Sh. Sunil Kapoor, New Delhi V. ITO, New Delhi

ITA 4820/DEL/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5675 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 23-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Depreciation; Opportunity of being heard; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: E: NEW DELHI) BEFORE SHRI N.K SAINI, ACCOUNTANT MEMBER & SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO:- 4819/DEL/2015, ( ASSESSMENT YEAR: 2009-10) MS. KIRAN LATA KAPOOR, B-4/42, 1 ST FLOOR, SAFDARJUNG ENCLAVE, NEW DELHI 110029. VS. ACIT, THE CIRCLE 24(1), NEW DELHI. PAN NO: AAEPK2856J APPELLANT RESPONDENT ITA NO:- 4820/DEL/2015 (ASSESSMENT YEAR 2009-10) SH. SUNIL KAPOOR, B-4/42, 1 ST FLOOR, SAFDARJUNG ENCLAVE, NEW DELHI 110029 VS. ITO, WARD 24(1), NEW DELHI. PAN NO: AAEPK2857K APPELLANT RESPONDENT ASSESSEE BY : SH. RAJESH JAIN (CA) REVENUE BY : SH. S.R. SENAPATI (SR. DR) DATE OF HEARING : 20.06.2018. DATE OF PRONOUNCEMENT : 22/06/2018. ORDER 2 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. PER: KULDIP SINGH, JM SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID INTER CONNECTED APPEALS, THE SAME ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. 2. THE APPELLANTS, MS. KIRAN LATA KAPOOR, NEW DELHI AND MR. SUNIL KAPOOR, NEW DELHI (HEREINAFTER REFERRED TO AS THE ASSESSEES) BY FILING THE PRESENT APPEALS BEARING ITA NOS. 4819/DEL/2015 & 48 20/DEL/2015, SOUGHT TO SET ASIDE THE IMPUGNED ORDERS DATED 28.10 .2013 & 27.09.2013 RESPECTIVELY QUA ASSESSMENT YEAR 2009-10 PASSED BY LD. CIT(A)-XXIII, NEW DELHI ON THE IDENTICAL GROUNDS THAT:- GROUNDS OF ITA NO. 4819/DEL/2015 1. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN PASSING AN EX- PARTE ORDER DESPITE THE FACT THAT THE APPELLANT FIL ED AN APPLICATION FOR ADJOURNMENT ON VALID GROUNDS. 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN NOT DECIDING THE GROUNDS RAISED IN THE APPEAL ON MERIT AND SIMPLY DISMISSING THE APPEAL ON NON FILING WRITTEN SUBMISS IONS. WITHOUT PREJUDICE TO AFORESAID GROUNDS OF APPEAL, T HE GROUNDS OF APPEAL ON ITEM WISE ADDITIONS ARE AS UNDER: 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 6,39,263/-IN RESPECT OF TDS DED UCTED BY VARIOUS PARTIES, THOUGH THE INCOME WAS NOT ACCRUED DURING T HE YEAR UNDER CONSIDERATION. 4. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE DISALLOWANCE OF REPAIR & MAINTENANCE EXPENSES O F RS. 6,01,833/- WHICH WAS INCURRED BY THE ASSESSEE IN THE ROUTINE C OURSE OF BUSINESS. 3 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. 5. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILL EGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTEMPOR ARY JURISPRUDENCE. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD/ALTER AN Y/ALL GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. GROUNDS OF ITA NO.-4820/DEL/2015 1. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON FACTS IN PASSING AN EX-PARTE ORDER DESPITE THE FACT THAT THE APPELLA NT FILED AN APPLICATION FOR ADJOURNMENT ON VALID GROUNDS. 2. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND O N FACTS IN NOT DECIDING THE GROUNDS RAISED IN THE APPEAL ON MERIT AND SIMPLY DISMISSING THE APPEAL ON NON FILING WRITTEN SUBMISS IONS. WITHOUT PREJUDICE TO AFORESAID GROUNDS OF APPEAL, T HE GROUNDS OF APPEAL ON TEM WISE ADDITIONS ARE AS UNDER: 3. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND O N FACTS IN CONFIRMING THE ADDITION OF RS. 24,43,105/-IN RESPECT OF TDS DEDUCT ED BY VARIOUS PARTIES, THOUGH THE INCOME WAS NOT ACCRUED DURING THE YEAR U NDER CONSIDERATION. 4. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND O N FACTS IN CONFIRMING THE DISALLOWANCE OF PROJECT EXPENSES OF RS. 5,92,597/- .WHICH WAS INCURRED BY THE ASSESSEE IN THE ROUTINE COURSE OF BUSINESS. 5. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADDITION OF TRAVELLING EXPENSES OF RS. 1,68,948/- W HICH WAS INCURRED BY THE ASSESSEE FOR BUSINESS PURPOSES. 6. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADDITION OF BUSINESS PROMOTION EXPENSES OF RS. 3,04 ,165/- WHICH WAS INCURRED BY THE ASSESSEE FOR BUSINESS PURPOSES. 7. THAT THE LD. CIT (APPEAL) HAS ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADHOK DISALLOWANCE OF CAR EXPENSES O F RS. 92,781/- WITHOUT ANY BASIS OR REASONING THEREOF. 8. THAT THE LDJ.CIT(A) HAS ERRED IN LAW AND ON FACTS I N CONFIRMING THE ADHOK DISALLOWANCE OF TELEPHONE EXPENSES OF RS. 5,0 72/- WITHOUT ANY BASIS OF REASONING THEREOF. 9. THAT THE IMPUGNED APPELLATE ORDER IS ARBITRARY, ILL EGAL, BAD IN LAW AND IN VIOLATION OF RUDIMENTARY PRINCIPLES OF CONTE MPORARY JURISPRUDENCE. 10. THAT THE APPELLANT CRAVES LEAVE TO ADD/ALTER ANY/AL L GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPE AL. 4 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. BRIEF FACTS OF ITA NO.-4819/DEL/2015 FOR A.Y. 2009 -10. 3. DURING THE SCRUTINY PROCEEDING, THE ASSESSING OF FICER (AO) NOTICED THAT THE TDS AMOUNT OF RS. 6,39,263/- IN RESPECT OF DLF COMMERCIAL COMPLEX LTD., HAS NOT BEEN SHOWN BY THE ASSESSEE IN HER INCOME AS PER PROVISIONS CONTAINED U/S 198 OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT). ON FAILURE OF THE ASSESSEE TO EXPLAIN, THE AO MADE ADDITION OF RS. 6,39,263/- TO THE INCOME OF THE ASSESSEE. THE ASS ESSEE HAS ALSO DEBITED RS. 6,68,703 UNDER THE HEAD REPAIR AND MAINTENANCE OF OFFICE. AO PROCEEDED TO CONCLUDE THAT THE CABINS MADE BY THE A SSESSEE IN THE OFFICE ARE COVERED UNDER THE BLOCK OF FURNITURE AND FIXTU RE AND AS SUCH ARE IN THE CAPITAL NATURE AND THEREBY ALLOWED DEPRECIATION @ 10% OF FURNITURE AND FIXTURE AND THEREBY MADE ADDITION OF RS. 6,01, 833/-. BRIEF FACTS OF ITA NO. 4820/DEL/2015 FOR A.Y. 2009- 10 4. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS DECLARED OTHER CREDITORS (DUE TO TDS PAID BY THEM) AT RS. 24,43,1 05/- IN HIS BALANCE SHEET. DECLINING THE CONTENTIONS RAISED BY THE ASS ESSEE, AO MADE ADDITION OF RS. 24,43,105/- BY TREATING THE SAME A S INCOME OF THE ASSESSEE. AO ALSO NOTICED THAT FROM THE ACCOUNT OF M/S K.K. REAL ESTATE THAT THE ASSESSEE HAS DEBITED AN AMOUNT OF RS. 5,92 ,597/- AS PROJECT EXPENSES. ON FAILURE OF THE ASSESSEE TO DISCHARGE HIS ONUS AO MADE 5 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. ADDITION OF RS. 24,43,105/-. THE ASSESSEE FURTHER DEBITED AN AMOUNT OF RS. 2,74,770/- , RS. 5,03,823/-, RS. 4,63,908/- AND RS. 50,721/- ON ACCOUNT OF TRAVELLING EXPENSES, BUSINESS PROMOTION EX PENSES, CAR EXPENSES AND TELEPHONE EXPENSES RESPECTIVELY OUT OF W HICH THE AO HAS DISALLOWED AN AMOUNTS OF RS. 1,68,948/- RS. 1,32,46 5/- AND RS. 92,781/- ON ACCOUNT OF TRAVELLING EXPENSES, BUSINESS PROMOTI ON EXPENSES AND CAR EXPENSES RESPECTIVELY. THE ASSESSING OFFICER ALSO DISALLOWED AN AMOUNT OF RS. 1,71,700/- CLAIMED BY THE ASSESSEE AS BUSINE SS EXPENSES ON THE GROUND THAT THE SAME ARE HAVING NO BUSINESS NEXUS. AO, THEREBY ASSESSED TOTAL INCOME OF THE ASSESSEE AT RS. 78,36, 838/-. 5. ASSESSEES CARRIED THE MATTER BEFORE THE LD. CIT( A) BY WAY OF FILING THE APPEAL, WHO HAS DISMISSED THE APPEAL. FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGHT OF TH E FACTS AND CIRCUMSTANCES OF THE CASE . 