ACIT, New Delhi V. M/s. Planet Enterprises, New Delhi

ITA 4217/DEL/2011

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1693 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 06-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 20-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V R SONBHADRA
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.- 4217/DEL/2011 (ASSESSMENT YEA R-2007-08) ACIT CIRCLE -13 (1), ROOM NO. 185A, C.R. BUILDING, I.P. ESTATE NEW DELHI (APPELLANT) VS PLANET ENTERPRISES 1205, 12 TH FLOOR, AKASHDEEP BLDG, BARAKHAMBA ROAD, NEW DELHI AAHFP7213P (RESPONDENT) APPELLANT BY SH. V. R. SONBHADRA, SR. DR RESPONDENT BY SH. SANJAY AGRAWAL, C.A ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST THE ORDER DATED 9/6/20 11 PASSED BY THE LD. CIT(A) XXVI, NEW DELHI BY THE REVENUE. THE GROUNDS OF APPEAL ARE AS FOLLOWS: (A) ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CI T(A) HAS ERRED IN ALLOWING ADDITIONAL GROUNDS OF APPEAL BY T HE ASSESSEE IN VIEW OF THE FACT THAT THE ASSESSEE WAS NOT PREVENTED BY SUFFICIENT CAUSE TO SUBMIT THE SAME DU RING THE ASSESSMENT PROCEEDINGS. DATE OF HEARING 06.10.2015 DATE OF PRONOUNCEMENT 09 .10.2015 (B) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD . CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY A O U/S 144 AS BEST JUDGMENT ASSESSMENT AT RS.35 LAKH AND DIRECTIN G TO A O TO ACCEPT THE INCOME OF RS. 16,20,747/- AS DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. 2. THE ASSESSEE FILED ITS RETURN ON 2/11/2007 DECLA RING INCOME OF RS.16,20,747/-. CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) DATED 18/7/2008 WAS ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S 143(2) AND U/S 142(1) DATED 17/8/2009 WAS ONCE AGAIN GIVEN TO THE ASSESSEE ALONG WITH QUESTIONNAIRE. HOWEVER, ON THE DATE FIXED ASSESSEE DID NOT ATTEND THE HEARING. ON 3/12/2009 SHRI MANOJ KUMAR ASSESSEES REPRESENTA TIVE ATTENDED THE HEARING AND REQUESTED FOR ADJOURNMENT TO 4/12/2009. ON THE SAID DATE, NO ONE ATTENDED THE HEARING. THEREAFTER ANOTHER QUEST IONNAIRE U/S 142(1) WAS ISSUED TO THE ASSESSEE. ON 10/12/2009 THE CASE WAS ADJOURNED TO 16/12/2009. ON 16/12/2009 SHRI MANOJ KUMAR ASSESSE S REPRESENTATIVE ONCE AGAIN ATTEND THE HEARING. THE ASSESSING OFFICER R ECORDED IN ASSESSMENT ORDER DATED 21.12.2009 THAT ..IN THE EVENT OF NON FURNIS HING OF THE REQUIRED DETAILS BY THE NEXT DATED OF HEARING AND ALSO IN CASE OF NO N PRODUCTION OF BOOKS OF ACCOUNT FOR EXAMINATION I SHALL BE CONSTRAINED TO C OMPLETE THE ASSESSMENT AS BEST JUDGMENT ASSESSMENT AS PER THE PROVISION OF SE CTION 144 OF THE INCOME TAX ACT. THE ASSESSING OFFICER OBSERVED THAT DUR ING THE FINANCIAL YEAR UNDER CONSIDERATION THE ASSESSEE RECEIVED CONSULTANCY FEE AMOUNTING TO RS.80,80,402/- AND MAKING ADJUSTMENT FOR THE VARIOU S EXPENSES DEBITED TO THEIR PROFIT AND LOSS ACCOUNT. THE ASSESSEE DECLARE D THE TOTAL INCOME OF RS.16,20,747/-, AND DEBITED THE PROFIT AND LOSS ACC OUNT WITH HUGE EXPENSES UNDER THE HEAD REPAIR AND MAINTENANCE, TOUR AND TRA VEL, INTEREST ON CAR LOAN, SALARY AND WAGES ETC. THE ASSESSING OFFICER HELD THAT IN THE ABSENCE OF THE COMPLETE DETAILS HAVING FURNISHED IN RESPECT OF THE OCCURRENCE OF THESE EXPENSES THE GENUINENESS AS WELL AS ADEQUACY OF THE SE EXPENSES WAS NOT OPEN FOR VARIATION. THEREFORE, THE ASSESSING OFFICER E STIMATED THE INCOME OF THE ASSESSEE AT RS.35 LACS. 3. THE DR SUBMITTED THAT THE ASSESSMENT ORDER HAS B EEN PROPERLY PASSED BY THE ASSESSING OFFICER AS THERE WAS NO SATISFACT ORY ANSWERS TO THE QUERIES RAISED BY THE ASSESSING OFFICER AND THE ASSESSEE D ID NOT FURNISH BOOKS OF ACCOUNT ALONG WITH OTHER MATERIALS DURING THE COURS E OF ASSESSMENT PROCEEDINGS. THE DR FURTHER HELD THAT LD. CIT(A)S FINDING AT PAGE 13 OF THE ORDER WAS TOTALLY ERRONEOUS AND IS NOT TENABLE. 4. THE AR SUBMITTED THAT THE ASSESSING OFFICER HAS NOT TAKEN PROPER EXPENDITURE AND IN-FACT THE DETAILS WERE PROPERLY F URNISHED BEFORE THE ASSESSING OFFICER. THE AR SUBMITTED THAT ASSESSEE S NON-ATTENDANCE OF THE HEARING BEFORE THE ASSESSING OFFICER WAS DUE TO SER IOUS ACCIDENT OF THE POWER OF ATTORNEY HOLDER AND THE SAID MEDICAL CERTIFICATE WA S FURNISHED TO THE SECOND POWER OF ATTORNEY HOLDER. THE AR FURTHER SUBMITTED THAT THE FINDING GIVEN BY THE LD. CIT(A) ARE PROPER AND JUST AND PRAYED THAT THE APPEAL OF THE REVENUE BE DISMISSED. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE AO KEPT ON REQUESTI NG THE ASSESSEE TO FURNISH THE NECESSARY DETAILS FOR ENABLING HIM TO COMPLETE THE ASSESSMENT, BUT THE ASSESSEE DID NOT PROPERLY COMPLY WITH. HOWEVER, THE LD. CIT(A) HAS DELETED THE ADDITION BY TAKING INTO CONSIDERATION SEVERAL DOCUM ENTS/EVIDENCE, WHICH WERE NOT FURNISHED BEFORE THE AO, WITHOUT GIVING ANY OPP ORTUNITY TO THE AO IN TERMS OF RULE 46A. AS SUCH, HIS ACTION CANNOT BE COUNTENA NCED. UNDER THE GIVEN CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THA T THE ENDS OF JUSTICE WOULD MEET ADEQUATELY, IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE AO FOR MAKING A DE NOVO ASSESSME NT, WE ORDER ACCORDINGLY. NEEDLESS TO SAY, THE ASSESSEE WILL BE ALLOWED A REA SONABLE OPPORTUNITY OF HEARING IN SUCH FRESH ASSESSMENT PROCEEDINGS. 6. IN RESULT, THE REVENUES APPEAL IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09 TH OF OCTOBER, 2015. SD/- SD/- (R.S. SYAL) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09/10/2015 R. NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 06.10.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 06.10.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .0810.2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 09 .10.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 09 .10.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.