ACIT, Noida V. M/s. H.B. Joshi (AO), Noida

ITA 4901/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58446 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 04-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 4901/DEL/2011 ASSESSMENT YEARS: 2006-07 ACIT, VS. H.B. JOSHI (AOP), CIRCLE 1, B-76, SECTOR-2, NOIDA. NOIDA. AADFH1175N (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SALIL MISHRA, SR. DR RESPONDENT BY : NONE ORDER PER SHAMIM YAHYA, A.M. THIS APPEAL BY THE REVENUE DIRECTED AGAINST THE OR DER OF LD. CIT(A) DATED 26.08.2011 AND PERTAINS TO THE A.Y . 2006-07. GROUNDS RAISED READ AS UNDER: - 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY DELETING THE ADDITION OF RS. 17,88,942/- MADE BY TH E AO, ON ACCOUNT OF UNDISCLOSED PURCHASES AS ASSESSEE FAILED TO EXPLAIN DIFFERENCE ON ACCOUNT OF FREIGHT, REBATE AND DISCOUNT DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO. ITA NO. 4901/D/2011 2 2. LD. CIT(A) HAS ERRED IN LAW AND ON FACTS BY ALLO WING RELIEF OF RS. 21,092/- TO THE ASSESSEE, BEING THE ADDITION MADE BY THE AO, ON ACCOUNT OF SUPPRESSED SALES AS THE DIFFERENCE IS ON ACCOUNT OF LOADING CHARGES AS THE ASSESSEE FAILED TO EXPLAIN THE SAME DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO. 3. THAT THE APPELLANT CRAVES TO, ADD, ALTER AND AME ND ANY OF THE GROUNDS OF APPEAL ON OR BEFORE HEARING. 4. THE ORDER OF THE LD. CIT(A) BEING ERRONEOUS IN L AW AND ON FACTS DESERVES TO BE SET-ASIDE/CANCELLED AND THE ORDER OF THE AO BE RESTORED. 2. IN THIS CASE, THE ASSESSEE ENJOYS INCOME FROM PU RCHASE AND SALE OF LIQUOR. THE AO REFERRED TO THE TRADE T AX ORDER OF THE ASSESSEE AND OBSERVED THAT IN THAT ORDER ASSESS EE HAS DISCLOSED SALES OF 7,17,50,433/-, WHEREAS HE DISCLO SED SALES IN THE PROFIT AND LOSS ACCOUNT AT RS. 7,17,29,341/- . THUS, THERE WAS A DIFFERENCE OF RS. 21,092/-. THIS THE AO HELD TO BE SUPPRESSION OF SALES. ACCORDINGLY, HE ADDED RS. 21 ,092/- TO THE INCOME OF THE ASSESSEE. 3. THE AO FURTHER OBSERVED THAT DURING THE YEAR THE ASSESSEE HAS DISCLOSED TOTAL PURCHASE IN THE PROFIT AND LOSS ACCOUNT AT RS. 6,74,67,431/-, WHEREAS IT HAS DISCLO SED TOTAL PURCHASES AT RS. 6,92,56,373/- TO THE TRADE TAX DEP ARTMENT ITA NO. 4901/D/2011 3 FOR THE YEAR UNDER CONSIDERATION. THUS, THERE WAS A DIFFERENCE OF RS. 17,88,942/-. THE AO HELD THAT THERE IS DIFF ERENCE OF RS. 17,88,942/- AND THE SAME IS NOT REFLECTED IN THE BO OKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. THEREFORE, THE AO HELD THAT ASSESSEE HAD PURCHASES OUT OF BOOKS TO THE EXT ENT OF RS. 17,88,942/-. ACCORDINGLY, HE ADDED UNDISCLOSED PUR CHASE OF RS. 17,88,942/- TO THE INCOME OF THE ASSESSEE. 4. AGAINST THE ABOVE ORDER ASSESSEE APPEALED BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED THE ASSESSEES SU BMISSIONS. HE HELD THAT THE DIFFERENCE OF RS. 17,88,942/- AS P OINTED OUT BY THE AO HAS BEEN SATISFACTORILY EXPLAINED AND REC ONCILED BY THE ASSESSEE, WITH ALL REQUISITE DETAILS, ACCOUNTS FACTS AND FIGURES. HE HELD THAT THE PURCHASES AS PER TRADING ACCOUNTS IS ARRIVED AFTER ADDING FREIGHT INWARD TO THE NET PURC HASE AND AFTER DEDUCTING REBATES AND DISCOUNTS WHICH ALL ARE PART OF AUDITED BOOKS OF ACCOUNTS. THUS, THE LD. CIT(A) OP INED THAT THE AO FAILED TO APPRECIATE THIS SIMPLE ACCOUNTING ADJUSTMENT. HE CONCLUDED THAT THERE IS NO UNEXPLAINED DISCREPAN CY. THEREFORE, THE ADDITION OF RS. 17,88,942/- IS DELET ED. 5. SIMILARLY, AS REGARDS THE DIFFERENCE OF RS. 21,0 92/- THE LD. CIT(A) HELD THAT IT WAS MINOR DIFFERENCE AND WA S ALSO ITA NO. 4901/D/2011 4 EXPLAINED TO BE DIFFERENCE BETWEEN GROSS SALES AND LOADING CHARGES. HENCE, THE ADDITION OF RS. 21,092/- WAS A LSO DELETED. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE LD. DR. NONE APPEARED ON BEHA LF OF THE ASSESSEE. IN OUR CONSIDERED OPINION THE MATTER CAN BE DISPOSED OFF BY HEARING THE LD. DR AND PERUSING THE RECORDS. WE HAVE CAREFULLY PERUSED THE RECORDS. WE FIND THA T THE LD. CIT(A) HAS PASSED THE VERY BRIEF ORDER. IN THIS OR DER IT IS NOT REFLECTED AS TO WHETHER THE RECONCILIATION SUBMITTE D BY THE ASSESSEE WAS PUT BEFORE THE AO OR NOT. IN OUR CONS IDERED OPINION AO SHOULD HAVE AN OPPORTUNITY TO GO THROUGH RECONCILIATION SUBMITTED BY THE ASSESSEE. TO THIS EXTENT IN OUR CONSIDERED OPINION REVENUES INTEREST IS PREJUDICED . HENCE, IN OUR CONSIDERED OPINION BOTH THE ISSUES NEED TO BE RESTORED BACK TO THE FILE OF THE AO. THE AO SHALL GO THROUG H THE RECONCILIATION AND THE EXPLANATION GIVEN BY THE ASS ESSEE BEFORE THE LD. CIT(A) AND, ACCORDINGLY, DECIDE THE ISSUE. NEEDLESS TO ADD, THE ASSESSEE SHOULD BE GIVEN ADEQU ATE OPPORTUNITY OF BEING HEARD. ITA NO. 4901/D/2011 5 7. IN THE RESULT, THIS APPEAL BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.01.2012 SD/- SD/- (I.P. BANSAL) (SHAMIM YA HYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09/1/2012 *KAVITA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR