DCIT, New Delhi V. M/s. S.S. Con Build (P) Ltd., New Delhi

ITA 5411/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7543 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 07-04-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K SINGH
• Assessee Lawyers: KAPIL GOYAL
• Keywords: Additional evidence; Corroborative evidences
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SH. I.C. SUDHIR , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 5411/ DEL/ 2013 ASSESSMENT YEAR: 2009 - 10 DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 15, ROOM NO. 354, 3 RD FLOOR, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI VS. M/S. S.S. CON BUILD (P) LTD., D - 22, DEFENCE COLONY, NEW DELHI GIR/PAN : AAJCS7477F (APPELLANT) (RESPONDENT) APPELLANT BY SH. B.K. SINGH, CIT (DR) RESPONDENT BY SH. KAPIL GOYAL, ADV. DATE OF HEARING 07.04.2016 DATE OF PRONOUNCEMENT 30.05.2016 ORDER PER O.P. KANT, A. M. : 1. THIS APPEAL OF THE R EVENUE IS DIRECTED AGAINST ORDER DATED 11/07/2013 OF THE COMMISSIONER OF INCOME - TAX( APPEALS) - II, NEW DELHI FOR ASSESSMENT YEAR 2009 - 10 RAISING GROUNDS AS UNDER: 1. THAT THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DELETING ADJUSTMENT OF RS. 1,35,85,330/ - IN THE WORK IN PROGRESS ACCOUNT OF THE ASSESSEE. 2. (A ) THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 2 ITA NO. 5411/DEL/2013 AY: 2009 - 10 2. T HE FACTS IN BRIEF ARE THAT IN THE CASE , A SEARCH OPERATION UNDER SECTION 132 OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT ) WAS CONDUCTED ON 20/10/2008 AT THE PREMISES OF THE ASSESSEE. RETURN FILED SUBSEQUENTLY DECLARING INCOME OF RS. 50, 170/ - ON 29 /12/2009 , WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED ON 30/12/201 0 AT ASSESSED INCOME OF RS. 65,77,56, 100/ - . ON APPEAL, THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) ALLOWED A PART RELIEF TO THE ASSESSEE . AGGRIEVED, THE R EVENUE FILED APP EAL BEFORE THE TRIBUNAL . 3. IN THE SOLE GROUND, THE R EVENUE HAS CHALLENGED THE D ELETION OF ADJUSTMENT OF RS. 1,35,85, 330/ - IN THE WORK IN PROGRESS OF THE ASSESSEE. 4. THE FACTS IN RESPECT OF THE ISSUE IN DISPUTE ARE THAT THE EXPENSES INCURRED OF RS. 5,43 ,41, 318/ - DURING THE YEAR UNDER CONSIDERATION ON COMMERCIAL PROJECT NAMELY CAPITAL MALL WERE TRANSFERRED TO WORK IN PROGRESS BY THE ASSESSEE. THE ASSESSING OFFICER DISALLOWED 25% OF THE EXPENSES OBSERVING THAT NO BILLS AND VOUCHERS IN RESPECT OF THE EXPE NSES WERE FILED BEFORE HIM. AS THE EXPENSES ON WORK IN PROGRESS WERE NOT DEB ITED TO PROFIT AND LOSS ACCOUNT , THE ASSESSING OFF ICER REDUCED THE AMOUNT OF WORK - IN - PROGRESS TO THE EXTENT FOR CARRY FORWARD TO NEXT YEAR. BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) , THE ASSESSEE FILED ALL THE BILLS AND VOUCHERS, WHO FORWARDED THOSE BILLS AND VOUCHERS TO THE ASSESSING OFFICER FOR HIS COMMENTS, HOWEVER , IN THE REMAND PROCEEDINGS ON THE ISSUE , THE ASSESSING OFFICER REMAIN ED SILENT EXCEPT STATING THA T ADDITION WAS MADE IN ABSENCE OF SUPPORTING DOCUMENTS. I N VIEW OF THE FACTS, THE LEARNED COMMISSIONER OF INCOM E - TAX( APPEALS) DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON THE ISSUE IN DISPUTE. 5. BEFORE US, THE LD . CIT (DR) RELIED ON THE ORDE R OF THE ASSESSING OFFICER AND SUBMITTED THAT THE DISALLOWANCE WAS MADE PROPERLY DUE TO LACK OF SUPPORTING EVIDENCE. 6. ON THE OTHER HAND , LEARNED AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE SUBMITTED THAT ALL THE DOCUMENTS INCLUDING BILLS AND VOUCHERS IN RESPECT 3 ITA NO. 5411/DEL/2013 AY: 2009 - 10 OF THE EXPENSES WERE ALREADY SUBMITTED IN REMAND PROCEEDINGS , HOWEVER , THE ASSESSING OFFICER HAS NOT RAISE D ANY SPECIFIC OBJECTIONS EXCEPT STATING THAT THE ADDITION WAS MADE IN ABSENCE OF SUPPORTING DOCUMENTS. HE FURTHER SUBMITTED THAT ONCE THE ASSESSING OFFICER HAS FAILED TO POINT OUT ANY DEFICIENCY IN THE BILLS/ VOUCHERS , FILING OF APPEAL BEFORE THE TRIBUNAL ON THE ISSUE WAS NOT PROPER ON THE PART OF ASSESSING OFFICER. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) HAS DECIDED THE ISSUE IN PARA - 6 OF HER ORDER, THE RELEVANT PART OF WHICH IS REPRODUCED AS UNDER: 6.1 THE AD - HOC DISALLOWANCE WAS MADE BY THE AO ON THE GROUND THAT VOUCHERS AND BILLS WERE NOT FURNISHED BEFORE HIM. DURING THE APPELLATE PROCEEDINGS, THE APPELLANT FILED AN APPLICATION U/R 46A FOR ADMISSION OF ADDITIONAL EVIDENCES AND ALSO FILED COPIES OF BILLS AND VOUCHERS RUNNING INTO SEVERAL PAGES. THE THEN CIT(A) GAVE DIRECTIONS TO THE AO U/S 250(4) TO MAKE FU RTHER ENQUIRY WITH REGARD TO THE VERACITY OF THE CLAIMS AND SUBMIT HIS REPORT. THUS, THE ISSUE OF ADMISSION OF THE EVIDENCES IN THE CONTEXT OF RULE 46A HAS BECOME IRRELEVANT. 6.2 IN THE REMAND REPORT DATED 04.03.2013, THE AO HAS MERELY STATED THAT THE ADD ITION WAS MADE IN THE ABSENCE OF SUPPORTING DOCUMENTS. IN THE REJOINDER, THE APPELLANT HAS OBJECTED TO THE AD - HOC DISALLOWANCE, CONTENDING THAT THE BOOKS OF ACCOUNT WERE PRODUCED BEFORE THE ASSESSING OFFICER, AS RECORDED IN THE IMPUGNED ORDER; THAT COPIES OF THE BILLS AND VOUCHERS WERE FILED DURING THE REMAND PROCEEDINGS; AND THAT NO DEFECT IN THE CORRECTNESS OR COMPLETENESS OF THE BOOKS OF ACCOUNTS WAS POINTED OUT BY THE AO. 8. W E FIND THAT THE BILLS AND VOUCHERS HAVE ALREADY BEEN FORWARDED TO THE ASSESSING OFFICER BY THE LEARNE D COMMISSIONER OF INCOME - TAX( APPEALS) FOR VERIFICATION AND NO ADVERSE COMMENT WERE FOUND HAVING BEEN GIVEN BY THE ASSESSING OFFICER AND , THEREFORE , THE LEARNE D COMM ISSIONER OF I NCOME TAX (A PPEALS) HAS RIGHTLY DELETED THE ADDI TION. IN OUR OPINION , THERE IS NO INFIR MITY IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX( APPEALS) . A CCORDINGLY , THE GROUND OF APPEAL OF THE R EVENUE IS DISMISSED. 4 ITA NO. 5411/DEL/2013 AY: 2009 - 10 9. IN THE RESULT, THE A PPEAL FILED THE R EVENUE IS DISMISSED. THE DECISION IS PRON OUNCED IN THE OPEN COURT ON 3 0 T H MAY , 2016 . S D / - S D / - ( I.C. SU DHIR ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 T H MAY , 2016 . LAPTOP / - COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI