Shri Pawan Kumar Gupta, New Delhi V. ITO, New Delhi

ITA 4744/DEL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1717 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 07-10-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 06-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V R SONBHADRA
• Keywords: Unexplained investment; Depreciation
• Section: 142(1); 234B; 148; 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.- 4744/DEL/2012 (ASSESSMENT YEA R-2001-02) PAWAN KUMAR GUPTA E-14, BHAGWAN DASS NAGAR, EAST PUNJABI BAGH NEW DELHI AAIPG1107C (APPELLANT) VS ITO WARD-25(3) NEW DELHI (RESPONDENT) APPELLANT BY SH. GAUTAM JAIN, CA RESPONDENT BY SH. V. R. SONBHADRA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST ORDER DATED 10/07/2012 PASSED BY THE LD. CIT(A), XVIII, NEW DELHI BY THE ASSESSEE. 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) XVIII, NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN SUSTAINING AN ADDITION OF RS.15,18,600/- REPRESENTING THE WITHDRAWALS MADE FR OM BANK ACCOUNT NO. CA 2402, UCO BANK, PUNJABI BAGH. DATE OF HEARING 07.10.2015 DATE OF PRONOUNCEMENT 09.10.2015 1.1 THAT FINDING BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT, M/S GAURAV TRANSPORT COMPANY OWNED ANY TRUCKS DURI NG THE YEAR UNDER CONSIDERATION OR HAD LEASED ANY TRUCKS DURING THE YEAR OR WAS RECEIVING ANY INCOME FROM PLYING OF TRUCKS DURING T HE YEAR; AND FURTHER THAT, INCOME OF M/S GAURAV TRANSPORT COMPANY HAS NO T BEEN REFLECTED BY THE APPELLANT IN ITS RETURN OF INCOME IS ARBITR ARY, CONTRARY TO RECORD AND WHOLLY UNJUSTIFIED. 1.2 THAT FURTHER WHILE UPHOLDING THE ADDITION, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS INCORRECTLY HELD THAT TOT AL ADDITION OF EITHER THE DEPOSIT OR THE WITHDRAWAL, COULD HAVE BEEN MADE BY THE ASSESSING OFFICER THOUGH HE HAS DIFFERENTIATED THE ADDITION INTO TO DIFFERENT COMPONENTS I.E. ONE ON ACCOUNT OF WITHDRAWALS AND O NE ON ACCOUNT OF DEPOSITS., INFACT ON THE SAID BASIS THEN ADDITION OUGHT TO HAVE BEEN RESTRICTED TO RS.9,46,000/- AND NOT RS.15,18,600/- AND AS SUCH, ADDITION SUSTAINED IN ANY CASE IS EXCESSIVE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) H AS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWA NCE OF RS.1,44,000/- REPRESENTING LEASE CHARGES PAID BY TH E APPELLANT. 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE DISALLOWA NCE OF RS.37,450/- AND RS.71,663/- REPRESENTING EXPENDITURE ON MAINTEN ANCE OF VEHICLES AND DEPRECIATION INCURRED AND CLAIMED BY THE APPELL ANT. 3. 1 THAT MERE FACTS THAT TRUCKS WERE REGISTERED IN TH E NAME OF THE APPELLANT IN THE SUCCEEDING YEAR COULD NOT BE A GRO UND TO DENY THE CLAIM OF THE APPELLANT. 4. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF I NTEREST U/S 234A OF THE ACT AND U/S 234B OF THE ACT. IT IS THEREFORE, PRAYED THAT, IT BE HELD THAT, ADDITION/DISALLOWANCES MADE BY LD.CIT(A) ASSESSING OFFICER AND, SUSTAINED BY THE LD.CIT(A) TOGETHER WITH INTEREST M AY KINDLY BE DELETE AND, APPEAL OF THE APPELLANT BE ALLOWED. 3. THE ASSESSING OFFICER IN THE PRESENT CASE HAS PA SSED THE ASSESSMENT ORDER U/S 144 OF THE INCOME TAX ACT ON 16/3/2005. THE ASSESSEE FILED APPEAL AGAINST THE SAID ORDER WITH THE LD. CIT(A) ON 30/9/ 2005. THE LD. CIT(A) DISMISSED THE SAID APPEAL ON 11/9/2006 AS IT WAS TI ME BARRED. THE ASSESSEE FILED APPEAL BEFORE ITAT. THE ITAT HAS SET ASIDE TH E ORDER OF THE LD. CIT(A) VIDE ITS ORDER DATED 13/2/2007 AND DIRECTED THE CIT(A) T O DECIDE THE APPEAL OF THE ASSESSEE ON MERITS. IN COMPLIANCE TO THE DIRECTION S THE ORDER DATED 10/07/2012 PASSED BY THE CIT(A) WHICH UNDER CHALLENGE IN THE PRESENT APPEAL. 4. THE FACTUAL MATRIX OF THE CASE IS THAT, THE RETU RN OF INCOME FOR A.Y 2001- 02 WAS FILED ON 28/1/2002 BY THE ASSESSEE. THE ASS ESSEE IS THE PROPRIETOR OF TWO FIRMS NAMELY M/S SAURAV ENTERPRISES AND M/S GAU RAV TRANSPORT COMPANY. A PERUSAL OF THE RETURN OF THE INCOME FOR THE A.Y 2001-02 REVEALS THAT THE ASSESSEE HAS NOT SHOWN ANY INCOME FROM M/S GAURAV TRANSPORT COMPANY AND THUS INCOME LIABLE TO BE TAXED FROM M/S GAURAV TRANSPORT COMPANY HAS ESCAPED ASSESSMENT FOR THE A.Y 2001-02 . A RETURN OF INCOME HAS BEEN FILED IN THE NAME OF SH. RAKESH KUMAR AS P ROPRIETOR OF M/S GAURAV TRANSPORT COMPANY IN THE STATEMENT THE ASSESSEE ADM ITTED THAT HE HAS NO TRUCKS IN HIS OWN NAME OR IN THE NAME OF THE FIRM W HERE AS HE IS CLAIMING THAT HE OWN/USES TRUCKS IN THE RETURN OF INCOME FOR THE A.Y 2001-02. THE ASSESSING OFFICER ISSUED NOTICE U/S 148 OF THE INCO ME TAX ACT, 1961. THERE WAS NO INCOME TAX RETURN FILED BY THE ASSESSEE IN COMPL IANCE TO NOTICE U/S 148, BUT THE ACKNOWLEDGEMENT OF THE SERVICE WAS THEIR ON THE RECORD. THEREAFTER, NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE WAS SERVED ON 1 1/9/2004 FOR HEARING. ON 27/9/2004, THE PROCEEDINGS WERE NOT ATTENDED BY THE ASSESSEE. THEREFORE, THE ASSESSMENT ORDER U/S 144 OF THE ACT WAS PASSED BY T HE ASSESSING OFFICER . 5. THE ASSESSING OFFICER MADE DISALLOWANCE OF LEASE CHARGES OF RS.1,44,000/-, VEHICLE EXPENSES OF RS.37,450/- AND DEPRECIATION OF RS.71,663/-ON THE ADDING CREDITS OF UCO BANK OF RS. 9,10,950/-, CASH OF RS.9,46,000/- AND TRANSACTION OF RS.15,68,561/- AND THUS THERE WAS INCREASE IN THE ASSESSED INCOME TO RS.38,04,380/- AS AGAINST RETURN INCOME OF RS.1,25,750/-. THE ASSESSING OFFICER HAS MADE ADD ITION IN RESPECT OF UNEXPLAINED CASH DEPOSIT TO THE EXTENT OF RS.9,10,9 50/- AND FURTHER ADDED IN RESPECT OF WITHDRAWALS BEING UNEXPLAINED INVESTMENT TO THE INCOME OF THE ASSESSEE. 6. THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE ASSESSEE SUBMITTED THAT THE APPELLANT VIDE LETTER DATED 24/8/2006 CLAI M THAT THE DEPOSITS OF RS.9,10,950/- MADE IN THE UCO BANK WERE FULLY EXPLA INED AND THE DETAILED CHART WAS GIVEN TO CIT(A). THE CIT(A) CONFIRMED T OTAL ADDITION OF RS.15,18,600/- AGAINST RS.9,10,950/- AND RS.9,46,00 0/- I.E. RS. 18,56,950/-. 7. THE AR SUBMITTED THAT THE ASSESSEE WAS HAVING TW O BUSINESSES THAT OF SAURABH ENTERPRISES WHICH WAS A HANDLING AGENT OF B ENANI CEMENT AND SECONDLY GAURAV TRANSPORT WHICH WAS DEALING IN TRAN SPORTATION OF CEMENT. THE AR FURTHER SUBMITTED THAT SAURABH ENTERPRISES W AS MAINTAINING ITS BOOKS OF ACCOUNTS AND GAURAV TRANSPORT COMPANY WAS NOT MA INTAINING ANY BOOKS OF ACCOUNTS. THE AR POINTED OUT THE STATEMENTS OF BANK ACCOUNT OF GAURAV TRANSPORT AT PAGE 51-52 OF THE PAPER BOOK WHICH HAS GIVEN THE DETAILS OF THE DEPOSITS DURING THE YEAR 1/4/1995 TO 23/09/2003. T HE AR EXPLAINED THAT THE UNDISCLOSED INVESTMENT TAKEN INTO ACCOUNT BY THE AS SESSING OFFICER HAVE BEEN REFLECTED PROPERLY IN THE BANK ACCOUNTS OF THE ASSE SSEE AND THE SAME WAS FULLY EXPLAINED BY THE ASSESSEE BEFORE THE LD. CIT(A). T HE AR FURTHER SUBMITTED THAT THE DOCUMENTS WHICH WERE PLACED BEFORE THE LD. CIT( A) SHOULD HAVE BEEN TAKEN INTO ACCOUNT BY THE LD. CIT(A). 8. THE DR TOTALLY RELIED ON THE ASSESSING OFFICERS ORDER AS WELL AS LD. CIT(A)S ORDER. 9. WE HAVE PERUSED THE RELEVANT DOCUMENTS AND HEARD BO TH THE PARTIES. IT IS OBSERVED THAT THE ASSESSEE HAVE PRODUCED VARIOUS DOCUMENTS/E VIDENCES IN SUPPORT OF HIS CONTENTIONS BEFORE THE CIT(A). THE C IT(A) HAS NOT CONSIDERED THE SAME NEITHER THE ASSESSING OFFICER HAS OPPORTUNITY TO DEAL THE SAME WHILE PASSING THE ASSESSMENT ORDER. UNDER THESE CIRCUMST ANCES, WE ARE OF THE CONSIDERED OPINION THAT IF THE IMPUGNED ORDER IS SE T ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR MAKING A DE NOVO ASSESSMENT IT WILL BE APPROPRIATE. WE ORDER ACCORDINGLY. NEEDLES S TO SAY, THE ASSESSEE WILL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING IN SUCH FRESH ASSESSMENT PROCEEDINGS. 10. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED 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 07.10.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 08.10.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 08.10.2015 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.