Yash Dev Behl , New Delhi V. ITO, Ward- 49(5), New Delhi

ITA 6804/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3283 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 13-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Assessee Lawyers: U S AGARWAL
• Keywords: Depreciation
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 6804 /DEL/201 7 [A.Y. 20 1 3 - 1 4 ] SHRI YASH DEV BAHL VS. THE D.C. I . T . A - 3/1, JANAKPURI CIRCLE - 4 ( 2 ) N E W DELHI NEW DELHI PAN : A A GPB 5492 H [ ASSESSEE ] [RESPONDENT] DATE OF HEARING : 2 0 . 0 2 .201 8 DATE OF PRONOUNCEMENT : 06 .0 3 .201 8 ASSESSEE BY : S HRI U.S. AGARWAL, ADV REVENUE BY : SHRI V.K. JIWANI , SR. DR ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - 17, NEW DELHI VIDE ORDER DATED 15.09.2017. 2. THE ASSESSEE IS AGGRIEVED WITH THE ADDIT ION OF RS.25,66,390/ - BEING THE TOTAL CONTRACT RECEIPTS WHERE TOTAL INCOME HAS BEEN DECLARED @12% OF THE CONTRACT RECEIPTS. 3. THE BRIEF FACTS OF THE CASE AS PER THE ASSESSMENT ORDER ARE THAT THE ASSESSEE HAD IN THE BANK STATEMENT (CURRENT ACCOUNT NO.1 331 OF 2 ITA NO. 6804 /DEL/201 7 IOB) DECLARED A CREDIT OF RS.25 LACS ON 30.03.2013. THIS AMOUNT WAS SHOWN AS CONTRACTUAL RECEIPTS FROM Y.D. BUILDERS AND HOTELS PVT. LTD. ON WHICH THE ASSESSEE HAD SHOWN INCOME OF 12.5% U/S 44AD. IN THE CASH FLOW STATEMENT FILED BY THE ASSESSEE ON THE DIRECTIONS OF THE AO ONLY OPENING BALANCE OF RS.5,630/ - ON 01.04.2012 AND CLOSING BALANCE OF RS.5,630/ - ON 01.04.2013 WAS SHOWN. IT WAS CLAIMED BY THE ASSESSEE THAT HE HAD RECEIVED RS.25,66,390/ - ON WHICH NET PROFIT AT 12% U/S 44AD HAD BEEN SHOWN. N O DOCUMENTS OTHER THAN THE WORK ORDER, BANK ACCOUNT AND GROSS CONTRACT RECEIPTS WERE POSSESSED BY THE ASSESSEE. THE ASSESSING OFFICER THEN EXAMINED THE AUTHENTICITY OF THE CLAIM OF THE ASSESSEE. IT WAS OBSERVED THAT : THE CONTRACT WITH M/S. Y.D. BUILDERS & HOTELS PVT. LTD. WAS ON A PLAIN PAGE WHICH WAS NEITHER REGISTERED NOR NOTARIZED. M/S. Y.D. BUILDERS & HOTELS PVT. LTD. WAS THE COMPANY OF ASSESSEES SON AND THE ASSESSEE HIMSELF HAS 37.3% SHARE IN THE SAID COMPANY. THE ASSESSING OFFICER HELD THAT RS.25 ,66,390/ - RECEIVED BY THE ASSESSEE HAS BEEN GIVEN A SHAPE OF CONTRACT TO ESCAPE THE PROVISION OF SEC.2(22)(E). M/S. Y.D. BUILDERS & HOTELS PVT. LTD. GOT CONTRACT OF RS.15,92,26,466/ - FROM DDA ON 17.09.2011 WHICH WAS TO BE COMPLETED IN 18 MONTHS. 3 ITA NO. 6804 /DEL/201 7 THERE IS NO EVIDENCE WITH REGARD TO ACTUAL WORK DONE OF M/S. Y.D. BUILDERS & HOTELS PVT. LTD. AND THE INCURRING OF EXPENSES FILED BY THE ASSESSEE. AS PER THE PAYMENT WORK ORDER DATED 08.11.2012, THE MONTHLY RA BILL AGAINST COMPLETION OF WORK HAS TO BE CERTIFIED B Y THE ENGINEER INCHARGE AND HAS TO CONTAIN NAMES OF LABOUR EMPLOYED, PF DEDUCTED, CONTRACTORS CONTRIBUTION, AMOUNT DEPOSITED IN RPFC, COPY OF CHALLAN OF AMOUNT DEPOSITED IN RPFC, CERTIFICATION BY DDA OF THE WORK DONE BY THE CONTRACTOR, BITUMEN CONTENT TE ST CERTIFICATE TO BE PROVIDED BY THE CONTRACTOR, MEASUREMENT SHEET SIGNED BY THE ENGINEER IN - CHARGE, RECEIPTS OF PROCUREMENT OF BITUMEN FROM THE SUPPLIER, MATERIAL RECONCILIATION STATEMENT. NONE OF THESE DOCUMENT S WERE PRODUCED BY THE ASSESSEE. THE ASSE SSEE CLAIMED THAT THE EXPENSES WHICH HAD BEEN INCURRED BY HIM TO DO THE CONTRACTUAL WORK WERE AS UNDER: - 4 ITA NO. 6804 /DEL/201 7 DATE PARTICULARS AMOUNT REMARKS 14.07.12 CHEQUE ISSUED TO ADVOCATE 3,483.00 CHEQUE ISSUED FROM INDIAN OVERSEAS BANK, A/C NO.3713 05.12.12 CHEQUE ISSU ED FOR EXPENDITURE AGAINST CONTRACT RECEIPTS 95,200.00 CHEQUE ISSUED FROM INDIAN OVERSEAS BANK, A/C NO.3713 31.03.13 CAR DEPRECIATION 27,750.00 31.03.13 CHEQUE ISSUED FOR EXPENDITURE AGAINST CONTRACT RECEIPTS 21,13,062.00 CHEQUE ISSUED FROM INDIAN OVERS EAS BANK, A/C NO.1331 31.03.13 EXPENSES PAYABLE PAID IN NEXT YEAR AGAINST CONTRACT RECEIPTS 18,928..00 TOTAL (RS.) 22,58,423.00 4. THE ASSESSING OFFICER ON PERUSAL OF THE ABOVE DETAILS CONCLUDED THAT MOST OF THE EXPENSES HAVE BEEN STATED TO BE INCUR RED ON 31.03.2013. NEITHER THE CHEQUE NUMBER NOR THE PERSON TO WHOM PAYMENT HAS BEEN MADE WERE PROVIDED BY THE ASSESSEE. THE BANK STATEMENT DID NOT REFLECT THE CLAIM OF EXPENSES INCURRED BY THE ASSESSEE. THE ASSESSING OFFICER THUS HELD THAT THE ASSESSEE S CLAIM THAT THE RECEIPTS WERE CONTRACTUAL RECEIPTS U/S 44AD IS NOT BORNE BY 5 ITA NO. 6804 /DEL/201 7 FACTS AND THE ENTIRE TRANSACTION IS SHAM. THE ASSESSING OFFICER THUS TREATED THE RECEIPTS OF RS.25,66,390/ - AS INCOME FROM OTHER SOURCES. 5. BEFORE THE LD. CIT(A), THE ASSESSEE FILED THE SAME BANK STATEMENT WHICH WAS FILED BEFORE THE AO AS UNDER: DATE NARRATION DEBIT CREDIT BALANCE 01.04.2013 OPENING BALANCE 25,10,698 03.04.2013 CASH VIJAY KUMAR 9,00,000 04.04.2013 CASH VIJAY KUMAR 9,00,000 19.04.2013 CASH BALAJI 1 ,00,000 19.04.2013 CASH BALAJI 1,00,000 01.05.2013 MONU BLDG. 1,13,062 3,97,636 21,13,062 NO OTHER EVIDENCE WAS FILED BEFORE THE LOWER AUTHORITIES. 6. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE HAVING DECLARED THE INCOME U/S 44AD OF THE ACT AT A NET PROFIT RATE OF 12% OF THE CONTRACT RECEIPTS. THE ASSESSEE HAS RECEIVED THE CHEQUE OF RS.25 LACS ON 31.03.2013, THE LAST DAY OF THE FINANCIAL YEAR PERTAINING TO ASSESSMENT YEAR 2013 - 14. NO WITHDRAWAL HAD B EEN SHOWN FROM THE BANK DURING THE IMPUGNED YEAR AND PRIMA 6 ITA NO. 6804 /DEL/201 7 FACIE, IT APPEARS THAT ALL THE TRANSACTIONS HAVE BEEN MADE AFTER 31.03.2013 I.E. IN THE MONTH OF APRIL AND MAY 2013 WHICH IS THE FOLLOWING YEAR OF THE IMPUGNED YEAR. EVEN IF WE ACCEPT THE ARGUMENT S MADE BY LD. AR THAT CHEQUES WERE ISSUED FOR FURTHER SUB CONTRACT, THE QUESTION ARISES WHY NOT THE SAME WERE NOT ISSUED THROUGH ACCOUNT PAYEE CHEQUE WHY THE ASSESSEE HAS DECLARED THE WITHDRAWAL OF CASH OF RS. 9 LACS EACH ON 03.04.2013 AND 04.04.2013 IN TH E NAME OF ONE SH. VIJAY KUMAR AND RS.1 LAC EACH ON 19.04.2013 IN THE NAME OF ONE SH. BALAJI. NO EVIDENCE OF WHATSOEVER KIND OF INCURRING EXPENDITURE DURING THE IMPUGNED YEAR W.R.T. SUCH PAYMENTS IN CASH OR SELF CHEQUE HAS BEEN MADE BEFORE ANY OF THE AUTHO RITIES BELOW. IT IS NOT A CASE OF ISSUANCE OF CHEQUE THROUGH PAYEES ACCOUNT WHERE AT LEAST IDENTITY OF THE PERSON COULD HAVE BEEN ENQUIRED. THE ASSESSEE HAS NOT SUBMITTED ANY COGENT EXPLANATION TO WHOM THE SAID SELF CHEQUES HAVE BEEN MADE AND IN SUCH CI RCUMSTANCES, THE PRESUMPTION IS DRAWN THAT THE ASSESSEE IN THE FOLLOWING YEAR HAS WITHDRAWN THE CASH FOR THE PURPOSE BEST KNOWN TO THE ASSESSEE. IN THE NUTSHELL, THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE GENUINENESS OF THE RETURN DECLARED U/S 44AD OF TH E ACT. THE RETURN DECLARED U/S 44AD OF THE ACT IS A MANAGED AFFAIR AND THE ASSESSEE HAS CONCEALED THE INCOME TO THE EXTENT NOT DECLARED OUT OF THE TOTAL CHEQUE RECEIVED FROM M/S. Y.D. BUILDERS AND HOTELS (P) LTD. 7 ITA NO. 6804 /DEL/201 7 ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) WHO HAS RIGHTLY CONFIRMED THE ACTION OF THE AO. A LL THE GROUNDS OF THE ASSESSEE ARE DISMISSED . 7. IN THE RESULT , THE APPEAL OF THE ASSESSEE IN ITA NO.6804/D EL /17 IS DISMISSED. THE ORDER IS PRO NOUNCED IN THE OPEN COURT ON 06 . 0 3 .201 8 . SD/ - [B.P. JAIN] ACCOUNTANT MEMBER DATED: 06 TH MARCH, 2018 VL/ COPY FORWARDED TO: 1 . ASSESSEE 2 . RESPONDENT 3 . CIT ASSISTANT REGISTRAR 4 . CIT(A) ITA T, NEW DELHI 5 . DR