DDIT (E), Delhi V. M/s Govt. Public Sector Employees Co., New Delhi

ITA 3868/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3634 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 11-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D V TANEJA
• Assessee Lawyers: SANJAY AWASTHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.3868/DEL/2009 ASSESSMENT YEAR : 2004-05 DY. DIRECTOR OF INCOME TAX (E), INV. CIRCLE-1, NEW DELHI. VS. M/S GOVT. PUBLIC SECTOR EMPLOYEES CO-OP. GROUP HOUSING SOCIETY LTD., 722, POCKET GH.14, PASCHIM VIHAR, NEW DELHI 110 087. PAN : AAAAG2249L (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANJAY AWASTHI, SR. DR REVENUE BY : SHRI D.V. TANEJA, CA ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF THE CIT (A) DATED 30 TH JUNE, 2009 FOR ASSESSMENT YEAR 2004-05. GROUNDS O F APPEAL READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT (A) HAS ERRED IN DIRECTING THE A.O. TO RE-COMPU TE THE LOSS AT RS.17,35,125/- IGNORING THE FACT THAT THE OBJECT IONS POINTED OUT BY THE AUDITORS, IN THE AUDIT REPORT FOR THE RE LEVANT A.Y. REMAINED UN-EXPLAINED AND BECAUSE THE AR OF THE ASS ESSEE DID NOT PRODUCE THE BOOKS OF ACCOUNTS ALONG WITH SU PPORTING BILLS/VOUCHERS, THEREFORE, THIS PREVENTED THE A.O. FROM EXAMINING, IN TOTALITY, THE ACCOUNTS OF THE ASSESSE E TO THE SATISFACTION OF THE A.O. THE LD. CIT (A) GROSSLY E RRED IN ALLOWING THE APPEAL OF THE ASSESSEE DESPITE THE FAC T THAT NO DETAILS, WHATSOEVER, MOST RELEVANT TO ASSESSMENT PROCEEDINGS, WERE FILED DURING ASSESSMENT PROCEEDIN GS. ITA NO.3868/DEL/2009 2 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE R IGHT TO AMEND, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. IT IS MENTIONED IN THE ASSESSMENT ORDER THAT BOO KS OF ACCOUNT WERE NOT PRODUCED BY THE ASSESSEE AND, THEREFORE, THE ASSESS ING OFFICER HAS MENTIONED THAT HE WAS LEFT WITH NO ALTERNATIVE, BUT TO COMPLE TE THE ASSESSMENT PROCEEDINGS AND, IN THIS VIEW OF THE SITUATION, LOSS RETURNED B Y THE ASSESSEE WAS IGNORED AND INCOME WAS ASSESSED AT NIL. 3. BEFORE THE CIT (A) IT WAS THE CLAIM OF THE ASSES SEE THAT THE ASSESSING OFFICER HAS WRONGLY OBSERVED THAT BOOKS OF ACCOUNT WERE NOT PRODUCED AS THE BOOKS OF ACCOUNT WERE DULY PRODUCED. THE FOLLOWING GROUNDS WERE RAISED BY THE ASSESSEE:- 1. THE LD. A.O. HAS ERRED IN FACTS AND IN LAW IN CO MPLETING ASSESSMENT AT NIL FIGURE AS AGAINST RETURNED LOSS O F RS.17,35,125/- SUPPORTED BY AUDITED ACCOUNTS. 2. THAT THE AVERMENT THAT ASSESSEE SOCIETY HAS NOT FILED ANY OTHER DETAILS EXCEPT SUBMISSIONS MADE ON 4.11.2006 AND 20.11.2006 AND BOOKS NOT PRODUCED IS OPPOSED TO FAC TS AS BOOKS OF ACCOUNTS WERE DULY PRODUCED AND DETAILS AS ASKED FOR COMPLIED WITH AND COMPLETING ASSESSMENT AT NIL AS AGAINST RE TURNED LOSS OF RS.17,35,125/- IS BAD IN LAW. 4. LD. CIT (A) HAS DELETED THE ADDITION VIDE PARA 4 WHICH READ AS UNDER:- 4. I HAVE CONSIDERED THE SUBMISSIONS OF LD. AR O F THE APPELLANT AND THE MATERIAL BROUGHT BEFORE ME BY HIM AT TIME OF APPELLATE PROCEEDINGS. SINCE THE APPELLANT IS COOP ERATIVE SOCIETY AND ACCOUNTS ARE AUDITED BY GOVT. AUDITORS THERE CA N BE NO SCOPE OF CLAIMING BOGUS LOSS. THEREFORE, I AM CONVINCED THAT THE A.O HAS ERRED IN ASSESSING THE INCOME AT NIL IGNORING THE L OSS CLAIMED BY THE APPELLANT IN THE RETURN FILED BY HIM. THEREFOR E THE A.O. IS DIRECTED TO THE RECOMPUTED THE INCOME OF APPELLANT WHILE GIVING EFFECT TO THIS ORDER, AT A LOSS OF RS.17,35,125/- D ECLARED BY THE APPELLANT. ITA NO.3868/DEL/2009 3 5. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE. A SPECIFIC OBJECTION WAS TAKEN BY THE ASSESSING OFFICER THAT THE ASSESSEE DI D NOT PRODUCE THE BOOKS OF ACCOUNT. GROUND NO.2 FILED BY THE ASSESSEE BEFORE THE CIT (A) ALSO STATED THAT THE ASSESSING OFFICER WAS WRONG IN MENTIONING THAT THE BOOKS OF ACCOUNT WERE NOT PRODUCED AS THE BOOKS OF ACCOUNT WERE DULY PROD UCED. LD. CIT (A) HAS NOT RECORDED ANY FINDING THAT WHETHER OR NOT SUCH BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE ASSESSING OFFICER. HE HAS SIMPLY GONE B Y THE FACT THAT THE ACCOUNTS WERE AUDITED BY THE GOVERNMENT AUDITORS AND THERE W AS NO SCOPE OF CLAIMING BOGUS LOSS. IN OUR OPINION, SUCH FINDING OF CIT (A ) CANNOT BE SUSTAINED UNLESS A FINDING IS GIVEN THAT THE BOOKS OF ACCOUNTS WERE PR ODUCED BEFORE THE ASSESSING OFFICER. THE FACT THAT BOOKS OF ACCOUNT WERE AUDIT ED BY GOVERNMENT AUDITOR, IS NOT SUFFICIENT TO UPHOLD THE VERACITY OF THE BOOKS. THE ASSESSING OFFICER HAS THE RIGHT TO EXAMINE THE BOOKS OF ACCOUNT. IF THE BOOK S OF ACCOUNT ARE NOT PRODUCED BY THE ASSESSEE, THEN, THE ASSESSING OFFICER CAN FR AME BEST JUDGMENT ASSESSMENT. HOWEVER, THERE IS A DISPUTE THAT WHETH ER THE BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE ASSESSING OFFICER OR NOT A ND ORDER OF CIT (A) IS ALSO NOT CLEAR ABOUT THIS FACT. THEREFORE, WE ARE OF TH E OPINION THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFIC ER WITH A DIRECTION TO MAKE ASSESSMENT AFRESH AS PER PROVISIONS OF LAW. THE AS SESSEE IS DIRECTED TO PRODUCE BOOKS OF ACCOUNT BEFORE THE ASSESSING OFFIC ER IN THE RESTORED PROCEEDINGS. AFTER EXAMINING SUCH BOOKS OF ACCOUNT THE ASSESSING OFFICER WILL MAKE FRESH ASSESSMENT AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, FOR STATISTICAL PURPOSES THE APPE AL FILED BY THE REVENUE IS ALLOWED IN THE MANNER AFORESAID. . THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.20 10. [B.C. MEENA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 30.06.2010. DK ITA NO.3868/DEL/2009 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES