M/s Bon Ton Sight Care, New Delhi V. ITO, New Delhi

ITA 524/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3508 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-07-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Unexplained expenditure; Depreciation; Business expenditure; Income from undisclosed sources; Opportunity of being heard
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO.524/DEL/2011 ASSESSMENT YEAR : 2007-08 M/S BON TON SIGHT CARE, ASSESSING OFFICER, C-2, LAJPAT NAGAR-II, WARD-32 (3), NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AAAFB-9411-C APPELLANT BY : SHRI VINAY CHAWLA, ADVOCATE. RESPONDENT BY : DR. BRR KUMAR, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD CIT(A)- XXVI, DATED 12.11.2010 FOR ASSESSMENT YEAR 2007-08/ . THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEALS:- 1. THAT THE LEARNED CIT(A) HAS ERRED IN PASSING AN EXPARTE ORDER AND UPHOLDING THE ASST ORDER WITHOUT GOING INTO THE MER ITS OF THE ADDITIONS. 2. THAT NO PROPER OPPORTUNITY HAS BEEN GRANTED TO T HE APPELLANT. 3. THAT THE APPELLANT WAS PREVENTED FROM SUFFICIENT CAUSE FOR NOT APPEARING BEFORE THE AUTHORITY BELOW DUE TO NON SERVICE OF NO TICES OF HEARING .. 4. THAT THE ASSESSMENT MADE IS HIGHLY ARBITRARY UNJ USTIFIED AND IS IN DISREGARD OF EVIDENCE FURNISHED TO ESTABLISH THAT T HE ASSESSEE FIRM HAD PAGE 2 OF 6 ITA NO524DEL/11 INCURRED THE EXPENDITURE SHOWN IN THE PROFIT & LOSS ACCOUNT WHICH IS NOT ONLY DULY RECORDED IN THE BOOKS OF ACCOUNT MAINTAIN ED BY THE ASSESSEE FIRM IN THE REGULAR COURSE OF ITS BUSINESS ACTIVITY , BUT ALSO SUPPORTED BY PROPER BILLS AND VOUCHER. 5. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FAC TS AND IN LAW IN PRINCIPLE IN NOT ACCEPTING THE EXPLANATION OF THE ASSESSEE REGAR DING THE STOCK AND MAKING AN ADDITION OF RS. 17,44,663/- IN THE TRADIN G RESULTS OF THE ASSESSEE FIRM. 6. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FAC TS AND IN LAW IN MAKING TRADING ADDITION ON ACCOUNT OF ALLEGED STOCK BY COM PUTING THE GROSS PROFIT RATE AT 35.94% TO THE VALUE OF THE STOCK FOUND DURI NG THE TIME OF SURVEY AND MAKING THE ADDITION IN THE TRADING ALE AS AGAIN ST 31.21 SHOWN BY THE ASSESSEE. 7. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FAC TS AND IN LAW IN MAKING AN ADDITION OF RS. 5,77,247/- IN THE VALUE OF STOCK FOR THE PURCHASES FOR THE PRE - SURVEY PERIOD & FAIL TO CONSIDER THAT THE PURCHASES AMOUNTING TO RS . 577247/- WAS NOT ENTERED IN THE BOOKS OF ACCOUNT . 8. THAT THE AUTHORITIES BELOW HAS ERRED BOTH IN LAW AND ON FACTS NOT ALLOWED THE DEPRECIATION AMOUNTING TO RS 4,69,687/- ON ACCOUNT OF ADDITIONS IN THE FIXED ASSETS, CLAIMED IN THE PROFIT & LOSS ACCOUNT DURING THE YEAR. 9. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FAC TS AND IN LAW IN MAKING AN ADDITION OF RS.41 ,51 ,404/- BY INVOKING THE PROVISIONS OF SECTION 69C OF THE ACT ON ACCOUNT OF ALLEGED UNEXPLAINED EXPENDITURE A S INCOME OF THE ASSESSEE FIRM. 10. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FACTS AND IN LAW IN MAKING AN ADDITION OF RS. 5,46,905/- ON ACCOUNT OF MISCELLANEOUS INCOME AS INCOME OF THE ASSESSEE FIRM. PAGE 3 OF 6 ITA NO524DEL/11 11. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FA CTS AND 111 LAW 111 DISALLOWING RS. 17,123/- UNDER THE HEAD PROPERTY TAX. 12. THAT THE AUTHORITIES BELOW HAS FAILED TO CONSID ER THE FACT THAT THE SAID EXPENSES ARE INCURRED ON FOR THE BUSINESS PURPOSE S HOWN IN THE PROFIT & LOSS ACCOUNT. 13. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON F ACTS AND IN LAW IN ADDING 'RS. 2,00,202/- UNDER THE HEAD SUNDRY CREDITOR OF SAFILO INDIA PVT LTD AS INCOME FROM UNDISCLOSED SOURCES. . 14. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FA CTS AND IN LAW IN ADDING RS. 12,58,853/- UNDER THE HEAD SUNDRY CREDITOR OF MIS RAYBAN SUN OPTICS INDIA LTD AS INCOME FROM UNDISCLOSED SOURCES. 15. THAT THE AUTHORITIES BELOW HAS ERRED BOTH ON FACTS AND IN LAW IN ADDING RS. 2555/- UNDER THE HEAD SUNDRY CREDITOR GKB RX LENS P VT LTD AS INCOME FROM UNDISCLOSED SOURCES. 16. THAT THE AUTHORITIES BELOW HAS ERRED BOTH IN LAW AN D ON FACTS IN DISALLOWING THE SCOOTER MAINTENANCE EXPENDITURE AMOUNTING TO RS .46000/- CLAIMED IN THE PROFIT & LOSS ACCOUNT DURING THE YEAR. 17. THAT THE AUTHORITIES BELOW HAS ARBITRARY BELOW HAS ARBITRARY DISALLOW DONATION AMOUNTING TO RS. 4000/- TWICE. 18. THAT THE AUTHORITIES BELOW HAS FAIL TO HAS FAIL ED TO CONSIDERED THE FACT THAT THESE EXPENDITURE CLAIMED ATTRIBUTE TO RUNNING OF THE FIR M AND INCURRED FOR THE BUSINESS PURPOSE AS SHOWN IN THE PROFIT & LOSS ACCOUNT AND IS ALLOWABLE AS BUSINESS EXPENDITURE. PAGE 4 OF 6 ITA NO524DEL/11 19. THE AFORESAID DISALLOWANCE IS MADE COMPLETE DIS REGARD OF THE SUBMISSION MADE AND MATERIAL PLACED ON RECORD. 20. THAT THE APPELLANT RESERVES HIS RIGHT TO AMEND, ALTER OR RAISE ANY OTHER ADDITIONAL GROUND OF APPEAL BEFORE OR DURING THE COURSE OF APP ELLATE PROCEEDINGS. 2. IN THIS CASE, LD CIT(A) PASSED AN EX PARTE ORDER QUA THE ASSESSEE AS NONE APPEARED ON BEHALF OF THE ASSESSEE. IT IS CONT ENDED BY THE APPELLANT THAT NO PROPER OPPORTUNITY WAS GRANTED TO THE APPELLANT BY THE LD CIT(A) IN SO FAR AS THERE WAS A CHANGE IN THE INCUMBENT ,AND NOTICES IS SUED BY THE NEW CIT(A) WERE NOT RECEIVED BY THE APPELLANT. IN VIEW OF THE ABOVE , IT WAS PRAYED THAT THE CASE MAY BE REMITTED BACK TO THE FILE OF THE LD CIT(A) F OR GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 3. THE LD DR HAS NOT DISPUTED THE ABOVE SUBMISSION OF THE LD AR FOR THE ASSESSEE. 4. IN VIEW OF THE ABOVE, WE DEEM IT FIT TO SET ASID E THE ORDER OF LD CIT(A) AND REMIT THE MATTER BACK TO HIS FILE WITH THE DIRECTIO N THAT A FRESH ORDER BE PASSED AS PER LAW AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUN ITY OF BEING HEARD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 14 TH JULY, 2011. SD/- SD/- (R.P. TOLANI) (B.K. HAL DAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 14.7.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. PAGE 5 OF 6 ITA NO524DEL/11 TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 14.7.2011 DATE OF DICTATION 18.7.2011 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER. 18.7.2011 DATE OF ORDER SENT TO THE CONCERNED BENCH 18.7.2011 PAGE 6 OF 6 ITA NO524DEL/11