ACIT, New Delhi V. Sh. Anurag Birla, New Delhi

ITA 4072/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6489 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 15-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 01-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI R.S. SYAL, AM & SHRI K.N. CHARY, JM ITA NO.4072/DEL/2013 ASSESSMENT YEAR : 2009-10 ACIT, CIRCLE-24(1), NEW DELHI. VS. ANURAG BIRLA, C-37, HAUZ KHAS, NEW DELHI. PAN: AADPB3556B ITA NO.3974/DEL/2013 ASSESSMENT YEAR : 2009-10 ANURAG BIRLA, C-37, HAUZ KHAS, NEW DELHI. PAN: AADPB3556B VS. ACIT, CIRCLE-24(1), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SANDEEP SAPRA, ADVOCATE DEPARTMENT BY : SHRI S.K. JAIN, DR DATE OF HEARING : 15.12.2016 DATE OF PRONOUNCEMENT : 16.12.2016 ITA NOS.4072&3974/DEL/2013 2 ORDER PER R.S. SYAL, AM: THESE TWO CROSS APPEALS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE - ARE DIRECTED AGAINST THE ORDER DATED 25.4 .2013 PASSED BY THE CIT(A) IN RELATION TO THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEES APPEAL IS A RECALLED MATTER INASM UCH AS THE EARLIER EX PARTE ORDER WAS SUBSEQUENTLY RECALLED BY THE TRIBUNAL VI DE ITS LATER ORDER DATED 13.5.2006. 3. FIRST GROUND OF THE REVENUES APPEAL IS AGAINST ACCEPTANCE OF ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF INC OME-TAX RULES, 1962. THE LD. DR COULD NOT POINT OUT ANY ADDITIONAL EVIDE NCE ENTERTAINED BY THE LD. CIT(A). THIS GROUND IS, THEREFORE, DISMISS ED. 4. GROUND NOS. 1 AND 2 OF THE ASSESSEES APPEAL AND GROUND NO. 2 OF THE REVENUES APPEAL ARE AGAINST THE DISALLOWANCE O F INTEREST U/S 36(1)(III). THE ASSESSEE DEBITED A SUM OF RS.56,22 ,619/- UNDER THE HEAD INTEREST PAID. ON PERUSAL OF DETAILS, IT WAS OBS ERVED THAT THE INTEREST OF RS.15,23,177/- WAS PAID TO HDFC BANK IN RESPECT OF PROPERTY AT SAKET ITA NOS.4072&3974/DEL/2013 3 AND A FURTHER SUM OF RS.11,89,372/- WAS PAID TO HDF C BANK FOR ACQUISITION OF PROPERTY AT GRAND MALL, GURGAON. IN THE ABSENCE OF ANY SATISFACTORY EXPLANATION GIVEN BY THE ASSESSEE, THE AO MADE AN ADDITION FOR A SUM TOTALING TO RS.27,12,549/-. THE LD. CIT(A ), AFTER REPRODUCING RELEVANT PARTS OF HIS ORDER FOR THE IMMEDIATELY PRE CEDING ASSESSMENT YEAR, ALLOWED PART RELIEF. BOTH THE SIDES ARE IN A PPEAL ON THEIR RESPECTIVE STANDS. 5. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD, WE FIND THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE AY 2008-09. THE TRIBUNAL, VIDE ITS ORDER DATED 30.6.2015, IN ITA NO .2105 & 2380/DEL/2012 HAS DEALT WITH THE ISSUE BY RECORDING FINDINGS AT PARA 10 OF ITS ORDER. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THE GROUND FOR THIS YEAR ARE, MUTATIS MUTANDIS, SIMILAR TO THOSE OF THE PRECEDING YEAR. FOLLOWING THE VIEW TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDIN G ASSESSMENT YEAR, WE SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTE R TO THE FILE OF THE LD. ITA NOS.4072&3974/DEL/2013 4 CIT(A) FOR DEALING WITH THIS ISSUE IN CONSONANCE WI TH THE VIEW TAKEN BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR PRECEDI NG YEAR. THIS RESTORATION IS MADE TO THE LD. CIT(A) INSTEAD OF TH E AO FOR THE REASONS IN THE FOLLOWING PARAS, WHICH CALL FOR RESTORATION ONL Y TO THE LD. CIT(A). 6. GROUND NOS. 3, 4 AND 5 OF THE ASSESSEES APPEAL ARE AGAINST THE ENHANCEMENT MADE BY THE LD.CIT(A) UNDER THE HEAD D IWALI EXPENSES FROM RS.15,234/- TO RS.86,172/-; UNDER THE HEAD E LECTRICITY AND WATER CHARGES FROM RS.49,864/- TO RS.4,98,641/-; AND UN DER THE HEAD BUSINESS PROMOTION EXPENSES FROM RS.72,449/- TO R S.1,04,309/-. THE LD. AR CONTENDED THAT ENHANCEMENT NOTICE WAS NOT GI VEN BY THE LD. CIT(A) BEFORE MAKING THE ENHANCEMENT. THE LD. DR DI D NOT HAVE ANY CASE RECORD TO INDICATE WHETHER OR NOT ANY ENHANCEM ENT NOTICE WAS ISSUED BY THE LD. CIT(A). UNDER THE GIVEN CIRCUMSTA NCES, WE SET ASIDE THE IMPUGNED ORDER ON THIS SCORE AND REMIT THE MATT ER TO THE FILE OF THE LD. CIT(A) FOR EXAMINING THE ASSESSEES CONTENTION IN THIS REGARD AND DECIDING THIS ISSUE IN ACCORDANCE WITH THE LAW, AFT ER ALLOWING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ITA NOS.4072&3974/DEL/2013 5 7. GROUND NO.7 OF THE ASSESSEES APPEAL IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF RS.2,13,364/- UNDER THE HEAD VEHIC LE RUNNING AND MAINTENANCE, INTEREST PAID ON CAR LOAN, DEPRECI ATION AND TELEPHONE EXPENSES BEING PERSONAL EXPENSES. THE FACTS APROP OS THIS ISSUE ARE THAT THE AO MADE 10% DISALLOWANCE OUT OF THE ABOVE REFER RED EXPENSES ON ACCOUNT OF PERSONAL USE AS THE ASSESSEE COULD NOT A DDUCE NECESSARY EVIDENCE IN SUPPORT OF THE USER OF THESE FACILITIES EXCLUSIVELY FOR THE BUSINESS PURPOSES, WHICH CAME TO BE APPROVED IN THE FIRST APPEAL. IN THE GIVEN FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSID ERED OPINION THAT THE LD. CIT(A) WAS JUSTIFIED IN APPROVING SUCH DISALLOW ANCE ON ACCOUNT OF THE PERSONAL USER BY THE ASSESSEE. 8. GROUND NOS.3, 4 AND 5 OF THE REVENUES APPEAL AR E AGAINST DELETION OF DISALLOWANCES ON ACCOUNT OF REPAIRS AN D MAINTENANCE, PRINTING & STATIONERY AND PRINTING CHARGES, WHI CH WERE MADE BY THE AO @ 10% BECAUSE OF THE FAILURE OF THE ASSESSEE TO SUPPORT NECESSARY EVIDENCE IN SUPPORT OF SUCH EXPENSES. THE LD. CIT( A) DELETED THE ADDITION. THE REVENUE IS IN APPEAL AGAINST SUCH DE LETION. ITA NOS.4072&3974/DEL/2013 6 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS SEEN THAT THE DISALLOWANC E WAS MADE @ 10% OF THESE EXPENSES FOR THE REASON THAT THE ASSESSEE DID NOT FURNISH BILLS AND VOUCHERS IN RESPECT OF THESE EXPENSES. NO EVIDENCE HAS BEEN PLACED EVEN BEFORE THE TRIBUNAL SUPPORTING THESE EXPENSES WITH NECESSARY BILLS AND VOUCHERS. AS SUCH, WE RESTORE THESE DISALLOWAN CES MADE BY THE AO, THEREBY OVERTURNING THE IMPUGNED ORDER ON THESE ISS UES. THESE GROUNDS ARE ALLOWED. 10. THE ONLY OTHER GROUND TAKEN BY THE REVENUE IN I TS APPEAL IS AGAINST THE DELETION OF DISALLOWANCE ON ACCOUNT OF `TRAVELL ING EXPENSES. THE FACTS OF THIS GROUND ARE THAT THE ASSESSEE DEBITED TRAVELLING EXPENSES AT RS.11,39,910/-. ON PERUSAL OF THE DETAILS, IT WAS OBSERVED THAT A SUM OF RS.9,48,451/- PERTAINED TO FOREIGN TRAVELLING EXPEN SES. ONLY ONE COPY OF THE BILL WAS FILED WHICH SHOWED THAT THE ASSESSEE W AS ACCOMPANIED BY HIS WIFE. IN THE ABSENCE OF THE REMAINING BILLS/VO UCHERS IN RESPECT OF FOREIGN EXPENSES, THE AO DISALLOWED 30% OF FOREIGN TRAVEL EXPENSES AND 10% OF DOMESTIC TRAVEL EXPENSES. THIS RESULTED INT O DISALLOWANCE OF ITA NOS.4072&3974/DEL/2013 7 RS.3,03,681/-, COMPRISING OF RS.2,84,535/- OUT OF FOREIGN TRAVEL EXPENSES AND RS.19,146/- OUT OF DOMESTIC TRAVEL EXP ENSES. THE LD. CIT(A) RESTRICTED THE ADDITION TO RS.2,41,177/-, AG AINST WHICH THE REVENUE HAS COME UP IN APPEAL BEFORE US. 11. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE LD. CIT(A) HAS ANALYSED THE DETAILS OF TRAVELLING EXPENSES ITEM-WISE. THE LD. DR COULD NOT POINT OUT ANY INFIRMITY IN THE SAID ANALYSIS MADE BY THE LD. CIT( A) WHICH HAS BEEN RECORDED ON PAGE 6 OF THE IMPUGNED ORDER. AS SUCH, WE ARE NOT INCLINED TO DISTURB THE VIEW TAKEN BY THE LD. CIT(A) ON THIS ISSUE. THIS GROUND FAILS. 12. IN THE RESULT, BOTH THE APPEALS ARE PARTLY AL LOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 16.12.201 6. SD/- SD/- [K.N. CHARY] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 16 TH DECEMBER, 2016. DK ITA NOS.4072&3974/DEL/2013 8 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.