Bulls And Bears Financial Services, New Delhi V. ITO WARD - 50(1), New Delhi

ITA 385/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2350 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 22-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: HEMANT JAIN
• Keywords: Principle of natural justice; Revised return
• Section: 143(3); 143(2)

Judgement Text

1 ITA NO. 385/DEL/2020 IN THE INCOME TAX APPE LLATE TRIBUNAL DELHI BENCH: SMC-1 NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND DR. B. R. R. KUMAR, ACC OUNTANT MEMBER I.T.A. NO. 385/DEL/202 0 (A.Y 2015-16) (THROUGH VIDEO CON FERENCING) BULLS AND BEARS FINANCIAL SERVICES W6, OPP. METRO PILLAR NO. 234, WEST PATEL NAGAR, NEW DELHI-110008 PAN: AAMFB5684K (APPELLANT) VS ITO WARD-50(1) 14 TH FLOOR, ROOM NO. 1408, E-2 BLOCK, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, JLN MARG, NEW DELHI (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST ORDER DATED 30/09/2019 PASSED BY CIT(A)- 42, NEW DELHI FOR ASSESSMENT YEAR 2015-16. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE LD. CIT (A) HAS GROSSLY ERRED BOTH ON FACTS AN D IN LAW IN CONFIRMING THE ORDER OF LD. AO IN MAKING AN ADDITIO N OF RS. 8,98,110/- TO INCOME RETURNED BY THE APPELLANT. 2. THE LD. CIT (A) ERRED IN FACTS AND IN LAW IN FAILI NG TO APPRECIATE APPELLANTS SUBMISSION AND IN CONFIRMING ADDITIONS ON PRESUMED APPELLANT BY SH. HEMANT JAIN, ADV RESPONDENT BY SH. R. K. GUPTA, SR. DR DATE OF HEARING 17.06.2021 DATE OF PRONOUNCEMENT 29.06.2021 2 ITA NO. 385/DEL/2020 TURNOVER MADE BY THE LD AO WITHOUT CARRYING OUT DUE ENQUIRY REQUIRED UNDER THE LAW. 3. THAT LD AO ERRED IN FACTS AND IN LAW IN CALCULATIN G NET PROFIT RATE OF 8.84% IN IGNORANCE OF REVISED RETURN FILED BY THE A PPELLANT. 4. THAT LD. CIT (A) GROSSLY ERRED IN LAW IN FAILING T O ADJUDICATE THE FOLLOWING GROUND TAKEN BEFORE IT BY THE APPELLANT. THE LD. AO ERRED IN FACTS AND IN LAW BY FAILING TO STATE UNDER WHAT STATUARY PROVISIONS THE IMPUGNED ADDITIONS WAS MADE AND TAX IS DETERMINED ON APPELLANT. 3. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MONE Y LANDING AND PROVIDING BUSINESS SUPPORT/FINANCIAL SERVICES. FOR THE ASSES SMENT YEAR 2015-16, THE ASSESSEE E-FILED ITS RETURN OF INCOME ON 20/09/2015 DECLARING INCOME OF RS. 3,60,130/-. THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY ASSESSMENT VIDE NOTICE U/S 143(2) DATED 26/7/2016 BY THE ASSES SING OFFICER. THE ASSESSING OFFICER PASSED AN ORDER U/S 143(3) DATED 11/1/2017 THEREBY MAKING ADDITION OF RS. 8,98,110/-ON THE UNDECLARED RECEIPTS OF RS.1,01,59,619/- UNDER THE HEAD INCOME FROM BUSINES S OR PROFESSION AND APPLIED NET PROFIT RATE OF 8.84%. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HAS IGNORED THE AFFIDAVIT FILED BY THE ASSESSEE DURING THE ASSESSMENT PROCEED INGS THEREBY STATING THAT DUE TO INADVERTENT, THE TURNOVER IN SERVICE TAX RET URNS HAD BEEN WRONGLY DECLARED AT RS. 1,76,24,352/- IN PLACE OF ACTUAL TU RNOVER BEING RS.74,64,733/-. THE LD. AR SUBMITTED THAT AS PER TAX LAW, THE SERVI CE TAX RETURN CANNOT BE REVISED AFTER 60 DAYS AND THUS, THE ASSESSEE COULD NOT REVISE THE SAID SERVICE TAX RETURNS. THEREFORE, THE ASSESSEE COULD NOT REV ISE THE RETURN OF INCOME FILED 3 ITA NO. 385/DEL/2020 BEFORE THE INCOME TAX DEPARTMENT. THE LD. AR SUBMI TTED THAT THE ASSESSING OFFICER HAS NOT CARRIED OUT ANY ENQUIRY AND NEVER T RIED TO LOOK INTO THE ACCOUNT BOOKS AND BANK STATEMENT WHICH DEMONSTRATED THAT TH E ASSESSEES CLAIM IS JUST & PROPER. THE ASSESSING OFFICER SIMPLY PROCEED ED TO TREAT THE DIFFERENCE IN RECEIPTS AS BUSINESS TURNOVER. THE LD. AR FURTHER SUBMITTED THAT THE CIT(A) ALSO HAS NOT TAKEN COGNIZANCE OF THIS FACTUAL DIFFI CULTY. 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. PRIMA FACIE IT APPEARS THAT THERE IS A DIF FERENCE OF SERVICE TAX RETURNS WHICH WAS NOT PROPERLY VERIFIED BY THE ASSESSING OF FICER. THEREFORE, WE ARE REMANDING BACK THE ISSUE TO THE FILE OF THE ASSESSI NG OFFICER FOR PROPER ADJUDICATION AFTER TAKING COGNIZANCE OF THE EVIDENC E PRODUCED BY THE ASSESSEE. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF JUNE, 2021. SD/- SD/- (B. R. R. KUMAR) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEM BER DATED: 29/06/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 4 ITA NO. 385/DEL/2020 ASSISTANT REGISTRAR ITAT NEW DELHI