Mr. Baleshwar Sharma, New Delhi V. ACIT, New Delhi

ITA 5454/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77772 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 27-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 26-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 142(1); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .5454/DEL/2012 5454/DEL/2012 5454/DEL/2012 5454/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2007 2007 2007 2007- -- -08 0808 08 MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, 59 5959 59- -- -A/2, KALU SARAI, A/2, KALU SARAI, A/2, KALU SARAI, A/2, KALU SARAI, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 0 110 0 110 0 110 016. 16. 16. 16. PAN : ABSPS9742A. PAN : ABSPS9742A. PAN : ABSPS9742A. PAN : ABSPS9742A. VS. VS. VS. VS. ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -24(1), 24(1), 24(1), 24(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.C. YADAV, ADVOCATE. RESPONDENT BY : SMT. MEENAKSHI VOHRA, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, V VV VP PP P : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-XI, NEW DELHI DATED 16 TH JULY, 2012 FOR THE AY 2007-08. 2. GROUND NOS.1 TO 4 OF THE ASSESSEES APPEAL READ AS UNDER:- 1. THE ORDER OF CIT(A) IS BAD IN LAW AND ON FACTS. 2. ON THE FACTS AND UNDER CIRCUMSTANCES OF THE CASE , THE LD.CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.6,60,000/- U/S 68 OF THE ACT. 3. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THAT TH E LENDER OF THE MONEY WAS EXPIRED AND WHATEVER BEST POSSIBLE EVIDENCES WERE AVAILABLE WITH ASSESSEE HAD BEEN PRODUCED BEFORE THE A.O. 4. THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE ORDER OF THE AO IS PASSED WITHOUT ISSUING ANY SUMMO N U/S 131 TO THE CREDITORS FROM WHOM THE ASSESSEE HAS TAK EN LOAN. ITA-5454/DEL/2012 2 3. AT THE TIME OF HEARING BEFORE US, IT IS SUBMITTE D BY THE LEARNED COUNSEL THAT THE ASSESSEE WAS NOT ALLOWED ADEQUATE OPPORTUNITY OF PRODUCING EVIDENCE WITH REGARD TO CASH CREDIT OF ` 6,60,000/- FROM MRS. MANORMA. HE POINTED OUT THAT THE ASSESSING OFFICER STARTED ASSESSMENT PROCEEDINGS BY ISSUING NOTICE UNDER SECT ION 142(1) ON 1.10.2009 FIXING THE CASE FOR HEARING ON 20.10.2009 . THAT THE CREDITOR VIZ. MRS. MANORMA HAD EXPIRED BY THE TIME ASSESSMEN T PROCEEDINGS WERE TAKEN UP AND THEREFORE, IT TOOK TIME TO OBTAIN THE CONFIRMATION FROM HER LEGAL HEIR. THAT THE ASSESSING OFFICER RA ISED SPECIFIC QUERY REGARDING UNSECURED LOAN OF ` 6,60,000/- ON 14 TH DECEMBER, 2009 AND COMPLETED THE ASSESSMENT ON 24 TH DECEMBER, 2009. THUS, NO ADEQUATE OPPORTUNITY WAS ALLOWED BY THE ASSESSING O FFICER. THAT BEFORE THE CIT(A), ASSESSEE PRODUCED THE NECESSARY DETAILS. THE CIT(A) CALLED FOR THE REMAND REPORT BUT THEREAFTER, WITHOUT APPLYING HIS MIND, HE SIMPLY, AFTER REPRODUCING THE REMAND REPOR T, SUSTAINED THE ADDITION. HE, THEREFORE, SUBMITTED THAT THE ORDER OF LEARNED CIT(A) AND THE ASSESSING OFFICER SHOULD BE SET ASIDE AND MATTE R RESTORED TO THE FILE OF THE ASSESSING OFFICER. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF LOWER AUTHORITIES AND SUBMITTED THAT SINCE THE ASSESSEE D ID NOT PRODUCE THE CONFIRMATION BEFORE THE ASSESSING OFFICER, THOUGH A DEQUATE OPPORTUNITY WAS ALLOWED, THE ASSESSING OFFICER RIGH TLY MADE THE ADDITION OF ` 6,60,000/- WHICH WAS RIGHTLY SUSTAINED BY THE LEARN ED CIT(A). SHE, THEREFORE, SUBMITTED THAT THE ORDER O F LEARNED CIT(A) SHOULD BE SUSTAINED. 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED RELEVANT MATERIAL PLACED BEFORE US. WE FIND THAT THE ASSESSING OFFICER VIDE ENQUIRY DATED 14 TH DECEMBER, 2009 ASKED THE ASSESSEE TO SUBMIT THE EVIDENCE OF THE UNSECURED LO AN OF ` 6,60,000/- ITA-5454/DEL/2012 3 RECEIVED FROM MRS. MANORMA. THE ASSESSMENT WAS COM PLETED ON 24.12.2009. THAT WAS WITHIN TEN DAYS. FROM A PERU SAL OF THE ORDER OF LEARNED CIT(A), WE FIND THAT THE CIT(A) HAS REPRODU CED THE ASSESSEES SUBMISSION, THE REMAND REPORT, REPLY OF THE ASSESSE E ON THAT REMAND REPORT AND THEREAFTER, CONCLUDED HIS ORDER JUST WIT H ONE LINE WHICH READS I THEREFORE CONFIRM THE ADDITION MADE BY THE AO. THIS GROUND OF APPEAL IS RULED AGAINST THE APPELLANT.. THUS, LEA RNED CIT(A) HAD NOT APPLIED HIS MIND. CONSIDERING THE FACTS OF THE CAS E AND ARGUMENTS OF BOTH THE SIDES, IN OUR OPINION, IT WOULD MEET THE E NDS OF JUSTICE IF THE ORDERS OF AUTHORITIES BELOW ARE SET ASIDE ON THIS P OINT AND MATTER RESTORED TO THE FILE OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY AND DIRECT THE ASSESSING OFFICER TO ALLOW ADEQUATE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREAFTER READJUDICATE T HE ISSUE IN ACCORDANCE WITH LAW. 6. GROUND NO.5 IS AGAINST THE 10% DISALLOWANCE OUT OF CAR AND TELEPHONE EXPENSES ETC. THE PERSONAL USE OF CAR AN D TELEPHONE CANNOT BE DENIED AND THEREFORE, 1/10 TH DISALLOWANCE OUT OF THIS EXPENDITURE IS QUITE FAIR AND REASONABLE. THE SAME IS SUSTAINED A ND GROUND NO.5 IS REJECTED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 24 TH JUNE, 2014. SD/- SD/- ( (( (R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL M MM MEMBER EMBER EMBER EMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 24.06.2014 VK. ITA-5454/DEL/2012 4 COPY FORWARDED TO: - 1. APPELLANT : MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, MR. BALESHWAR SHARMA, 59 5959 59- -- -A/2, KALU SARAI, NEW DELHI A/2, KALU SARAI, NEW DELHI A/2, KALU SARAI, NEW DELHI A/2, KALU SARAI, NEW DELHI 110 016. 110 016. 110 016. 110 016. 2. RESPONDENT : ASSISTANT COMMISSIONER OF INCOME TA X, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE CENTRAL CIRCLE- -- -24(1), NEW DELHI. 24(1), NEW DELHI. 24(1), NEW DELHI. 24(1), NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR