Sanjay Nagraj Bararia , Delhi V. ITO, Ward-47(2), New Delhi

ITA 5970/DEL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5361 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 17-09-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: VIKAS GOEL
• Keywords: Unexplained cash credit; Unexplained expenditure
• Section: 68; 69

Judgement Text

1 ITA NO. 7481/DEL/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F + SMC NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBE R AND MS SUCHITRA KAMBLE, JUDIC IAL MEMBER ITA NO. 5970/DEL/2018 ( A .Y 2015-16) SANJAY NAGRAJ BARARIA 1182, BARADARI, GALI TELIYAN, DELHI AHXPB8889N (APPELLANT) VS ITO WARD-47(2) ROOM NO. 111, DRUMSHAP BUILDING NEW DELHI (RESPONDENT) APPELLANT BY SH. VIKAS GOEL, CA RESPONDENT BY SH. PRADEEP SINGH GAUTAM, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 12/06/2018 PASSED BY CIT(A)-16, NEW DELHI FOR ASSESSMENT YEAR 2015-16. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THE ORDER OF THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS)- 16, NEW DELHI UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER (AO) I.E. INCOME TAX OFFICER, WARD-47(2) NEW DELHI, TO THE EXTENT OF ADDITION U/S 68 OF THE INCOME TAX ACT1961 IS AGAINST THE FACTS OF THE CAS E AND BAD IN LAW. 2. THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) WAS WRONG IN HOLDING THE CONTENTION OF THE LD. ASSESSING OFFICER THAT TH E AMOUNT OF RS. 10,49,414/- DATE OF HEARING 29.01.2020 DATE OF PRONOUNCEMENT 18.02.2020 2 ITA NO. 7481/DEL/2018 ON ACCOUNT OF 5% OF TOTAL PAYABLE FOR SERVICES TO T RUCK DRIVERS RS. 20988280/- OUTSTANDING AS AT 31.03.2015 UNDER SUNDRY CREDITORS WAS UNEXPLAINED CASH CREDIT U/S 68 OF THE INCOME TAX ACT 1961. 3. THE ORDER OF THE HONBLE COMMISSIONER OF I NCOME TAX (APPEALS)- 16, NEW DELHI UPHOLDING THE ORDER OF THE LD. ASSESSING OFFICER (AO) I.E. INCOME TAX OFFICER, WARD-47(2) NEW DELHI, TO THE EXTENT OF ADDITION U/S 69 OF THE INCOME TAX ACT1961 IS AGAINST THE FACTS OF THE CAS E AND BAD IN LAW. 4. THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS ) WAS WRONG IN HOLDING THE CONTENTION OF THE LD. ASSESSING OFFICER THAT TH E AMOUNT OF RS. 65000/- ON ACCOUNT OF 20% OF TOTAL ADDITION TO FIXED ASSETS RS . 325000/- WAS UNEXPLAINED EXPENDITURE U/S 69 OF THE INCOME TAX AC T 1961. 3. THE ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINE SS AS A GOODS TRANSPORT AGENCY IN NAME OF M/S JAI SHREE TRANSPORT CORPORATI ON. THE ASSESSEE FURNISHED ITS RETURN OF INCOME FOR THE ASSESSMENT Y EAR 2015-16, DECLARING TOTAL INCOME AT RS. 12,18,040/- ON 30/09/2015. THE ASSES SING OFFICER OBSERVED THAT THE TRANSPORTATION INCOME HAS SHOWN LOW PROFIT AND TAX CREDIT CLAIMED IN ITR IS LESS THAN TAX CREDIT AVAILABLE IN 26AS. THE ASSESSMENT WAS COMPLETED ON 28/12/2017 THEREBY MAKING ADDITION ON ACCOUNT OF RS.10,49,414/- IN RESPECT OF 5% OF TOTAL OUTSTANDING SUNDRY CREDITORS U/S 68 OF THE INCOME TAX ACT, 1961, ADDITION OF RS. 1,30,000/- ON ACCOUNT OF UNSECURED LOANS U/S 68 OF THE ACT AS WELL AS ADDITION OF RS. 65,000/- ON ACCO UNT OF UNEXPLAINED EXPENDITURE U/S 69 OF THE ACT. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER THE ASSE SSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) PARTLY ALLOWED THE APPEAL O F THE ASSESSEE. 5. THE LD. AR SUBMITTED THAT THE DIFFERENCE BETWEEN FREIGHT INCOME COLLECTED AND HIRE CHARGES PAID TO TRUCK OPERATOR I S HIS GROSS PROFIT. WHEN GOODS ARE BOOKED FOR TRANSPORTATION A TOKEN PART PA YMENT IS MADE TO TRUCK 3 ITA NO. 7481/DEL/2018 DRIVER FOR WHICH EXPENSES AND BALANCE OF HIGHER CHA RGES IS PAID WHEN HE RETURNS AFTER DELIVERY OF GOODS. THE OUTSTANDING B ALANCE OF SUCH HIRE CHARGES RS.2,09,88,280/- WAS PAYABLE AS ON 31/3/2015 RELATI NG TO FINANCIAL YEAR 2014-15 WHICH WAS PAID IN NEXT YEAR BY THE ASSESSEE . THE LD. AR FURTHER SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS AS SESSEE SUBMITTED COMPLETE DETAILS OF CHALAN NO, GR NO, TRUCK NO, HIR E CHARGES, ADVANCE PAID, PAN, PLACE OF ORIGIN AND BALANCE OUTSTANDING AS ON 31/3/2015. BUT THE ASSESSING OFFICER INSISTED TO FURNISH BANK ACCOUNT, THE COPY OF ITR AND CONFIRMATION OF THESE OUTSTANDING. THE ASSESSEE IN HIS REPLY, THE SUBMITTED THAT TRUCK DRIVERS ARE NOT AVAILABLE AT ADDRESSES G IVEN. HENCE, THESE DETAILS CANNOT BE FURNISHED IMMEDIATELY BECAUSE THE SAME DE PENDS ON APPROVAL OF SAID TRUCK OWNER/DRIVER. THE ASSESSING OFFICER MAD E PRESUMPTIVE 5% ADDITION ON ACCOUNT THAT THE ASSESSEE FAILED TO FURNISH ANY PROOF OF REPAYMENT. THE LD. AR SUBMITTED THAT THE CIT(A) IGNORED ASSESSEES CON TENTION AND CONFIRMED THE ADDITIONS. 6. THE LD. AR SUBMITTED THAT THE CIT(A) IGNORED THE FACT THAT THE ADDITION IN INCOME HAS BEEN MADE U/S 68 OF THE ACT ON PRESUMPTI VE BASIS WITHOUT ANY REASONING. 7. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A).. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. FROM THE PERUSAL OF THE RECORDS, IT CAN BE SEEN THAT THE ASSESSEE HAS NOT PROVIDED THE CONFIRMATION, BANK ACCOUNT; COPY O F ITR WAS NOT PROVIDED AT THE TIME OF ASSESSMENT PROCEEDINGS AND ASKED FOR FU RTHER TIME WHICH WAS NOT GIVEN BY THE ASSESSING OFFICER. THE ASSESSING OFFI CER HAS MADE THE ADDITION ON THE PRESUMPTIVE BASIS WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE TO PROVIDE THE SUBSTANTIAL EVIDENCE. THEREFORE, IT WILL BE APPROP RIATE TO REMAND BACK THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER BY ALLOW ING THE ASSESSEE TO SUBMIT THE 4 ITA NO. 7481/DEL/2018 DETAILS WHICH WAS ASKED BY THE ASSESSING OFFICER AN D AFTER VERIFYING THE EVIDENCE MAKE THE REASONABLE ADDITION ACCORDINGLY. THUS, GROUND NO. 1 & 2 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. 9. AS REGARDS GROUND NO. 3, THE SAME ALSO NEEDS TO BE VERIFIED. THEREFORE, WE ARE REMANDING BACK THE ADDITION U/S 69 IN RESPEC T OF UNEXPLAINED EXPENDITURE. GROUND NO. 3 IS PARTLY ALLOWED FOR ST ATISTICAL PURPOSE. 10. AS REGARDS, GROUND NO. 4, THE AMOUNT OF RS. 65, 000/- ON ACCOUNT OF 20% OF TOTAL ADDITION TO FIX ASSETS WAS DULY EXPEND ITURE BY THE ASSESSEE DURING THE ASSUMPTION PROCEEDINGS WHICH WAS TOTALLY IGNORE D BY THE ASSESSING OFFICER AS WELL AS CIT(A). THUS, GROUND NO. 4 IS ALLOWED. 11. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH FEB RUARY, 2020. SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 5 ITA NO. 7481/DEL/2018 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 30. 01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30. 01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 9 . 0 2 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 9 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 . 0 2 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER