ACIT, Faridabad V. M/s. Sabharwal International, Faridabad

ITSSA 67/DEL/2009

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0060 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 05-02-2014
• Assessment Year: misc
• Appeal Filed On: 08-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMESH CHANDRA
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Unexplained investment; Business income; Income from undisclosed sources; Document seized; Assessment record; Documents seized
• Section: 263

Judgement Text

I.T. (SS) A. NO. 67/DEL/ 2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T. (SS).A. NO 67/DEL/2009 ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE-II, B-BLOCK, CGO COMPLEX, NH-IV, FARIDABAD BLOCK ASSTT. (BLOCK PERIOD 20.5.1998 TO 12.3.1999) M/S SABHARWAL INTERNATIONAL, SHOP NO. 31-32, NEAR HANUMAN MANDIR, MAIN MARKET NO. 1, NIT FARIDABAD (PAN: VS. (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. RAMESH CHANDRA, CIT(DR) ASSESSEE BY : SH. ASHWANI TANEJA, ADV. & SH. TARUN ADV. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), FARIDABAD DATED 22.8.2009 PERTAINING TO BLOCK PERIOD 20.5.1998 TO 1 2.3.1999. 2. IN THIS CASE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 158BC/143(3) ON THE TOTAL INCOME OF RS. 14,57,544/- ON 31.3.2001. THIS ASSESSMENT WAS SET ASIDE U/S. 263 BY THE CIT, FARIDABAD VIDE ORDER DATED 2.11.2001 ON THE FOLLOWING POINTS:- (A) NOT ADDING INCOME FROM SEIZED DOCUMENTS RELATING TO BUSINESS OF CHITS AND LUCKY CAR DRAW SCHEME WITHOUT ASSIGNING ANY REASONS. (B) INCOME TAKEN ON ACCOUNT OF UNRECORDED SALES AND CASH ON ESTIMATED BASIS. NO ENQUIRIES, I.T. (SS) A. NO. 67/DEL/ 2009 2 EXAMINATIONS AND VERIFICATIONS WERE MADE BY THE AO ON THESE ACCOUNTS. (C) SEIZED DOCUMENTS WERE NOT VERIFIED PROPERLY AND WITHOUT COLLECTING SUFFICIENT INFORMATION AND WITHOUT EXAMINING THEM ADDITIONS WERE MADE WITHOUT ASSIGNING ANY REASONS. (D) A SUM OF RS. 8,56,931/- CREDITED IN THE BANK ACCOUNT OF SH. ASHOK KUMAR WHO WAS A BENAMI OF THE ASSESSEE HAS BEEN TREATED AS INCOME FROM UNDISCLOSED SOURCES, BUT NO ADDITION OF THIS ACCOU NT HAS BEEN MADE IN THE TOTAL INCOME OF THE ASSESSEE. 2.1 CONSEQUENT UPON THE AFORESAID ORDER U/S. 263 TH E ASSESSMENT WAS TAKEN UP BY THE AO. AO OBSERVED THE POINTS MENTIONED BY THE LD. CIT IN ITS ORDER U/S. 263 ARE DEALT WITH AS UNDER:- (A) THE ASSESSEES REPRESENTATIVE HAS FILED A LETTER DATED 17.3.2003 WHEREIN IT HAS BEEN CONTENDED THAT THE ASSESSEE WAS NOT IN ANY BUSINESS OF CHIT AND LUCKY CAR DRAW SCHEME. IT IS OBSERVED FROM THE RECORDS THAT THE INCOME FROM CHIT AND LUCKY CA R DRAW SCHEME HAS BEEN TAKEN IN THE HANDS OF ITS PARTNERS NAMELY SH. BAHADUR SINGH SABHARWAL, SH. HARJEET SINGH, SH. SURJEET SINGH AND SH. JOGINDER SINGH. (B) AS PER THE TRADE PRACTICE AND THE RECORDS OF OTHER ASSESSES PROFIT ESTIMATED 10% ON THE SALES IS FOUND TO BE REASONABLE. I.T. (SS) A. NO. 67/DEL/ 2009 3 (C) THE SEIZED DOCUMENTS HAVE AGAIN BEEN VERIFIED PROPERLY AND CORRELATIONS WITH THE ADDITIONS MADE HAVE BEEN CROSS CHECKED. THE ASSESSEE HAS DENIED THAT MR. ASHOK KUMAR WAS BENAMI OF THE ASSESSEE. HOWEVER, AS PER SEIZED DOCUMENTS IT IS CLEARLY ESTABLISHED THAT THE SUM OF RS. 8,56,931/- CREDITED IN THE BANK ACCOUNT OF SH. ASHO K KUMAR PERTAINS TO THE FIRM. THEREFORE, THE SAME AM OUNT OF RS. 8,56,931/- MAY BE ADDED BACK TO THE INCOME O F THE ASSESSEE. 2.2 THEREAFTER, THE AO REPRODUCED THE ORIGINAL ORDE R U/S. 158 BC/143(3). THEREAFTER, AO COMPUTED THE INCOME AS U NDER:- INCOME AS PER ORIGINAL ORDER RS. 16,48,070/- ADD: ADD: ADD: ADD:- -- - AS DISCUSSED ABOVE IN PARA 4 RS. 8,56,931/- TOTAL INCOME TOTAL INCOME TOTAL INCOME TOTAL INCOME RS. 25,05,001/ RS. 25,05,001/ RS. 25,05,001/ RS. 25,05,001/- -- - 3. UPON ASSESSEES APPEAL LD. CIT(A) DEALT WITH THE AOS ORDER AS UNDER:- I. I.I. I. ADDITION OF RS. 8,56,931/ ADDITION OF RS. 8,56,931/ ADDITION OF RS. 8,56,931/ ADDITION OF RS. 8,56,931/- -- - 3.1 IN THIS REGARD, LD. CIT(A) OBSERVED THAT THERE IS NO BASIS FOR AO TO TREAT THE AMOUNT CREDITED IN THE BANK ACCOUNT OF SH. ASHOK KUMAR AS THE BENAMI OF THE ASSESSEE. THAT HOW ASHO K KUMAR HAS BEEN TREATED AS THE BENAMI OF THE ASSESSEE IS NEITH ER COMING OUT FROM THE IMPUGNED ORDER OF THE AO NOR FROM THE ASSE SSMENT RECORDS EXAMINED BY HIM. LD. CIT(A) HELD THAT THERE WAS NO BASIS FOR THE AO TO CONCLUDE THAT AS PER THE SEIZED DOCUMENTS THE AMOUNT I.T. (SS) A. NO. 67/DEL/ 2009 4 CREDITED IN THE BANK ACCOUNT OF SH. ASHOK KUMAR WAS TO BE TREATED AS BENAMI OF THE ASSESSEE. ACCORDINGLY, LD. CIT(A) DELETED THE ADDITION OF RS. 8,56,931/-. II. II.II. II. DELETION OF ADDITION OF DELETION OF ADDITION OF DELETION OF ADDITION OF DELETION OF ADDITION OF R RR RS. S.S. S. 6,40,896/ 6,40,896/ 6,40,896/ 6,40,896/- -- - 3.2 ON THIS ISSUE AO MADE THE ADDITION OF RS. 6,40, 896/- ON ACCOUNT OF ALLEGED STOCKS WHICH WAS WORKED OUT ON T HE BASIS OF FIGURES OF PURCHASE AND SALES RETURNED BY THE ASSES SEE AND THE COST OF FURNITURE AND FIXTURE AND CASH IN HAND. THE AO ON THIS ISSUE IN HIS ORIGINAL ORDER HAS OBSERVED THAT AS PER SHOW CAUSE NOTICE DATED 23.3.2001 CLOSING STOCK AS ON 31.12.1998 WAS WORKED AT RS. 11,86,544/- AND NET INVESTIBLE CAPITAL AVAILABLE WI TH THE ASSESSEE FOR THE PURCHASE OF STOCK WAS RS. 5,45,648/-. THUS, A O HELD THAT UNEXPLAINED CLOSING STOCK AS ON 31.12.1998 REMAINS AT RS. 6,40,896/-. THIS WAS HELD TO BE UNEXPLAINED INCOME FOR THE BLOCK PERIOD. THE BASIS OF MAKING THE ABOVE ADDITIONS AS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE TO THE LD. CIT(A) W ERE AS UNDER:- THE BASIS FOR MAKING ADDITION IS GIVEN IN SHOW CAU SE NOTICE DATED 23.3.2001 ACCORDING TO WHICH PURCHASES SHOWN BY THE ASSESSEE UPTO 31.12.98 WAS RS. 23,84,5 24/- WHEREAS THE SALES WERE SHOWN AT RS. 1197980/-. THU S ACCORDING TO AO THERE WAS CLOSING STOCK OF RS. 1186 544/-. AS PER THE LD. AO AFTER REDUCING THE COST OF FURNIT URE AND FIXTURE OF RS. 252240/- AND ESTIMATED CASH IN HAND OF RS. 1 LAKH BALANCE CAPITAL VALUE FOR INVESTMENT IN PURC HASE OF STOCK COMES TO RS. 545648/-. SINCE CLOSING STOCK O F WAS RS. 1186544/-, A SUM OF RS. 640986/- REMAIN UNEXPLAINED AS PER THE WORKING OF THE LD. AO. IT WAS FURTHER SUBMITTED BEFORE THE LD. CIT(A) THA T AO HAS NOT SUPPLIED THE ASSESSEE INFORMATION AND MATERIAL COLL ECTED FROM SALES I.T. (SS) A. NO. 67/DEL/ 2009 5 TAX DEPARTMENT WHICH WAS REQUESTED TO HIM. IT WAS SUBMITTED THAT AO HAS WRONGLY PRESUMED THAT ENTIRE PURCHASES OF RS . 2384524/- IS PAID STOCK. THAT CASH AND BANK BALANCE HAS BEEN ES TIMATED WITHOUT ANY BASIS TO RS. 1 LAKH. IT WAS FURTHER SUBMITTED THAT AS PER THE AO THE FURNITURE WAS OF RS. 2,52,240/- WHEREAS AS PER BALANCE SHEET AS ON 8.8.98 IT WAS OF RS. 25240/-. CONSIDERING THE A BOVE, LD. CIT(A) HELD THAT THE ENTIRE EXERCISE OF THE AO IN CONCLUDI NG THE INVESTMENT IN EXCESS STOCK WAS BASED ON SURMISES AND CONJECTUR ES AND WAS NOT SUPPORTED BY THE EVIDENCE OR MATERIAL ON RECORD. LD. CIT(A) CONCLUDED AS UNDER:- THE PURCHASE OF THE ASSESSEE UPTO 31.12.98 TAKEN AT RS. 23,84,524/- BY THE AO IS NOT BACKED UP BY ANY EVIDENCE. SO MUCH SO THAT DESPITE REPEATED REQUESTS BY THE ASSESSEE, AS PER PARA 3 OF ITS LETT ER DATED 14.3.2001, THE COPY OF THE DOCUMENT FURNISHED TO THE SALES TAX DEPARTMENT SHOWING THESE PURCHASES, WAS NEVER FURNISHED TO THE ASSESSEE. THEN AGAIN, NO BASIS HAS BEEN FORWARDED BY THE AO FOR ESTIMATING CASH IN HAND AT RS. 1 LAC. THE AO HAS ALSO NOT GIVEN CREDENCE TO TH E FACT THAT CERTAIN PURCHASE MAY HAVE BEEN MADE ON CREDIT ALSO WHICH IS QUITE NORMAL IN THIS TRADE. FURTHER, THE INVESTMENT IN FURNITURE AND FIXTURE H AS BEEN WRONGLY TAKEN BY THE AO AT RS. 2,52,240/- WHILE THE SAME ACTUALLY WAS AS PER THE BALANCE SHEET SUBMITTED AT RS. 25,240/- AS EVIDENT FROM TH E SAID BALANCE SHEET AS ON 8.8.1998. THE TOTAL SALES OF THE ASSESSEE THUS WORK OUT TO R S. 35,79,069/- AS PER CALCULATION BELOW:- I.T. (SS) A. NO. 67/DEL/ 2009 6 SALES AS PER REGULAR SALES BOOK RS. 13,22,044/- SALES AS PER DOCUMENT NO. A-7 RS. 7,37,675/- SALES AS PER PAD NO. 8 RS. 15,19,350/- RS. 35,79,069/- THE SALE/RECEIPTS BEING LESS THAN 40 LACS, THE PROVISIONS OF SECTION 44AF GET ATTRACTED AND PROFIT S, ESTIMATED AS PER THIS SECTION AT THE RATE OF 5% (WHICH IS THE MAXIMUM PRESCRIBED RATE UNDER THAT SECTION), COME TO RS. 1,78,953/-, WHICH ARE DIRECTE D TO BE TREATED AS THE PROFITS OF THE ASSESSEE FROM BUSINESS AS AGAINST RS. 10,07,169/- ESTIMATED BY THE AO. THEREFORE, THE ADDITION OF RS. 6,40,896/- O N ACCOUNT OF UNEXPLAINED INVESTMENT IN STOCK IS DELETED. III. III.III. III. DELETION OF ADDITION OF RS. 8,28,216/ DELETION OF ADDITION OF RS. 8,28,216/ DELETION OF ADDITION OF RS. 8,28,216/ DELETION OF ADDITION OF RS. 8,28,216/- -- - MADE BY THE AO ON MADE BY THE AO ON MADE BY THE AO ON MADE BY THE AO ON ACCOUNT OF UNDISCLOSED SALES. ACCOUNT OF UNDISCLOSED SALES. ACCOUNT OF UNDISCLOSED SALES. ACCOUNT OF UNDISCLOSED SALES. 3.3 ON THIS ISSUE OF UNDISCLOSED SALES, THE AO ESTI MATED THE SALE OF THE ASSESSEE AS UNDER:- 1. SALES AS PER REGULAR BILL BOOKS 13,22,044/- 2. SALES ESTIMATED ON THE BASIS OF SALES DECLARED PARALLEL / DUPLICATE SALES BOOK (CD NO. A-7), 7,09,225/X4 = FOR 71 DAYS PROPORTIONATE 288 DAYS DURING THE FIRM DID WORK. 28,36,500/- 3. UNRECORDED CASH SALES 28.12.98 TO 12.3.99 AS PER SLIP PAD NO. 8 FOR 74 DAYS IN RESPECT OF WHICH NO BILL REGULAR OR DUPLICATE WAS ISSUED PROPORTIONATE SALES FOR 288 DAYS I.E. 59,13,145/ - CASH 59,13,145/- TOTAL GTO 1,00,71,689/- NET PROFIT IS ESTIMATED AT 10% SINCE I.T. (SS) A. NO. 67/DEL/ 2009 7 THE ASSESSEE MAKING ACCOUNTED / RECORDED SALES SAVING ON OCT. CHARGES CENTRAL SALES TAX AND EARNING OF INTEREST BY SELLING OF HIRE PURCHASE SYSTEM. ACCORDINGLY, BUSINESS INCOME OF RS. 1,00,71,689/- WAS ESTIMATED. 4. LD. CIT(A) IN THIS REGARD CONSIDERED THE ISSUE A ND HELD AS UNDER:- AS REGARDS THE ESTIMATION OF SALES AT RS. 28,36,50 0/- BY THE AO, I HOLD AS FOLLOWS:- AS PER THE ASSESSMENT ORDER, THE SALES AS PER PAR ALLEL SALES BOOKS, DOCUMENT NO. A-7 COME TO RS. 7,37,675 /-. THE ARS CONTENTION THAT DOCUMENT NO. A-7 WAS, IN FACT, THE COPIES OF PERFORMA INVOICES ISSUED BY THE ASSESSEE TO VARI OUS PROSPECTIVE CUSTOMERS DOES NOT HOLD GROUND, SINCE T HERE IS NOTHING ON THE DOCUMENTS T PROVE LIKEWISE. IN FACT , THE WORDS CASH OR BILL IS CLEARLY MENTIONED ON THE DOCUMENT A S ALSO THE ITEM SOLD, THE DATE ON WHICH IT WAS SOLD, AND IN SO ME CASES, THE PERSON ALSO TO WHOM IT WAS SOLD. THE SEIZED DOC UMENT A-7, THEREFORE, IS CLEARLY UNACCOUNTED SALE BILLS OF THE ASSESSEE AND OUGHT TO BE ADDED TO THE TOTAL SALES RETURNED BY TH E ASSESSEE. AS FOR ESTIMATION / EXTRAPOLATION RESORTED TO BY T HE AO, THEREBY CALCULATING THE SALES FOR THE ENTIRE YEAR O N THE BASIS OF DOCUMENTS SEIZED RELATING TO A SMALL PERIOD OF TIME UNDER CONSIDERATION, THE SAME CANNOT BE RESORTED TO BY TH E AO, IN VIEW OF THE FACT THAT FIRSTLY ESTIMATION, THAT TOO WITHOUT ANY BASIS, CANNOT BE RESORTED TO IN THE PROCEEDINGS U/S . 158BC OF THE I.T. ACT, 1961. THE ASSESSMENT U/S. 158BC HAS T O BE I.T. (SS) A. NO. 67/DEL/ 2009 8 FRAMED STRICTLY ON THE BASIS OF MATERIAL FOUND AS A RESULT OF SEARCH. MOREOVER, THE FACT THAT THE ASSESSEE HAD CO MMENCED BUSINESS ONLY ON 20.5.1998, THIS BEING THE FIRST Y EAR OF THE WORKING OF THE FIRM, THE PRESUMPTION THAT THERE OUG HT TO HAVE BEEN UNIFORM SALES DURING THE YEAR IS QUITE UNTENAB LE. THEREFORE, THE ADDITION ON ACCOUNT OF UNDISCLOSED S ALE IS RESTRICTED TO RS. 7,37,675/- AS AGAINST RS. 28,36,5 00/- ESTIMATED BY THE AO. AS REGARDS SALES AS PER PAD NO. 8, I HOLD THAT I H AVE GONE THROUGH THE SEIZED DOCUMENT AND FIND THAT THE ESTIM ATION MADE BY THE AO AT THE TOTAL OF RS. 15,19,350/- IS C ORRECT. THE NARRATION IN THE PAID AND THE FIGURES MENTIONED AGA INST IT LEAD TO BELIEVE THAT ONLY 1/100 TH OF THE ACTUAL SALES WAS MENTIONED IN THE PAD. AS FOR ESTIMATING THE SALES FOR 288 DAY S UNIFORMLY ON THE BASIS OF SEIZED DATA FOR 74 DAYS, I HOLD TH E SAME AS UNCALLED FOR ON THE BASIS OF MY DISCUSSION IN THE P ROCEEDING PARAGRAPHS. THEREFORE, THE AMOUNT OF SALES OF RS. 15,19,350/- IS SUSTAINED AS AGAINST THE AMOUNT OF RS. 59,13,145 /- ESTIMATED / HELD BY THE AO. LD. CIT(A) WORKED OUT THE TOTAL SALES OF THE ASSES SEE AS UNDER:- SALES AS PER REGULAR SALES BOOK RS. 13,22,044/- SALES AS PER DOCUMENT NO. A-7 RS. 7,37,675/- SALES AS PER PAD NO. 8 RS. 15,19,350/- RS. 35,79,069/- 4.1 LD. CIT(A) FURTHER HELD THAT THE SALES/ RECEIPT S IS LESS THAN RS. 40 LACS, THE PROVISIONS OF SECTION 44AF GET ATTRACT ED AND PROFITS, ESTIMATED AS PER THIS SECTION AT THE RATE OF 5% COM ES TO RS. 1,78,953/-. ACCORDINGLY, LD. CIT(A) DIRECTED THAT T HIS SUM BE TREATED AS PROFIT OF THE ASSESSEE FROM THE BUSINESS AS AGAI NST RS. 10,07,169/- ESTIMATED BY THE AO. I.T. (SS) A. NO. 67/DEL/ 2009 9 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. 6.1 AT THE OUTSET, LD. DR SUBMITTED THAT ASSESSEE H AS NOT FILED THE STATEMENT OF FACTS BEFORE THE LD. CIT(A). HE OBSERV ED THAT THIS MAKES THE ASSESSEES APPEAL BEFORE THE LD. CIT(A) INVALID. UPON CAREFUL CONSIDERATION, WE FIND THAT LD. CIT(A) IN H IS APPELLATE ORDER HAS NOT TAKEN ANY SUCH GROUND THAT ASSESSEES APPEA L WAS NOT MAINTAINABLE ON THE GROUND THAT THE STATEMENT OF FA CTS WAS NOT THERE. WE FIND THAT BEFORE US NO SUCH GROUND HAS A LSO BEEN RAISED BY THE REVENUE THAT ASSESSEES APPEAL BEFORE THE CIT(A) WAS NOT MAINTAINABLE. IN THESE CIRCUMSTANCES, WE ARE OF TH E CONSIDERED OPINION THAT THE OBJECTIONS RAISED BY THE LD. DR IS DEVOID OF COGENCY. HENCE, THE SAME IS DISMISSED AS SUCH. 7. AS REGARDS ISSUE OF DELETION OF ADDITION OF RS. 8,56,931/-. WE AGREE WITH THE LD. CIT(A) THAT THERE IS NO BASI S FOR THE AO TO TREAT THE AMOUNT CREDITED IN THE BANK ACCOUNT OF SH. ASHOK KUMAR AS THE BENAMI TRANSACTION. AO IN HIS ORDE R HAS MENTIONED THAT AS PER THE SEIZED DOCUMENTS IT IS CLEARLY ESTA BLISHED THAT THE SAID SUM CREDITED IN THE BANK ACCOUNT OF SH. ASHOK KUMAR PERTAINS TO ASSESSEES FIRM, BUT THE AO HAS NOT AT ALL DEAL WITH THE NATURE OF THE SEIZED MATERIAL AND WHAT WAS THE CONTENT THEREO F. LD. CIT(A) HAS GIVEN A FINDING THAT, HOW SH. ASHOK KUMAR HAS BEEN TREATED AS THE BENAMI OF THE ASSESSEE IS NEITHER COMING OUT FROM T HE IMPUGNED ORDER OF THE AO NOR FROM THE ASSESSMENT RECORDS EXA MINED BY LD. CIT(A). UNDER THE CIRCUMSTANCES, WE ARE OF THE CO NSIDERED OPINION, THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN THIS REGARD. LD. DRS CONTENTION THAT SINCE IN THE ORDER UNDER S ECTION 263, LD. CIT HAS REFERRED TO THIS ADDITION AND THE AO WAS BOUND TO MAKE THE ADDITION CANNOT BE SAID TO BE A GROUND FOR SUSTAINI NG THE ORDER OF I.T. (SS) A. NO. 67/DEL/ 2009 10 THE AO. ANOTHER PLEA OF THE LD. DR IS THAT LD. CIT SHOULD HAVE REFRAINED FROM REVERSING THE ORDER OF THE AO IN THI S RESPECT AS IN THE ORDER UNDER SECTION 263, THE LD. CIT WHO IS AN OFFI CER OF THE EQUIVALENT RANK HAS GIVEN A FINDING THAT THE SAID S UM WAS BENAMI TRANSACTION OF THE ASSESSEE. WE FIND THAT THESE S UBMISSIONS DO NOT SERVE ANY PURPOSE AS NEITHER IN THE ORDER OF THE L D. CIT U/S. 263 NOR IN THE ASSESSMENT ORDER ANY MATERIAL IS THERE TO S HOW THAT THE IMPUGNED SUM CREDITED IN THE BANK ACCOUNT OF SH. AS HOK KUMAR WAS THE BENAMI TRANSACTION OF THE ASSESSEE FIRM. LD. C IT(A) HAS EVERY RIGHT TO ADJUDICATE UPON THE ORDER OF THE AO APPEA LED BEFORE HIM JUDICIOUSLY. IN THESE CIRCUMSTANCES, WE DO NOT FI ND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY, WE AFFIR M THE SAME. 8. AS REGARDS THE SECOND ISSUE REGARDING DELETION O F ADDITION OF RS. 6,40,896/-. IN THIS REGARD, WE NOTE THAT AO HAS MADE THE ADDIT ION CLAIMING THAT THE SAME WAS WORKED OUT ON THE BASIS OF FIGURE S OF PURCHASE AND SALE RETURNED BY THE ASSESSEE AND THE COST OF F URNITURE AND FIXTURES AND CASH IN HAND OF THE ASSESSEE. HOWEVER , LD. CIT(A) HAS GIVEN A FINDING THAT THE ABOVE ADDITION WAS BASED O N SURMISES AND CONJECTURES AND WAS NOT AT ALL SUPPORTED BY THE EVI DENCES OR THE MATERIAL ON RECORD. WE AGREE WITH THIS FINDING OF THE LD. CIT(A); AOS ORDER DOES NOT COGENTLY PROVE THAT ADDITION OF RS. 6,40,896/- IS WARRANTED FOR AMOUNT OF ALLEGED UNEXPLAINED STOCK. IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A), ACCORDINGLY, WE UPHOLD THE SAME. 9. AS REGARDS THE LAST ISSUE REGARDING DELETION OF ADDITION OF RS. 8,28,216/-. WE FIND THAT AO HAS MADE THE ADDITION BY ESTIMATIN G THE NET PROFIT @ 10% ON THE BASIS OF FIGURES OF SALES CULLE D OUT BY HIM AT RS. I.T. (SS) A. NO. 67/DEL/ 2009 11 1,00,71,689/-. LD. CIT(A) HAS EXAMINED THE ADDITIO N AND ESTIMATION OF SALES BY THE AO AFTER DULY ELABORATING UPON THE ISSUES. LD. CIT(A) HAS GIVEN A FINDING THAT THE ESTIMATE OF SALES AS C OMPUTED BY THE AO IS NOT SUPPORTED BY COGENT BASIS. LD. CIT(A) H AS FINALLY COMPUTED THE TOTAL SALES FIGURES OF THE ASSESSEE AT THE FIGURES OF RS. 35,79,069/-. THEREAFTER, LD. CIT(A) HAS APPLIED 5% RATE OF PROFIT. IN OUR CONSIDERED OPINION, THE ORDER OF THE LD. CIT(A) IS A COGENT ORDER AND THE SAME DOES NOT NEED ANY INTERFERENCE ON OUR PART. ACCORDINGLY, WE UPHOLD THE SAME. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/3/2014. SD/- SD/- [ [[ [A.D. JAIN A.D. JAIN A.D. JAIN A.D. JAIN] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 14/3/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES I.T. (SS) A. NO. 67/DEL/ 2009 12