7. UNDISPUTEDLY, THE LD. CIT(A) HAS PASSED IMPUGNED ORDER EX PARTE . IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEES MR. SU NIL KAPOOR AND MS. KIRAN LATA KAPOOR ARE BROTHER AND SISTER. 6 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. 8. PERUSAL OF THE IMPUGNED ORDERS PASSED BY LD. CIT (A), GO TO PROVE THAT INITIALLY ONE SH. PAWAN, CA HAD APPEARED ON BE HALF OF THE ASSESSEES, BUT THEREAFTER NONE APPEARED ON BEHALF OF THE ASSES SEES AND LD. CIT(A) HAS PROCEEDED TO DECIDE THE APPEAL EX PARTE . 9. BARE PERUSAL OF THE IMPUGNED ORDERS GO TO SHOW T HAT EXCEPT IN PARA 4.7 OF THE IMPUGNED ORDERS PASSED IN CASE OF B OTH THE ASSESSEES, THERE IS NOT IN IOTA MATERIAL TO SHOW, IF THE LD. C IT(A) HAS GIVEN AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE , IN PARA 4.7 OF THE IMPUGNED ORDER WHICH READS AS UNDER:- 4.7 SINCE MORE THAN ENOUGH OPPORTUNITY WAS GIVEN A ND THE APPELLANT HAS CHOSEN NOT TO APPEAR OR TO FILE ANY W RITTEN SUBMISSIONS, IT APPEARS THAT SHE HAS BEEN PURPOSELY AVOIDING ATTENDANCE BEFORE THE UNDERSIGNED. SINCE THE APPELLANT AND HER AUTHORIZED REPRESENTATIVES HAVE N OT ATTENDED THE APPELLATE PROCEEDINGS DESPITE REPEATED OPPORTUNITIES PROVIDED TO THEM, I AM CONSIDERED TO UPHOLD THE ASSESSMENT ORDER AND TO SUSTAIN THE ADDITIONS MADE BY THE ASSESSING OFFICER. 4.7 SINCE MORE THAN ENOUGH OPPORTUNITY WAS GIVEN AN D THE APPELLANT HAS CHOSEN NOT TO APPEAR OR TO FILE ANY W RITTEN SUBMISSIONS, IT APPEARS THAT HE HAS BEEN PURPOSELY AVOIDING ATTENDANCE BEFORE THE UNDERSIGNED. SINCE THE APPELLANT AND HER AUTHORIZED REPRESENTATIVES HAVE N OT ATTENDED THE APPELLATE PROCEEDINGS DESPITE REPEATED OPPORTUNITIES PROVIDED TO THEM, I AM CONSIDERED TO UPHOLD THE ASSESSMENT ORDER AND TO SUSTAIN THE ADDITIONS MADE BY THE ASSESSING OFFICER. 10. IN THE BODY OF THE IMPUGNED ORDERS, NOWHERE IT IS MENTIONED BY LD. CIT(A), IF AFTER DISAPPEARANCE OF MR. PAWAN, CA AS AUTHORIZED 7 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. REPRESENTATIVE OF THE ASSESSEES, ANY NOTICE HAS BEE N ISSUED TO THE ASSESSEES TO ARGUE THEIR CASE. SO IT IS A CLEAR CA SE OF NOT PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BY LD. C IT(A) AS A QUASI JUDICIAL AUTHORITY. FURTHERMORE, LD. AR FOR THE AS SESSEES BROUGHT ON RECORD CERTIFICATE ISSUED BY SIR GANGA RAM HOSPITAL , NEW DELHI-110060 ALONG WITH DETAIL OF MEDICAL CHARGES TO PROVE THAT SH. JOGINDER LAL KAPOOR, FATHER OF BOTH THE ASSESSEES REMAINED SICK AND ADMI TTED IN SIR GANGA RAM HOSPITAL, PROVIDING REASONABLE CAUSE TO THE ASS ESSEES NOT TO APPEAR BEFORE LD. CIT(A) TO PURSUE THEIR CASES. 11. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE AR E OF THE CONSIDERED VIEW THAT TO MEET WITH THE ENDS OF THE J USTICE, IT IS A FIT CASE WHICH CAN BE REMANDED TO THE LD. CIT(A) TO DECIDE A FRESH, AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEES, HEN CE, BOTH THE APPEAL ARE REMANDED TO LD. CIT(A). CONSEQUENTLY, BOTH THE APPEALS FILED BY THE ASSESSEES STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/6//2018 SD/- SD/- (N.K SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22.06.2018 POOJA/- 8 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 9 ITA NOS-4819 & 4820/DEL/2015. MS. KIRAN LATA KAPOOR & MS. SUNIL KAPOOR, NEW DELH I. DATE OF DICTATION 21/6/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/06/2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 22/6/2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 22/6/2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 22/6/2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER