ITO, Meerut V. Shri Shri Nadeem, Meerut

ITA 3766/DEL/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6461 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 27-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: YOGESH SHARMA SENIOR
• Keywords: Business income; Opportunity of being heard
• Section: 68; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3766/DEL./2016 (ASSESSMENT YEAR : 2011-12) ITO, WARD 2 (1), VS. SHRI NADEEM, MEERUT. 27, BAZAR, ABDULLAPUR, MEERUT. (PAN : ADUPN2318M) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADVOCATE REVENUE BY : SHRI YOGESH SHARMA, SENIOR DR DATE OF HEARING : 07.01.2019 DATE OF ORDER : 16.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME-TAX OFFICER, WARD 2 (1), MEER UT (HEREINAFTER REFERRED TO AS THE REVENUE) BY FILIN G THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 07.03.2016 PASSED BY LD. CIT (APPEALS), MEERUT QUA THE ASSESS MENT YEAR 2011-12 ON THE GROUNDS INTER ALIA THAT :- 1, WHETHER THE LD. COMMISSIONER OF INCOME TAX (APP EALS), HAS ERRED IN LAW AND FACT IN DIRECTING THE ASSESSING OFFICER TO TREAT THE GROSS PROFIT AT RS.3,93,23,166/- AND ALLOW ALL THE EXPENSES CLAIMED IN P&L A/C IN PLACE OF NET PROFIT OF RS.10,29,26,753/- THAT WAS ESTIMATED BY T HE ASSESSING OFFICER @ 8% OF THE GROSS TURN OVER AFTER REJECTING THE BOOKS OF ACCOUNT U/S 145 OF THE I.T. ACT, 1961, IGNORING THE FACT THAT THE ESTIMATED RAT E OF NET PROFIT WAS ARRIVED AT BY THE ASSESSING OFFICER ON THE BASIS OF THE TOTAL BUSINESS RECEIPTS DECLARED BY THE ASSESSEE. ITA NO.3766/DEL./2016 2 2. WHETHER THE LD. COMMISSIONER OF INCOME TAX (APPE ALS), HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.47,40,757/- M ADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED SUNDRY CREDITORS U/S 68 OF THE I.T. ACT, 1961, IGNORING THAT THE ASSESSEE TOTALLY FAILED TO DISCHARGE THE O NUS CAST UPON IT TO PROVE THE GENUINENESS, CREDITWORTHINESS & IDENTITY OF THE CRE DITORS. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : THE ASSESSEE IS INTO THE BUSINESS OF TRADING BUFFALO MEAT ON COMMISSION BASIS IN WHOLESA LE. THE ASSESSING OFFICER NOTICED THAT AS AGAINST THE TURNO VER OF RS.1,28,65,84,416/-, THE ASSESSEE DECLARED NET PROF IT OF RS.17,04,438/- YIELDING 0.13%. ON FAILURE OF THE A SSESSEE TO PRODUCE COMPLETE BOOKS OF ACCOUNTS, BILLS, VOUCHERS AND OTHER DETAILS DESPITE REPEATED OPPORTUNITIES, THE AO ESTI MATED THE PROFIT BY THE ASSESSEE FROM THE BUSINESS RECEIPT AT 8% AND THEREBY ESTIMATED THE NET PROFIT AT RS.10,29,26,753/-. AO ALSO MADE ADDITION OF RS.47,40,757/- ON ACCOUNT OF UNEXPLAINE D SUNDRY CREDITORS UNDER SECTION 68 OF THE INCOME-TAX ACT, 1 961 (FOR SHORT THE ACT) AS THE ASSESSEE HAS FAILED TO PROVIDE DE TAILS OF PAN, ITR AND BANK STATEMENT OF THE SUNDRY CREDITORS. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY PARTLY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. ITA NO.3766/DEL./2016 3 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. AT THE VERY OUTSET, IT IS BROUGHT ON RECORD BY T HE LD. AR FOR THE ASSESSEE THAT THE ASSESSEES APPEAL (ITA NO.153 8/DEL./2016) CHALLENGING THE IMPUGNED ORDER PASSED BY THE CIT (A ) HAS ALREADY BEEN SET ASIDE TO THE AO TO DECIDE AFRESH AFTER PRO VIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN VIE W OF THE MATTER, THE PRESENT APPEAL FILED BY THE REVENUE CHALLENGING THE SAME ORDER PASSED BY THE LD. CIT (A) IS ALSO REQUIRED TO BE SE T ASIDE TO THE AO AS ALL THE ISSUES ARISING OUT OF THE SAME IMPUGNED ORDER ARE REQUIRED TO BE DECIDED BY ONE ORDER BY THE AO. SO, IN VIEW OF THE MATTER, THE PRESENT APPEAL IS ORDERED TO BE SET ASI DE TO THE AO TO DECIDE AFRESH BY CONSIDERING ALL THE CONTENTIONS RA ISED BY PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CON SEQUENTLY, APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 16 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH DAY OF JANUARY , 2019 TS ITA NO.3766/DEL./2016 4 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. DATE OF DICTATION : 07.01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER: 08.01.2019 DATE ON WHICH THE APPROVED DRAFT COME TO SR.PS/PS : 15.01.2019 DATE ON WHICH FAIR ORDER SENT TO MEMBER FOR SIGNATU RE : 15.01.2019 DATE ON WHICH THE FAIR ORDER COMES BACK AFTER PRONO UNCEMENT TO THE SR.PS/PS : 21.01.2019 DATE ON WHICH ORDER IS UPLOADED: 21.01.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 21.01.2019 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE AR FOR SIGNA TURE ON THE ORDER DATE OF DESPATCH OF THE ORDER