DCIT, New Delhi V. Shyam Shanker Gupta, New Delhi

ITA 5909/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6776 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 07-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE SH. N. K. SAINI, A M AND SMT. BEENA PILLAI , JM I TA NO. 5909/DEL/2013 : ASSTT. YEAR : 2009 - 10 DY. COMMISSIONE R OF INCOME TAX, CENTRAL CIRL E - 11 , NEW DELHI VS SH. SHYAM SHANKER GUPTA, A - 96, PRIYADARSHINI VIHAR, NEW DELHI (APPELLANT) (RESPONDENT) CO NO. 295/DEL/2015 : ASSTT. YEAR : 2009 - 10 SH. SHYAM SHANKER GUPTA, A - 96, PRIYADARSHINI VIHAR, NEW DE LHI VS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRLE - 11, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. AEXPG4556F ASSESSEE BY : SH. ANIL JAIN, CA REVENUE BY : SH. F. R. MEENA , SR. DR DATE OF HEARING : 08.02 .201 7 DATE OF PRONOUNCEMENT : 08 .02 .201 7 ORDER PER N. K. SAINI, AM : THE APPEAL BY THE DEPARTMENT AND THE CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 30.08.2013 OF LD. CIT(A) - XXXI, NEW DELHI. 2. IN THE DEPARTMENTAL APPEAL THE ONLY EFFECTIVE GROUND RAISED READ S AS UNDER: I TA NO. 5909 /DEL /201 03 CO NO. 295/DEL/2015 SHYAM SHANKER GUPTA 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE COMMISSIONER OF INCOME TAX(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE PROTECTIVE ADDITION OF RS.46,28,725/ - MADE BY AO ON ACCOUNT OF COMMISSION EARNED ON PROVIDING BOGUS ENTRIES BY SH. RAJVIR SINGH. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE SUBSTANTIVE ADDITION OF THE SAME AMOUNT HAS BEEN CONFIRMED BY THE LD. CIT(A) VIDE ORDER DATED 30.08.2013 IN THE CASE OF SH. RAJVIR SINGH WHO HAS ACCEPTED AND NOT CHALLENGED THE SAME BEFORE THE ITAT. IT WAS FURTHER STATED THAT IN THE SAID CASE OF SH. RAJVIR SINGH , BEFORE THE LD. CIT(A), ONLY THE RATE OF COMMISSION WA S CHALLENGED AND NOT THE EARNING OF COMMISSION. IT WAS STATED THAT WHEN THE SUBSTANTIVE ADDITION HAS BEEN MADE ALREADY I N THE HANDS OF SH. RAJVIR SINGH, T HE PROTECTIVE ADDITION IN THE HANDS OF THE ASSESSEE WAS NOT JUSTIFIED. THE RELIANCE WAS PLACED ON THE FOLLOWING DECISION OF THE ITAT: BABY SAROJINI VS DCIT IN IT(SS)A NO. 117/HYD/2004 ORDER DATED 15.05.2008 PARASMAL DANGI ALIAS PARASMALL JAIN VS ACIT 100 TTJ 508 I TA NO. 5909 /DEL /201 03 CO NO. 295/DEL/2015 SHYAM SHANKER GUPTA 3 4. IN HIS RIVAL SUBMISSIONS THE LD. DR ALTHOUGH SUPPORTED THE ORDER OF THE AO BUT COULD NOT C ONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE SUBSTAN TIVE ADDITION WAS MADE BY THE AO IN THE HANDS OF SH. RAJVIR SINGH WHO CHALLENGED THE RATE OF COMMISSION BEFORE THE LD. CIT(A) AND THE ACTION OF THE AO WAS UPHELD BY THE LD. CIT(A). IN THE PRESENT CASE, THE LD. COUNSEL FOR THE ASSESSEE STATED AT BAR THAT NO FURTHER APPEAL WAS PREFERRED BY SH. RAJVIR SINGH. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACT S ARE OF THE CONFIRMED VIEW THAT THE LD. CIT(A) RIGHTLY DELETED THE PROTECTIVE ADDITION WHEN FOR THE SAME ISSUE THE SUBSTANTIVE ADDITION WAS CONFIRMED IN HANDS OF THE ANOTHER PERSON I.E. SH. RAJVIR SINGH. WE, THEREFORE, DO NOT SEE MERIT IN THIS APPEAL OF THE DEPARTMENT. 6. AS REGARDS TO THE CROSS OBJECTION FILED BY THE ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT HE HAS INSTRUCTION NOT TO PRE SS THE CROSS OBJECTION AND GAVE IN WRITING AS UNDER: CROSS OBJECTION WITHDRAWN . I TA NO. 5909 /DEL /201 03 CO NO. 295/DEL/2015 SHYAM SHANKER GUPTA 4 7 . IN VIEW OF THE ABOVE, THE CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED AS WITHDRAWN. 8 . IN THE RESULT, THE APPEAL OF THE DEPARTMENT AND CROSS OBJECTION OF THE ASSES SEE ARE DISMISSED. ( ORDER PRON O UNCE D IN THE COURT ON 08 /02 /2017 ) SD/ - SD/ - (BEENA PILLAI ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DAT ED: 08 /0 2 /2017 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR