Sandhya Asthana, New Delhi V. ITO, Ward-33(4), New Delhi

ITA 5108/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2041 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: G N GUPTA I T P
• Keywords: Depreciation; Competent authority
• Section: 147; 148; 44AD; 194C; 192; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER ITA NO.5108/DEL/2018 ASSESSMENT YEAR: 2010-11 SANDHYA ASTHANA C-8/8495, VASANT KUNJ, NEW DELHI PAN NO. AADOA0531B VS ITO, WARD 33 (4) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. G. N. GUPTA, ITP RESPONDENT BY SH. S. L. ANURAGI, SR. DR DATE OF HEARING: 07/08/2019 DATE OF PRONOUNCEMENT: 06/09/2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 14.05.2018 OF THE CIT(A)-11, NEW DELHI RELATING TO A. Y. 2010-11. 2. THERE WAS A DELAY OF 9 DAYS IN FILING OF THIS AP PEAL BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CON DONATION OF DELAY ALONGWITH AN AFFIDAVIT STATING THAT DUE TO HE R TREATMENT OF ILL HEALTH SHE WAS OUT OF DELHI FOR WHICH THE DE LAY OCCURRED. AFTER HEARING THE LD. DR AND AFTER CONSIDERING THE CONTENTS OF THE CONDONATION PETITION FILED ALONGWITH THE AFFIDA VIT OF THE ASSESSEE, THE DELAY IN FILING OF THIS APPEAL IS CON DONED. PAGE | 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND HAS FILED HER RETURN OF INCOME ON 27 .09.2017 DECLARING TOTAL INCOME OF RS.5,41,400/-. IN THIS C ASE AS PER AIR DATA AVAILABLE IT WAS SEEN THAT THE ASSESSEE HA D MADE PAYMENT OF CREDIT CARD BILL OF RS.5,62,452/- AND HA D RECEIVED RS.9,50,484/- U/S. 192/194 C. ACCORDINGLY THE CASE OF THE ASSESSEE WAS REOPENED U/S. 147 OF THE ACT BY RECORD ING REASONS AND AFTER TAKING NECESSARY PRIOR APPROVAL O F THE COMPETENT AUTHORITY. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT ASSESSEE HAS NOT SHOWN THE INCOME UNDER THE HEAD OTHER SOURCES OF RS.4,80,000/ - IN THE RETURN FILED IN RESPONSE TO NOTICE U/S. 148. THE A SSESSING OFFICER, THEREFORE, MADE ADDITION OF RS.4,80,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 5. IN APPEAL THE LD. CIT(A) CONFIRMED THE ADDITION SO MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER :- 4.2 I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE AR. IT IS CONTENDED THAT THE APPELLANT HAD REVISED THE RETURN OF INCOME ON 04.12.2017 IN W HICH THE RECEIPTS OF RS. 4,80,000/- WERE CONSIDERED WHILE SH OWING INCOME U/S 44AD OF THE ACT ON PRESUMPTIVE BASIS. HO WEVER, IT IS NOTICED THAT THE NOTICE U/S 148 OF THE ACT WAS I SSUED TO THE APPELLANT ON 29.03.2017 IN RESPONSE TO WHICH THE AP PELLANT HAD FILED THE RETURN OF INCOME ON 27.09.2017 IN WHI CH THESE RECEIPTS OF RS. 4,80,000/- WERE NOT SHOWN BY THE AP PELLANT. IT IS ALSO OBSERVED THAT THE APPELLANT HAD NOT FILED T HE ORIGINAL RETURN OF INCOME U/S 139(1) OF THE ACT AND THEREFOR E, THE APPELLANT WAS NOT ENTITLED TO REVISE HER RETURN OF INCOME. PAGE | 3 MOREOVER, THE RETURN WAS REVISED ON 04.12.2017 WHIC H IS AFTER THE ASSESSMENT ORDER WAS PASSED BY THE AO ON 30.11. 2017. AS THE APPELLANT HAD NOT SHOWN THE INCOME OF RS., 4 ,80,000/- WHICH IS DULY REFLECTED IN HER FORM 26AS, THE AO HA S RIGHTLY MADE THE ADDITION AND THEREFORE, THE SAME IS UPHELD AND THE GROUND OF APPEAL IS DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL CHALLENGING THE ADDIT ION OF RS.4,80,000/- MADE BY THE ASSESSING OFFICER AND SUS TAINED BY THE CIT(A). 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AMOUNT OF RS.4,80,000/- IS ON ACCOUNT OF LEASING OF ONE VEHICLE. THEREFORE, IF THE GROSS RECEIPT IS TREATED AS INCOME OF THE ASSESSEE THEN CORRESPONDING EXPENDITURE AND DEPRECIATION SHOULD HAVE BEEN ALLOWED. HOWEVER, TH E SAME HAS NOT BEEN ALLOWED. HE ACCORDINGLY SUBMITTED THA T THIS MATTER MAYBE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR ALLOWING THE CLAIM OF EXPENSES U/S. 57 OF THE IT AC T. 8. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE CIT(A). 9. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BEL OW. I FIND THE CASE OF THE ASSESSEE WAS REOPENED ON THE GROUND THAT ASSESSEE HAS RECEIVED RS.9,50,484/- U/S. 192 / 194C AND HAS MADE PAYMENT OF CREDIT CARD BILL OF RS.5,62,452 /-. I FIND THE ASSESSING OFFICER IN THE ORDER PASSED U/S. 147/ 143 (3) MADE ADDITION OF RS.4,80,000/- ON THE GROUND THAT A SSESSEE PAGE | 4 HAS NOT SHOWN THE INCOME EARNED UNDER THE HEAD OTH ER SOURCES. I FIND THE LD. CIT(A) SUSTAINED THE ADDI TION SO MADE BY THE ASSESSING OFFICER THE REASONS OF WHICH HAS ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPH. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE SHOULD HAVE BEEN ALLOWED THE BENEFIT OF DE DUCTION OF EXPENSES INCURRED FOR EARNING THE INCOME FROM LEASI NG OF THE VEHICLE AND DEPRECIATION THEREON. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTIC E I DEEM IT PROPER TO RESTORE THIS ISSUE TO THE FILE OF THE ASS ESSING OFFICER WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HER CASE AND DECIDE THE ISSUE AS PE R FACT AND LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAI SED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 06.09.2019. SD/- (R.K PANDA) ACCOUNTANT MEMBER *NEHA* DATE:- 06.09.2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI PAGE | 5 DATE OF DICTATION 06.09.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.09.2019 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 06.09.2019 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 06.09.2019 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 06.09.2019 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 06.09.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 06.0 9.2019 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER