ITO, Ghaziabad V. Shri Dinesh Arneja Prop., Ghaziabad

ITA 4769/DEL/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2694 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-03-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 02-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARCHANA S AWASTHI
• Assessee Lawyers: ASHWANI TANEJA
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B : NEW DELHI) SHRI R.P. TOLANI, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.4769/DEL./2011 (ASSESSMENT YEAR : 2008-09) ITO, WARD 1 (2), VS. SHRI DINESH ARNEJA, GHAZIABAD. PROP. M/S. HEM RAJ & SONS, 309, LOHA MANDI, GHAZIABAD. (PAN : ABQPA1031Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHWANI TANEJA, ADVOCATE REVENUE BY : MS. ARCHANA S. AWASTHI, DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT (APPEALS), GHAZIABAD DATED 23.08.2011. 2. THE RETURN OF INCOME WAS FILED DECLARING INCOME AT RS.2,10,720/- ON 29.09.2008. THE ASSESSEE IS A WHOLESALE TRADER OF IRON AND STEEL. THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 28.12.2010. THE REVENUE IS IN APPEAL BY TAKING THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS BY NOT APPRECIATING THAT EXPENSES OF RS.17 LACS WAS NOT AN ALLOWABLE EXPENSES AS PER PROVISIONS OF SECTION 40A(3) OF THE I.T. ACT. ITA NO.4769/DEL./2011 2 2. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS BY NOT APPRECIATING THAT IN THE CASE OF COMMISSIONER O F INCOME TAX, AMRITSAR-II VS. KISHAN CHAND MAHESHWARI DASS, 121 ITR 232, HON'BLE PUNJAB & HARYANA HIGH COURT HAS HELD T HAT PROVISIONS OF SECTION 40A(3) OF THE I.T. ACT ARE AT TRACTED EVEN IN CASES OF PAYMENTS BY BOOK ADJUSTMENTS. 3. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS BY NOT APPRECIATING THAT THE ASSESSEE'S CASE IS NOT CO VERED BY ANY OF THE EXCEPTIONS MENTIONED IN RULE 6DD, WHEREBY EXCEP TION TO SECTION 40A(3) OF THE I.T. ACT. HAVE BEEN EXPLAINED . 4. THAT THE LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS BY DELETING THE ADDITION OF RS.5,00,000/- ON ACCOUNTS OF TRANSACTION OUT OF BOOKS, WITHOUT APPRECIATING THE FACTS OF THE CASE MENTIONED BY THE ASSESSING OFFICER IN HIS ASSESSMEN T ORDER AND THE REMAND REPORT. 5. HENCE ORDER OF THE LD. CIT (A) DESERVES TO BE SE T-ASIDE AND THE ORDER OF THE AO BE RESTORED. 3. GROUND NOS.1 TO 3 ARE RELATED TO DELETING THE AD DITION OF RS.17 LACS U/S 40A(3) OF THE INCOME-TAX ACT, 1961. 4. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE F IND THAT ASSESSEE HAS MADE PAYMENT OF RS.17 LACS BY ACCOUNT PAYEE CHEQUES IN FAVOUR OF JINDAL STEEL ON ACCOUNT OF M/S. AMBA STEELS. THEREFORE, W E SUSTAIN THE FINDING OF THE CIT (A) THAT ASSESSEE HAS MADE PAYMENTS THROUGH ACCOUNT PAYEE CHEQUES. FURTHER THIS PAYMENT WAS MADE TO JINDAL STEELS ON B EHALF OF AMBA STEELS AND THE ADJUSTMENT HAS BEEN MADE THROUGH JOURNAL ENTRIE S. THE PAYMENT HAS NOT BEEN MADE IN CASH OR BY ANY BEARER CHEQUES, THEREFO RE, THERE IS NO QUESTION OF INVOKING THE PROVISIONS OF SECTION 40A(3). IN VIEW OF THESE FACTS, WE FIND NO ITA NO.4769/DEL./2011 3 FAULT IN THE ORDER OF THE CIT (A) AND WE SUSTAIN TH E SAME. GROUND NOS.1 TO 3 ARE DISMISSED. 5. GROUND NO.4 IS AGAINST DELETING THE ADDITION OF RS.5 LACS ON ACCOUNT OF TRANSACTION CLAIMED BY THE ASSESSEE OUT OF BOOKS. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE FIND THAT THERE WAS AN INAD VERTENT CLERICAL MISTAKE IN MENTIONING THE CHEQUES NUMBERS. THE ASSESSEE SIMPL Y MENTIONED THE CHEQUES NO.097779 INSTEAD OF 097776. THIS ERROR HA S BEEN EXPLAINED BY THE ASSESSEE BEFORE THE CIT (A). IN OUR CONSIDERED VIE W, THE CIT (A) HAS RIGHTLY DELETED THE ADDITION AS THERE WAS NO DISCREPANCY. THEREFORE, ON THIS ISSUE, WE SUSTAIN THE ORDER OF THE CIT (A). GROUND NO.4 IS D ISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF APRIL, 2013. SD/- SD/- (R.P. TOLANI) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 30 TH DAY OF APRIL, 2013 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), GHAZIABAD. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.