ITO, New Delhi V. Smt. Meenakshi Aggarwal, New Delhi

ITA 687/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3469 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 01-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 06-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K YADAV SENIOR
• Keywords: Opportunity of being heard
• Section: 80C; 145; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.687/DEL./2014 (ASSESSMENT YEAR : 2009-10) ITO, WARD 36 (3), VS. SMT. MEENAKSHI AGGARWAL, NEW DELHI. FLAT NO.117, KRIPAL APARTMENT, I.P. EXTENSION, PATPARGANJ, NEW DELHI. (PAN : AHDPA2912K) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI A.K. YADAV, SENIOR DR DATE OF HEARING : 26.10.2017 DATE OF ORDER : 30.10.2017 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, INCOME-TAX OFFICER, WARD 36 (3), NEW DELHI (HEREINAFTER REFERRED TO AS THE REVENUE), BY FILI NG THE PRESENT APPEAL, SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 29.11.2013 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- XXVII, NEW DELHI QUA THE ASSESSMENT YEAR 2009-10 ON THE GR OUNDS INTER ALIA THAT :- ITA NO.687/DEL./2014 2 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AND NOT IN CONSONANCE WITH FACTS OF THE CASE. 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN REDUCING THE NET PROFIT FROM 2% TO 1% OF THE TURNOVER BY ESTIMATING THE NET PROFIT AT 1% I.E. RS.20,75,183/- INSTEAD OF 2% I.E. RS.41,50,365/- OF THE TURNOVER OF RS.20,75,18,242/- AS WAS MADE BY THE A.O. 3. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN DELETING THE ADDITION OF RS.1,52,67,037-,THE A.O. ON ACCOUNT OF UNSECURED LOANS AND SUNDRY CREDITORS U/S 41 (1) OF THE ACT.' 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : DURING SCRUTINY PROCEEDIN GS ON ACCOUNT OF FAILURE OF THE ASSESSEE TO ATTEND ASSESSMENT PROCEE DINGS, ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE INCOME- TAX ACT, 1961 (FOR SHORT THE ACT) AFTER REJECTING THE BOOKS OF ACCOUNT U/S 145 (3) OF THE AC BY ESTIMATING THE NET PROFIT AT 2% OF THE TURNOVER I.E. RS.47,63,383/-. AO HAS ALSO ADDE D BACK UNSECURED LOANS AND SUNDRY CREDITORS OF RS.1,52,67, 037/- U/S 41 (1) ITA NO.687/DEL./2014 3 OF THE ACT BY DISALLOWING THE DEDUCTION CLAIMED U/S 80C OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION MADE B Y THE AO BY PARTLY ALLOWING THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF CHALLENGING T HE IMPUGNED ORDER PASSED BY LD. CIT (A) . 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. GROUND NO.1 6. GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT RE QUIRE ANY ADJUDICATION. GROUND NO.2 7. UNDISPUTEDLY, THE ASSESSEE HAS NOT PREFERRED TO APPEAR BEFORE THE LD. AO AS WELL AS LD. CIT (A) DURING ASSESSMENT AS WELL AS ITA NO.687/DEL./2014 4 APPELLATE PROCEEDINGS. AO REJECTED THE BOOKS OF AC COUNT WITHOUT PERUSING THE SAME AS THE SAME HAVE NEVER BEEN PRODU CED BEFORE HIM DURING THE ASSESSMENT PROCEEDINGS AND PROCEEDED TO ESTIMATE THE NET PROFIT AT 2% ON THE BASIS OF GUESSWORK. LI KEWISE, LD. CIT (A) ALSO REDUCED THE NET PROFIT FROM 2% TO 1% WITHO UT PREFERRING TO CALL ANY REMAND REPORT FROM THE AO. SO, IN THESE C IRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT TO DECIDE THE CO NTROVERSY ONCE FOR ALL, THE MATTER IS REQUIRED TO BE REMITTED BACK TO THE AO TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEI NG HEARD. CONSEQUENTLY, GROUND NO.2 IS DETERMINED IN FAVOUR O F THE REVENUE FOR STATISTICAL PURPOSES. GROUND NO.3 8. AO MADE ADDITION OF RS.1,52,67,037/- U/S 41(1) O F THE ACT BY DOUBTING THE GENUINENESS OF THE UNSECURED LOANS AND SUNDRY CREDITORS DESPITE THE FACT THAT NO MATERIAL HAS COM E ON RECORD BEFORE THE AO TO DOUBT THE GENUINENESS OF THE UNSEC URED LOANS AND SUNDRY CREDITORS. MOREOVER WHEN BOOKS OF ACCOUNT H AVE BEEN REJECTED U/S 145 OF THE ACT, SEPARATE ADDITION ON A CCOUNT OF UNSECURED LOAN AND SUNDRY CREDITORS CANNOT BE MADE. HOWEVER AGAIN, LD. CIT (A) HAS DELETED THE ADDITION ON THE BASIS OF WHIM AND FANCIES WITHOUT GETTING THE GENUINENESS OF THE UNSECURED LOAN ITA NO.687/DEL./2014 5 AND CREDITWORTHINESS OF THE CREDITORS BY CALLING A REMAND REPORT FROM THE AO. SO, WE ARE OF THE CONSIDERED VIEW TH AT THIS GROUND IS ALSO REQUIRED TO BE REMITTED BACK TO THE AO TO DECI DE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSE SSEE. GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 9. RESULTANTLY, THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 30 TH DAY OF OCTOBER, 2017. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 30 TH DAY OF OCTOBER, 2017 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXVII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.