Sh. Jitender Kumar, New Delhi V. ITO, New Delhi

ITA 6198/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7388 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 17-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DHARMENDER KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NOS. 6198/DEL/2015 ASSESSMENT YEAR: 2009-10 SH. JITENDER KUMAR, VS. ITO, WARD 21(2) B-1/63, BUDH VIHAR, NEW DELHI PHASE-I, NEW DELHI (PAN: ATOPK3652P) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. DHARMENDER KUMAR, CA REVENUE BY : NONE DATE OF HEARING ON : 17/08/2016 ORDER PRONOUNCED ON : 16/08/20 16 PER H.S. SIDHU, JM ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 17.3.2015 PASSED BY THE LD. CIT(A)-13, NEW DELHI RE LATING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THAT THE ASSESSE WAS DOING THE BUSINESS AS T RADING OF READYMADE GARMENTS AT BUDH VIHAR DELHI-86 & HE FILL ED LNCORNETAX RETURN VIDE ACKNOWLEDGEMENT NO. 19891 ON 31/03/10 DECLARING THE INCOME OF RS. 200920/- FORM THE BUSINESS. 2. THAT HE CLAIMED DEDUCTIONS RS.51600/- UNDER C HAPTER VI A AND AFTER DEDUCTION HE NET INCOME WAS SHOWN RS.- 149320/- 2 3. THAT DURING THE ABOVE YEAR HE DEPOSITED CASH R S.- 1719160/-IN HIS BANK ACCOUNT. 4. THAT IN THE ABOVE YEAR THE ASSESSE MADE SALE OF RS.- 1839500/-DURING THE F.Y.- 2008-2009 (A.Y.2009-2010) . 5. THAT ALL THE CASH DEPOSITED IN BANK ACCOUNT O UT OF SALE PROCEEDS MADE BY HIM. 6. THAT THE ASSESSE FILED HIS INCOME TAX RETURN U/S 44AF UNDER THE INCOME TAX ACT. IN HIS RETURN HE SHOW THE FOLLOWING AMOUNT IN HIS INCOME TAX RETURN- A. SALE -RS, 1839500 B. STOCK- RS. 76240 C. CASH IN HAND -RS. 13500 D. PROFIT - RS. 200920 7. THAT IN THE ABOVE ASSESSMENT YEAR -2009-2010.T HE FOLLOWING CONDITION WERE APPLIED FOR FILLING THE RE TURN ON U/S.44AF INCOME TAX ACT. A. THE PROVISIONS OF SECTION 44AF APPLIED TO AN A SSESSEE ENGAGED IN THE BUSINESS OF RETAIL TRADE IN ANY GOOD S OR MERCHANDISE, WHOSE TOTAL TURNOVER FORM THE SAID BUS INESS DOES NOT EXCEED RS. 4000000/ IN THE PREVIOUS YEAR. B. THE PROFIT FROM BUSINESS SHALL BE DEMAND TO B E 5% OF TOTAL TURNOVER OF THE ASSESSES DURING THE PREVIOUS YEAR O R HIGHER SUM AS MAY BE DECLARED BY THE ASSESSES. C. THE ASSESSES IS NOT REQUIRED EITHER TO MAINTA IN BOOKS OF ACCOUNT U/S. 44AF 3 HOWEVER, IF THE ASSESSES CLAIMS THAT THE PROFIT FRO M THE BUSINESS OF RETAIL TRADE IS LESS THAN 5% OF THE TOTAL TURNOV ER IN PREVIOUS YEAR, THEN, HE IS REQUIRED TO MAINTAIN BOOKS OF ACC OUNTS U/S.44AA(2) AND ALSO GET THE SAME AUDITED U/S.44AB, IRRESPECTIVE OF MONETARY LIMITS OF TOTAL TURNOVER/I NCOME, OF THAT PREVIOUS YEAR (VIDE SECTION 441 F(5)) . 8. THAT THE ASSESSES FULFILLED ALL THE CONDITION U/S. 44AF OF THE INCOME TAX ACT. BECAUSE HE SHOWN HIS INCOME MORE TH AN 5% OF THE TOTAL TURNOVER. 9. THAT THE ASSESSES DEPOSITED THE SAME OF RS 171 9160/ IN THE BANK ACCOUNT AND HE ALSO MADE WITHDRAWALS OF CASH RS.2291500/ DURING THE ABOVE A.Y.2009-10 FORM THE B ANK. 10. THAT THE ASSESSES IN A VERY OLD ASSESSES AND HE IS FILLED HIS INCOME TAX RETURN REGULARLY. 11. THAT ALL ASSESSES WAS TRYING TO EXTEND HIS BUSI NESS THAT'S WHY ALL THE TRANSACTION OF CASH DEPOSITED & MADE TH E PAYMENT TO SUPPLIER IN ADVANCE ASSESSES HAD RE INVE STED HIS ALL PAST SAVINGS CAPITAL. 12. THAT THE ASSESSES NOT RECEIVED ANY NOTICE FROM THE DEPARTMENT AND THE ASSESSING OFFICER WITHOUT SERVIN G ANY NOTICES PASS THE ORDER AND WITHOUT SEEN THE FACTS D ECLARED IN THE ITR U/S. 44AF. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY THE LD. A.R. OF THE ASSESSEE, HENCE, THE SAME ARE N OT REPEATED HERE FOR THE SAKE OF CONVENIENCE. 3. NOTICE OF HEARING WAS SENT TO BOTH THE PARTIES AND IN RESPONSE TO THE SAME NONE APPEARED ON BEHALF OF THE DEPART MENT, NOR ANY APPLICATION FOR ADJOURNMENT HAS BEEN FILED BY THE D EPARTMENT. 4 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, I AM OF THE CONSIDERED VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED TO SERVE THE NOTICE AGAIN AND AGAIN TO THE DEPARTMENT, THEREFORE, I AM DECIDING THIS APPEAL AS EXPARTE QUA DEPARTMENT, AFT ER HEARING THE LD. AR OF THE ASSESSEE AND PERUSING THE RECORDS. 4. AT THE TIME OF HEARING, LD. AR OF THE ASSESSEE HAS STATED THAT ASSESSEE IS HAVING ALL THE DOCUMENTARY EVIDENCE FOR SUBSTANTIATING HIS CLAIM, BUT THE REVENUE AUTHORITIES HAS NOT GIVEN TH E SUFFICIENT OPPORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING THE CLAIM BEFORE IT. LD. AR OF THE ASSESSEE FURTHER STATED THAT AO HAS COMPL ETED THE ASSESSMENT U/S. 143(3)/144 OF THE INCOME TAX ACT, 1 961 AND MADE THE ADDITION. SIMILARLY, THE LD. CIT(A) HAS UPHELD THE ADDITION MADE BY THE AO BY HOLDING THAT THE ASSESSEE DID NOT FU RNISH ANY EXPLANATION DURING THE ASSESSMENT PROCEEDINGS AS WE LL AS APPELLATE PROCEEDINGS WHICH IS CONTRARY TO THE FACTS AND LAW. IN FACT THE ASSESSEE HAS GIVEN THE EXPLANATION WITH THE DOCUMEN TARY EVIDENCE FOR SUBSTANTIATING THE CLAIM, BUT THE SAME HAS NOT BEEN CONSIDERED BY THE REVENUE AUTHORITIES. HE REQUESTED THAT THE ISSUE IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERA TION AND FOR SUBSTANTIATING THE CLAIM OF THE ASSESSEE. LD. AR O F THE ASSESSEE ALSO UNDERTAKES THAT ASSESSEE WILL FULLY COOPERATE IN TH E ASSESSMENT PROCEEDINGS AND WILL NOT TAKE ANY UNNECESSARY ADJOU RNMENT. 5. I HAVE HEARD THE LD. AR OF THE ASSESSEE AND CONS IDERED THE SUBMISSIONS MADE BY HIM. I FIND CONSIDERABLE COGEN CY IN THE CONTENTION RAISED BY THE LD. AR THAT THE ASSESSEE H AS GIVEN THE EXPLANATION WITH THE DOCUMENTARY EVIDENCES FOR SUB STANTIATING THE CLAIM, BUT THE SAME HAS NOT BEEN CONSIDERED BY THE REVENUE AUTHORITIES WHICH IS NOT PERMISSIBLE UNDER THE LAW. THEREFORE, IN THE INTEREST OF JUSTICE, I SET ASIDE THE ISSUES IN DISP UTE TO THE FILE OF THE AO FOR FRESH CONSIDERATION, AS PER LAW, AFTER CONSIDER ING ALL THE 5 DOCUMENTARY EVIDENCES. HOWEVER, THE ASSESSEE IS DI RECTED TO FULLY COOPERATE WITH THE AO DURING THE PROCEEDINGS BEFOR E HIM AND NOT TO TAKE ANY UNNECESSARY ADJOURNMENT IN THE CASE AND AL SO PRODUCE ALL THE NECESSARY EVIDENCES BEFORE THE AO TO SUBSTANTIA TE HIS CLAIM. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17/08/2016 . SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 17/08/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 6