Sh. Vijay Kumar Bahl, New Delhi V. ITO, New Delhi

ITA 6752/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3213 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Assessee Lawyers: DEVENDER PAL
• Keywords: Rectification of order; Audit objection; Assessment record
• Section: 143(3); 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 6752/DEL/2015 ASSESSMENT YEAR: 2009-10 SH. VIJAY KUMAR BAHL, VS. ITO, WARD 62(4), PROP. M/S NEW BHAGAT CIVIC CENTRE, SUGAR DEPOT, NEW DELHI 5415-16, LADOO GHATI, NEHRU BAZAR, PAHAR GANJ, NEW DELHI 110 055 (PAN: AGGPB6350G) (ASSESSEE) (RESPONDENT) A SSESSEE BY : SH. DEVENDER PAL, ADV. REVENUE BY : SH. V.K. JIWANI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 27.10.2015 PASSED BY THE LD. CIT(A)-20, NEW DELHI RELATING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUND:- 1. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF T HE CASE THE IMPUGNED ORDER AS PASSED BY THE LD. CIT(A) DATED 27 .10.2015 PARTLY UPHOLDING THE ORDER OF THE AO TO THE EXTENT OF PART DISALLOWANCE IS AGAINST THE LAW AND FACTS AND CIRC UMSTANCES OF THE CASE. 2. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) FAILED TO APPRECIATE THAT THE RIGHT TO RECEI VE THE SUM OF RS. 9,13,000/- ACCRUE ONLY AFTER THE SETTLEMENT OF ACCOUNTS IN FINANCIAL YEAR 2009-10 (AY 2010-11) AS CORRECTLY TA KEN INTO 2 ACCOUNT BY THE APPELLANT / ASSESSEE BY CREDITING IT S PROFIT AND LOSS ACCOUNT IN THE FINANCIAL YEAR 2009-10 (AY 2010 -11). 3. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) DID NOT APPRECIATE THE FACTS OF THE CASE AND HAS RELIED ON THE ORDERS OF THE AO WHO HAS ERRED IN PASSING TH E RECTIFICATION ORDER U/S. 154 OF THE ACT WHICH IS BAD IN THE EYES OF LAW AS SUCH THE AO HAS ALLEGED IN ITS NOTICE AND FURTHER IN HIS ORDER UNDER SECTION 154 THAT THERE IS NO MENTION OF THE HINDUS TAN UNILEVER LTD. IN PARTY WISE LIST, WITHOUT UNDERSTANDING, CON SIDERING AND APPRECIATING THE PROVE FACT THAT THE SAID COMPANY IS THE SUPPLIER OF THE APPELLANT / ASSESSEE, THEREFORE, NON EXISTEN CE IN THE PATY WISE LIST OF THE SUPPLIER COMPANY IS CORRECT. 4. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF T HE CASE THE LD. CIT(A) AS WELL AS AO FAILED TO APPRECIATE AND T AKE NOTE OF THE EVIDENCES, DETAILS CLARIFICATION FILED BY THE ASSES SEE/ APPELLANT DURING THE COURSE OF ORIGINAL ASSESSMENT, WHILE FAR MING RECTIFICATION ORDER U/S. 154 OF THE ACT AND DURING THE FIRST APPEAL PROCEEDINGS WITH REGARD TO TDS DEDUCTED ON INCOME E ARNED FROM CENTRAL BANK OF INDIA, BHARTI AIRTEL LTD. AND HIND USTAN UNILEVER LTD. 5. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) AS WELL AS AO FAILED TAKE NOTE THAT THE ASSESSEE / APPELLANT HAS SHOWN HIS SALES / PURCHASE ON NET BA SIS AFTER EXTENDING / PASSING ON ALL THE SCHEMES, COMMISSIONS , DISCOUNTS, TRADE DISCOUNTS, CLAIMS ETC., BY WHATEVER INVOICES AS PER MARKET 3 PRACTICE AND AS MANDATED IN LAW FOR THE TIME BEING IN FORCE AND FURTHER TO CONCLUDE TO PASS THE RESPECTIVE ORDER. 6. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF TH E CASE THE AO AS WELL AS LD. CIT(A) FURTHER FAILED TO APPRECIA TE THAT THE DATE AS EXISTED ON 8.5.2009 IN FORM 26AS HAS BEEN FURTHE R CHANGED BY THE DECISIONS IN THE YEAR 2013 WITH RETROSPECTIV E EFFECT WITHOUT EXTENDING ANY INFORMATION TO THE APPELLANTS / ASSESSSEE AFTER A SPAN OF 4 YEARS OF FULL AND FINAL SETTLEME NT OF THEIR ACCOUNTS. 7. BECAUSE IN THE FACTS AND ON THE CIRCUMSTANCES OF TH E CASE THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, OMIT TO / FROM THE GROUND OF THE APPEAL AT THE TIME OF HEARING OF APPEAL OR AT A NY TIME BEFORE THAT AS HE MAY BE SO ADVISED. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY THE PARTIES, HENCE, THE SAME ARE NOT REPRODUCED HERE F OR THE SAKE OF BREVITY. 3. AT THE TIME OF HEARING, SH. VK JIWANI, SR. DR F ILED A COPY LETTER F.NO. ACIT/WARD 62(5)/2017-18/400 DATED 05.02.2018 ENCLOSING THEREWITH THE COPY OF ORDER DATED 05.2.2018 PASSED U/S. 250/154/143(3) OF THE INCOME TAX ACT, 1961 BY THE ASSESSING OFFICE R/ACIT, WARD 62(5), NEW DELHI. A COPY OF THIS ORDER HAS BEEN GIVEN TO THE LD. COUNSEL OF THE ASSESSEE ALSO AND HE HAS GONE THROUGH THE SAME. TH E CONTENTS OF THE AFORESAID LETTER AS WELL AS AOS ORDER ARE REPRODUC ED AS UNDER:- TO 4 THE SR. DEPARTMENTAL REPRESENTATIVE, SMC - BENCH, ITAT 7TH FLOOR, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI - 110003. SIR, SUB: APPEAL NO. 6752IDEL/2015 IN THE CASE OF SH. VI JAY KUMAR BAHL, PROP. M/S NEW BHAGAT SUGAR DEPOT, 4778-B, MAIN BAZA R, PAHARGANJ, DELHI - 110055 (PAN : AGGPB6350G) FOR TH E ASST. YEAR 2006-07 - REG. KINDLY REFER TO YOUR OFFICE LETTER F .N6. SR. DR/SM C-BENCH/IT AT/20 17 -181168 DATED 09.01.2018 ON THE ABOVE SUBJECT. 2.IN THIS REGARD, KINDLY FIND ENCLOSED HEREWITH A C OPY OF APPEAL EFFECT IN PURSUANCE OF THE LD. CIT(A) -20, DELHI VIDE APPEAL NO. 363/2011-12 DATED 27.10.2015 AS WELL AS ASSESSMENT RECORDS IN O RIGINAL IN THE CASE OF AFORESAID ASSESSEE FOR KIND PERUSAL AND NECESSARY A CTION. ENCL: AS ABOVE YOURS FAITHFULLY, SD/- (RAJESH KUMAR) ASSISTANT COMMISSIONER OF INCOME TAX WARD 62(5), NEW DELHI COPY FOR KIND INFORMATION TO: THE ADDL. COMMISSIONER OF INCOME TAX, RANGE 62, NEW DELHI ASSISTANT COMMISSIONER OF INCOME TAX WARD 62(5), NEW DELHI 5 NAME & ADDRESS OF THE ASSESSEE SH. VIJAY KUMAR BAH L PROP. M/ S NEW BHAGAT SUGAR DEPOT 5415-16, LADDO GHATI, NEHRU BAZAR, PAHARGANJ, NEW DELHI -110055. PAN AGGPB6350G STATUS INDIVIDUAL ASSESSMENT YEAR 2009-10 RANGE/ CIRCLE/WARD WARD-62(5), NEW DELHI ORDER PASSED UNDER SECTION 250/154/143(3) OF INCOM E TAX ACT, 1961 DATE OF ORDER 05.02.2018 ORDER U/S 250/154/143(3) OF THE INCOME TAX ACT, 196 1 IN THIS CASE, ASSESSMENT FOR THE AY. 2009-10 WAS CO MPLETED U/S 143(3) OF THE INCOME TAX ACT 1961 ON 23.12.2011 AT AN INCOME OF RS.4,12,850/ - AGAINST THE RETURNED INCOME OF RS. 3 ,79,201/ -. THE RECORD WAS AUDITED AND AUDIT OBJECTION DATED 27.03.2012 WA S FRAMED REGARDING ESCAPED ASSESSMENT OF RS. 31,16,672/ -. ACCORDINGLY RECTIFICATION ORDER U/S. 154 OF THE I.T. ACT, WAS PASSED WITH RE ASSESS ED INCOME OF RS. 35,29,526/-. AGGRIEVED WITH THE ORDER PASSED U/S 15 4 OF THE LT. ACT, BY THE ITO, WARD-38(4), NEW DELHI, THE ASSESSEE PREFER RED AN APPEAL BEFORE THE LD. CIT (A)-20, NEW DELHI. THE LD. CIT(A)-20, N EW DELHI IN HIS DECISION HAS DIRECTED THE ASSESSING OFFICER, VIDE A PPEAL NO. 363/2011-12 DATED 27.10.2015 TO VERIFY WHETHER PART OF THE RECE IPTS HAVE BEEN ADDED 6 TWICE WHILE PASSING RECTIFICATION ORDER U/ S 154 OF THE I.T. ACT, AND ACCORDINGLY GIVE THE CREDIT AS PER LAW. GIVING EFFE CT TO THE APPEAL ORDER, THE INCOME OF THE ASSESSEE IS COMPUTED AS UNDER:- INCOME ASSESSED U/S. 143(3) VIDE ORDER DATED 16.01.2014 : RS. 4,12,850/- ADD. DIFFERENCE OF AMOUNT OF RS. 21,45,226/- CREDIT ED AS PER FORM 16 ACCOUNTED FOR IN FORM ITR 4 AND AMOU NT OF RS. 31,16,672/- REFLECTED IN FORM 26AS (NEW) I. E. RS. 9,71,446/- TAXABLE INCOME RS. 13,84,296/- ISSUE NECESSARY FORM / TAX CALCULATION/ DEMAND NOTI CE ETC. AS PER THE I.T. ACT. SD/- (RAJESH KUMAR) ASSISTANT COMMISSIONER OF INCOME TAX WARD 62(5), NEW DELHI COPY TO THE ASSESSEE. ASSISTANT COMMISSIONER OF INCOME TAX WARD 62(5), NEW DELHI 4. AFTER PERUSING THE AFORESAID LETTER DATED 05.02. 2018 AND ORDER DATED 05.2.2018 PASSED U/S. 250/154/143(3) OF THE I NCOME TAX ACT, 1961 BY THE ASSESSING OFFICER/ACIT, WARD 62(5), NEW DELHI, I AM OF THE CONSIDERED VIEW THAT THE PRESENT APPEAL OF THE ASS ESSEE HAS BECOME 7 INFRUCTUOUS. HOWEVER, ASSESSEE CAN SEEK LEGAL REM EDY, AS PER LAW, IF HE AGGRIEVED BY THE AFORESAID ORDER DATED 05.02.2018 PASSED BY THE AO U/S. 250/154/143(3) OF THE INCOME TAX ACT, 1961. WI TH THIS OBSERVATION, THIS APPEAL OF THE ASSESSEE IS DISMISSED AS INFRUCT UOUS. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON 01/03/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:- 01/03/2018 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