEN ISSUED TO VARIOUS PERSONS BUT TO WHOM THO SE CHEQUES HAVE BEEN ISSUED , NO EXPLANATION IS PLACED ON RECORD. IT IS ALSO UNBELIEVABLE THAT UNION BANK OF INDIA HAVING DEPOSIT OF CASH OF RS. 42,55,300/ - AND C HEQUES HAVING BEEN ISSUED FOR THE SAME AMOUNT CANNOT BE TREATED AS THE PURCHASES FOR THE SAME AMOUNT WHICH ALSO HAS BEEN CONCEDED BY THE LEARNED COUNSEL FOR THE ASSESSEE. ITA NO. 3485 /DEL/201 5 3 4 . IN ANY CASE, THE ASSESSEE HAD MADE A SALE OF RS. 67,26,800/ - ON WHICH A NET PROFIT RATE HAS TO BE APPLIED AND RETURN UNDER SECTION 44 AF CANNOT BE FILED BECAUSE IT EXCEEDS THE LIMITS OF SECTION 44 AF OF THE ACT . U NDER SECTION 44AF , THE ASSESSEE HAS TO DECLARE MINIMUM NET PROFIT RATE TO 8% AND TO COVER UP THE LEAKAGE OF THE REVENUE AND MEET THE BOTH THE INTEREST OF JUSTICE , A NET PROFIT RATE OF 10% IS ORDERED TO BE APPLIED ON A TOTAL SALE OF RS. 6 7,26,800/ - . ACCORDINGLY, THE ASSESSEE GETS THE PART RELIEF. 5 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 3485 /DEL/2015 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY 05/10/2017 . SD/ - ( B.P. JAIN ) ACCOUNTANT MEMBER DATED: 05 / 10 /201 7 SH COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSTT. R EGISTRAR, ITAT, NEW DELHI SL. NO. PARTICULARS DATE 1. DATE OF DICTATION 2. DATE ON WHICH THE DRAFT IS PLACED BEFORE THE DICTATING MEMBER 3. DRAFT PLACED BEFORE THE OTHER MEMBER 4. APPROVED DRAFT COMES TO THE SR. PS/PS 5. KEPT FOR PRONOUNCEMENT ON 6. FINAL ORDER RECEIVED AFTER PRONOUNCEMENT 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILES GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR 10. DATE OF DISPATCH OF ORDER