Jay Enn Infotech Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 4897/DEL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 4159 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 14-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDRA DUBEY
• Keywords: Bogus purchase; Loose papers
• Section: 133A; 132

Judgement Text

IN THE INCOME TAX APPELLA TE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JU DICIAL MEMBER I.T.A .NO.- 4897/DEL/2012 (ASSESSMENT YEAR 2009-10) JAY ENN INFOTECH PVT. LTD. 105- A/2, SARASWATI HOUSE, 27-NEHRU PLACE NEW DELHI-110019 AAACJ9991N (APPELLANT) VS ACIT CENTRAL CIRCLE- 11 NEW DELHI (RESPONDENT) APPELLANT BY SH. RUCHESH SINHA, ADV RESPONDENT BY SH. UMESH CHANDRA DUBEY, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED AGAINST THE ORDER DATED 30/07/ 2012 PASSED BY CIT(A) -XXXI, NEW DELHI 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND I N LAW, AN APPEAL IS FILED BEFORE THE TRIBUNAL AGAINST THE ORDER OF COMM ISSIONER (APPEALS) XXXI ERRED IN SUSTAINING THE ADDITION MADE BY THE A.O. W ITHOUT APPRECIATING THE TRUE FACTS OF THE CASE AND ASSESSING THE INCOME OF THE ASSESSEE AT RS. 6096027 AGAINST THE RETURNED INCOME OF RS. 350670/- . DATE OF HEARING 10.10.2016 DATE OF PRONOUNCEMENT 14.10.2016 THE ASSESSEE PRAYS FOR THE TOTAL RELIEF, SO WRONG A DDITIONS MADE OF RS. 5745357 BE DELETED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ALTER VARY AND OR WITHDRAW ANY OR ALL THE ABOVE GROUND OF APPEAL. 3. THE LD. AR SUBMITTED THAT APPLICATION UNDER RULE 9A READ WITH RULE 11 OF THE ITAT RULES AND JUDGMENT OF APEX COURT IN CASE OF NTPC VS. CIT 229 ITR 383 (SC) WAS FILED ON 09.06.2016 FOR REVISING THE GROUNDS OF APPEAL. THE SAID GROUNDS ARE AS FOLLOWS: 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ORDER OF THE LD. CIT (A) IS ARBITRARY, INVALID AND ILLEGAL. 2. THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT (A) HAS GROSSLY ERRED IN LAW ON FACTS IN NOT CONSIDERIN G THAT SURVEY U/S. 133A IN THIS CASE WAS CONDUCTED ON 24.9.2009 I.E. IN THE F.Y. 2009-10 RELEVANT FOR THE A.Y. 2010-11 AND THE ADDITION BASED ON THE FINDING OF SURVEY IF ANY, CAN BE MADE FOR THE A.Y. 2010-11 ONLY AND NOT IN A.Y. 2009-10. THE CIT(A) WHILE CONFIRMING THE ASSESSMENT ORDER HAS GR OSSLY FAILED TO CONSIDER THAT THE AO IN THIS CASE HAS MADE ADDITION FOR A PRE-SURVEY PERIOD I.E. IN THE F.Y. 2008-09 RELEVANT FOR THE A. Y. 2009-10. 3. THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) IS ARBITRARY, INVALID AND PERVERSE AS THE SAME DOES NOT DEAL WITH THE DOCUMENTARY AND CIRCUMSTANTIAL EVIDENCE(S) , DOES NOT CONSIDER THE DETAILED SUBMISSIONS PLACED ON RECORD, AND IS P ASSED WITHOUT VERIFYING THE FACTS ON RECORD, GIVING PROPER OPPORTUNITY OF H EARING TO THE APPELLANT AND ALSO WITHOUT CONSIDERING THAT NO ADDITION IN PU RSUANCE OF SURVEY CAN BE MADE IN THE A.Y. 2009-10. 4. THAT IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS. 73,55,760/- MADE BY THE AO IN THE CASE OF THE APPEL LANT BASED ON THE GROSS TURNOVER. 5. THAT CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION MADE BY THE AO, WITHOUT CONSIDERING THAT BEFORE MAKING THE ADDI TION THE AO HAS SUBSTANTIATED THAT THE APPELLANT IS PROVIDING ACCOM MODATION ENTRIES IN THE NATURE OF BOGUS PURCHASES TO THE TULIP GROUP OF CAS ES, AND ANY MATERIALS IN THIS REGARD WAS NEVER CONFRONTED OR DISCUSSED WI TH THE APPELLANT BEFORE MAKING SUCH ADDITION. 6. THAT THE APPELLANT PRAYS FOR ALL CONSEQUENTIAL R ELIEFS ENTITLED TO IT UNDER THE LAW IN PURSUANCE OF THE FOREGOING GROUNDS OF APPEAL OR EVEN OTHERWISE. 4. THE BRIEF FACTS OF THE CASE ARE A SIMULTANEOUS S URVEY OPERATION WAS CONDUCTED ON M/S. JAY ENN INFOTECH PVT. LTD. AN D M/S. BINARY NETWORK SOLUTIONS PVT. LTD. UNDER SECTION 13 3A OF INCOME TAX ACT, 1961 ON 24.09.2009 AT 105, A/2, SAR ASWATI HOUSE, 27, NEHRU PLACE, NEW DELHI WITH AN ACTION UN DER SECTION 132 ON TULIP GROUP OF CASES. SMT. NIRMALA J AIN, MOTHER OF SH. SUNIL JAIN, DIRECTOR WAS AVAILABLE AT THE TIME OF SURVEY AS SH. JAIN WAS AWAY FOR THE TREATMENT OF HI S WIFE. DURING THE COURSE OF SURVEY PROCEEDINGS, CERTAIN IN CRIMINATING DOCUMENTS IN THE FORM OF BLANK CHEQUE BOOKS, LOOSE PAPERS AND ELECTRONIC MEDIA WAS FOUND AND IMPOUNDED. SMT. NIRMALA JAIN CONFRONTED ON THE BASIS OF THE MATERIAL SO FOU ND AND IMPOUNDED. THE ASSESSING OFFICER OBSERVED THAT ASSE SSEE COMPANY WAS PROVIDING ACCOMMODATION BILLS AND HAD N O GENUINE SALES. SH. SUNIL JAIN NEVER ATTENDED THE PR OCEEDINGS IN THE COURSE OF SURVEY NOR IN POST SURVEY INQUIRIE S. THEREFORE, THE ASSESSING OFFICER HELD THAT THE ASSESSEE IS INV OLVED IN THE BUSINESS OF PROVIDING ACCOMMODATION PURCHASE BILLS TO VARIOUS PERSONS/CONCERNS/ENTITIES WITHOUT SUPPLY OF GOODS AND CHARGES COMMISSION ON SUCH SALES. IN THE PROFIT AND LOSS ACCOUNT FOR THE PERIOD ENDING 31.03.2009, TOTAL TUR NOVER OF THE ASSESSEE COMPANY IS MENTIONED AT RS. 383682543/-. CONSIDERING THAT THE ASSESSEE IS NOT INVOLVED IN AC TUAL BUSINESS OF SALE AND PURCHASE OF GOODS AND ONLY ISS UING ACCOMMODATION BILLS TO PROVIDE BOGUS ENTRIES TO VAR IOUS CONCERNS ON COMMISSION BASIS, THE INCOME OF THE ASS ESSEE WAS ASSESSED ON ACCOUNT OF COMMISSION CHARGED @ 2% ON G ROSS TURNOVER RECORDED IN THE BOOKS OF ACCOUNT. THUS INC OME OF THE ASSESSEE WORKS OUT TO RS. 7673650/- (383682543 X 2% ) ON ACCOUNT OF COMMISSION ON GROSS TURNOVER OF THE ASSE SSEE COMPANY. THUS THE ASSESSING OFFICER WAS SATISFIED T HAT THE ASSESSEE FAILED TO FURNISH TRUE PARTICULARS OF ITS INCOME IN THE RETURN OF INCOME FILED, FOR THE A.Y. 2009-10 AND CO NCEALED PARTICULARS OF INCOME. THUS ADDITION OF RS.7673650/ - WAS MADE. 5. AGGRIEVED BY THIS, THE ASSESSEE FILED APPEAL BEF ORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE REJECTION OF BOOKS WERE JUSTIFIED AND THER E IS NO GROUND FOR ANY INTERFERENCE WITH THE ADDITION MADE. THE RATE OF COMMISSION CHARGED @ 2% BY THE AO IS REASONABLE ON THE ENTIRE ACCOMMODATION BILL AND CONFIRMED THE ORDER O F THE ASSESSING OFFICER. 6. THE LD. AR SUBMITTED THAT IN CASE OF M/S. BINARY NETWORK SOLUTION PVT. LTD. VS. ACIT, THE ITAT, NEW DELHI HA S REMANDED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R. (ITA NO. 1282/DEL/2014 DATED 11.08.2016 A.Y. 2009-10). IN TH E SAID MATTER, THE TRIBUNAL HAS SET ASIDE THE ORDERS OF TH E AUTHORITIES BELOW AND MATTER WAS RESTORED TO THE FILE OF THE AS SESSING OFFICER. 7. THE LD. DR RELIED UPON THE ORDERS OF THE CIT(A) AND ASSESSING OFFICER. 8. WE HAVE PERUSED ALL THE RECORDS AND HEARD BOTH T HE PARTIES. THE STATEMENT OF SMT. NIRMALA JAIN WAS TAKEN ON REC ORDS IN CASE OF M/S. BINARY NETWORK SOLUTION PVT. LTD. AS W ELL. THE CASE HEREIN IS IDENTICAL WITH THE SAID CASE. THEREF ORE, IT WILL BE PROPER TO SET ASIDE THE ORDERS OF THE CIT(A) AND AS SESSING OFFICER. THE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. PROPER OP PORTUNITY AND HEARING MAY BE GIVEN TO THE ASSESSEE AND ASSESS EE IS DIRECTED TO PRODUCE NECESSARY EVIDENCE BEFORE THE A SSESSING OFFICER. 9. IN THE RESULT, APPEAL IS PARTLY ALLOWED FOR STAT ISTICAL PURPOSE. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14TH OF OCTOBER, 2016. SD/- SD/- (R.S. SYAL) (SUC HITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14/10/2016 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 .10.2016 PS 2. DRAFT PLACED BEFORE AUTHOR .10.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 14 .10.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 14 .10.2016 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.