Sh. Rajinder Singh, New Delhi V. ACIT, New Delhi

MA 24/DEL/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8754 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 25-01-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Assessment record; Condonation of delay
• Section: 143(3); 142(1); 133(6); 254(2); 43; 13

Judgement Text

` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 1 OF 20 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBE R AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER M.A. NO.- 24/DEL/2021 ARISING OUT OF ITA NO:- 2293/DEL/2017 ( ASSESSMENT YEAR: 2013-14) SHRI RAJINDER SINGH, NEW DELHI. VS. ACIT, NEW DELHI. PAN NO: AWWPS0999N APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. RAKHI VIMAL, SR. DR M.A. NO.- 550/DEL/2017 ARISING OUT OF ITA NO:- 4159/DEL/2011 ( ASSESSMENT YEAR: 2007-08) M/S RITA PLASTICS PVT. LTD., NEW DELHI. VS. ITO, WARD 15(4), NEW DELHI. PAN NO: AABCR3215J APPELLANT RESPONDENT ASSESSEE BY : SHRI SATISH AGARWAL, CA REVENUE BY : MS. RAKHI VIMAL, SR. DR ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 2 OF 20 ORDER PER ANADEE NATH MISSHRA, AM (A) FOR THE SAKE OF CONVENIENCE THESE TWO MISCELLANEOU S APPLICATIONS (M.A., FOR SHORT), BOTH HEARD ON 19.03.2021 ARE DISPOSED OFF T HROUGH THIS CONSOLIDATED ORDER. IN THE CASE OF SHRI RAJINDER SINGH VS. ASSISTANT COMMI SSIONER OF INCOME TAX VIDE M.A. NO. 24/DEL/2021; THE ASSESSEE HAD FILED APPEAL VIDE ITA NO. 2293/DEL/2017 FOR ASSESSMENT YEAR 2013-14 AGAINST IMPUGNED APPELLATE ORDER DATED 31.01.2017 PASSED BY LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-20, [LD. CIT( A), FOR SHORT] NEW DELHI, RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. DISALLOWANCE ON ACCOUNT OF PURCHASE OF MATERIAL:- {1.1} CONTENTION OF THE ASSESSING OFFICER:- ON PERUSAL OF PROFIT & LOSS ACCOUNT, IT IS OBSERVED THAT THE ASSESSEE HAS DEBITED A SUM OF RS. 1,04,40,429/- ON ACCOUNT OF PURCHASE O F MATERIAL. THE ASSESSEE WAS ASKED TO FURNISH THE DETAIL TOW WH OM THE SAME PAID. FOR THE VERIFICATION OF CLAIM OF ASSESSEE NOTICES U/S 133(6 ) WERE SENT. FROM THE FOLLOWING PARTIES NOTICE WERE RETURNED BAC K/ NO REPLY RECEIVED S.NO . NAME OF THE PARTY AMOUNT REMARKS 1 M/S BALAJI MARBLE & GRANITE, PLOT NO. E - 410, PARYAVARAN ROAD, INDL. AREA, MADANGANJ- KISHANGARH (AJMER) RAJ ASTHAN - 305801 255000 RETURNED M/S VANDANA TIMBERS, 5 - A, RAJDHANI PARK, MAIN ROHTAK ROAD, NAGLOI, NEW DELHI 916998 RETURNED 3 M/S PAL ENTERPRISES, SAVITRI NAGAR, MALVIYA NAGAR, NEW DELHI-110017 2400000 RETURNED BACK 4 M/S R.K. ELECTRONICS, E - 2/9, MALVIYA NAGAR, DELHI - 110017 403000 NO REPLY RECEIVED ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 3 OF 20 7 M/S GARG TIMBER TRADERS, 550, CHIRAG DELHI, NEW DEL HI - 110017 210250 NO REPLY RECEIVED M/S GURU NANAK BUILDING MATERIAL STORE, 33, CORNER MARKET MALVIYA NAGAR, NEW DELHI-110017 911811 NO REPLY RECEIVED TOTAL 50,97,059 FOR 133(6) RETURNED BACK/NO REPLY RECEIVED, THE AR OF THE ASSESSEE WAS ASKED TO GIVE THE JUSTIFICATION THAT WHY IT SHOULD NOT BE AD DED TO THE INCOME OF THE ASSESSEE. THE AR OF THE ASSESSEE REPLIED VIDE NOTE SHEET ENTRY DATED 10.02.2016 STATING THAT THE ADDRESSES ARE CORRECT. THIS REPLY HAS BEEN CONSIDERED BUT NOT TENABLE AS N O REPLY/CONFIRMATION HAS BEEN RECEIVED FROM CONCERNED PARTIES. THE ABOVE 133(6) I SSUED WERE RETURNED BACK OR NO REPLY RECEIVED. HENCE, THE SAID PARTIES, PAYMENT OF RS.50,97,059/- IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF B OGUS PURCHASES. THE AR SUBMITTED INVOICES. AS EVIDENT FROM THIS INVOICE, THERE IS NOT TIN / PA N WHICH ALSO RAISES DOUBTS ABOUT ITS AUTHENTICITY. FURTHER, THERE IS NO NAME MENTIO NED. (REFER PAGE-9 PARA NO 5& 5.1 OF THE APPELLATE ORDER ) {1.2} A P P E L L A N T S S U B M I S S I O N : - T H E ASSESSEE WENT OUT OF THE WAY TO ATTAIN AND FILE DETAILED CONFIRMATION, WITH NARRATED BANK STATEMENT, ACKNOWLEDGEMENT OF RETURN OF INCOME, AND PAN OF THE CREDITORS, ON THEIR BEHALF RESPECTIVELY, WHICH ARE FILED VIDEPAGE NO. 90 TO 95 OF THE PAPER BOOK FOR YOUR REFERENCE. 6. THAT DETAILED LEDGER ACCOUNT ALONG WITH ALL COP IES OF BILLS/ INVOICE OF PURCHASE OF BUILDING MATERIAL DURING THE YEAR UNDER CONSIDER ATION, ARE ENCLOSED AGAIN (VIDE PAGE NO.35 TO 88) OF THE PAPER BOOK, YOUR READY PERUSAL. 7. THAT THE AO IN HIS ORDER(PAGE 13 OF THE PAPER B OOK) HAS STATED THAT THERE IS NO TIN/PAN ON THE INVOICE OF M/S PAL ENTERPRISES. THE AO NEITHER DIRECTED THE ASSESSEE TO SUBMIT THE SAME NOR NOTED ON THE ORDER SHEET TO MAK E SUBMISSIONS. THE AO HAS NOT GIVEN ANY OPPORTUNITY TO THE ASSESSEE TO EXPLAIN TH E ABOVE. ALSO THERE ARE 13. INVOICES RAISED BY M/S PAL ENTERPRISES DURING THE YEAR, AGAI NST THE ASSESSEE'S NAME. THE AO HAS ONLY POINTED OUT THE BILL, WHICH DID NOT HAVE PURCH ASING DEALER'S NAME [ASSESSEE] ON IT. ALL THE BILLS, WITH THE CREDITOR'S ADDRESSES AND PA N ARE ENCLOSED VIDE PAGE NO. 35 TO 41 OF THE PAPER BOOK. ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 4 OF 20 8. THAT 'MERELY BECAUSE THE NOTICES U/S 133(6) COUL D NOT BE SERVED UPON/ RETURNED BACK/ OR NO REPLY RECEIVED FROM/ TO THE CREDITORS, DOES NOT MEAN THE TRANSACTION WERE BOGUS'. ALL THE TRANSACTIONS WITH CREDITORS WERE MA DE THROUGH BANKING CHANNELS (BANK STATEMENT DULY NARRATED IS ANNEXED VIDE PAGE NO. 33 TO 34 OF THE PAPER BOOK) AND ALL DOCUMENTARY EVIDENCES PROVE THAT THE ASSESSEE HAS T RANSACTED WITH THE PURCHASING DEALERS GENUINELY. 9. THAT THE AO ISSUED NOTICE U/S 133(6) TO THE BUSI NESS CREDITORS ON 20/01/2016 ONLY AND NEVER AGAIN. MEANING THEREBY, THAT THE AO DID NOT INTEND TO GIVE ANOTHER OPPORTUNITY TO THE SAID CREDITORS. AS EXPLAINED EAR LIER, ALL DETAIL VIDE LETTER MENTIONED ABOVE WERE FILED AND PLACED ON RECORD. THUS, THE O NUS TO PROVE THE TRANSACTION AND ITS GENUINENESS NO MORE LIE UPON THE ASSESSEE. 10. THE AO IN HIS ORDER SAID THAT 'THE COUNSEL STA TED THAT THE ADDRESSES ARE CORRECT . IT IS VEHEMENTLY DENIED. NEITHER THE ASSESSEE NOR T HE COUNSEL ISSUED ANY SUCH STATEMENT IN REGARD TO THE ADDRESSES OF THE CREDITORS. THE LD.AO HAS MADE FALSE ALLEGATION IN HIS ORDER VIDE PAGE NO. 35 TO 43 OF T HE PAPER BOOK. 11. THAT THE REMARKS IN THE ORDER THAT, THE ASSESSE E HAS FURNISHED INACCURATE PARTICULARS AND CONCEALED THE INCOME, BECAUSE THERE IS NO TIN/PN ON ONE CREDITOR'S INVOICE, IS BASELESS. AS SAID IN PARA 7, ALL THE TR ANSACTIONS ARE THROUGH BANKING CHANNELS AND ARE GENUINE. ALSO ALL THE BILLS HAVE THE TIN AN D PAN INCORPORATED AND ENCLOSED VIDE PAGE 35-43 OF THE PAPER BOOK. ADDITION OF RS. 50,97 ,059/- MAY VERY KINDLY BE DELETED. (REFER PAGE-10 PARA-5.2 OF THE APPELLATE ORDER) {1.3} D E C I S I O N O F T H E L D . C I T ( A ) - X X : - THE AO HAS MADE AN ADDITION OF RS.50,97,059/- ON AC COUNT OF PURCHASE OF MATERIAL ON THE GROUND THAT NOTICE UNDER SECTION 133(6) CAME BA CK UN SERVED/NO REPLY RECEIVED AND THE INVOICES WERE NOT HAVING TIN/PAN. THE ASSESSING OFFICER HAS MADE THIS ADDITION BY SIMPLY WRITING THAT THE AR OF THE APPELLANT WAS ASK ED TO JUSTIFY THIS AND HE STATED THAT ADDRESSES ARE CORRECT. DURING THE COURSE OF APPELLA TE PROCEEDINGS, THE APPELLANT HAS FILED PAPER BOOK ALONG WITH THE DOCUMENTS, WHICH WE RE FILED BEFORE THE ASSESSING OFFICER AND CLAIMED THAT CONFIRMATION OF THE PURCHA SERS, BANK STATEMENT, THE COPY OF RETURN OF INCOME, PAN ETC. WERE FILED BEFORE THE AS SESSING OFFICER VIDE LETTER DATED 21.10.2015,09.02.2016 AND 17.02.16 WHICH WERE IGNOR ED BY THE ASSESSING OFFICER. THE APPELLANT HAS ALSO CLAIMED THAT ALL THESE PURCHASES ARE MADE THROUGH CHEQUES. THAT TO VERIFY THE CLAIM OF THE APPELLANT, THE ASSESSMENT R ECORD WAS CALLED FROM THE ASSESSING OFFICER & VERIFIED AND IT IS GATHERED THAT DURING T HE ASSESSMENT PROCEEDINGS, THE APPELLANT FILED THE CONFIRMATION OF THE PURCHASERS, LEDGER ACCOUNT, BANK STATEMENT SHOWING CHEQUE PAYMENT TO THESE PARTIES, COPIES OF BILL HAVING TIN /PIN BUT THE ASSESSING OFFICER HAS NOT DISCUSSED AT ALL ABOUT TH ESE DOCUMENTS. IT APPEARS THAT THE AO WAS ONLY GUIDED BY THE NOTICES ISSUED UNDER SECT ION 133(6) WHICH CAME BACK UNSERVED OR WHERE NO REPLY WAS RECEIVED. FROM THE A SSESSMENT RECORD IT IS ALSO ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 5 OF 20 GATHERED THAT IN THE FOLLOWING CASES NOTICES U/S 13 3(6) CAME BACK UNSERVED WITH THE FOLLOWING REMARKS:- FURTHER, THE FOLLOWING CREDITORS HAVE NOT RESPONDED TO THE NOTICES U/S 133(6) OF THE ASSESSING OFFICER:- M/S R.K. ELECTRONICALS, E - 2/9, MALVIYA NAGAR, DELHI - 110017 M/S GARG TIMBER TRADERS, 550, CHIRAG DELHI, NEW DEL HI-110017 M/S G URU NANAK BUILDING MATERIAL STORE, 33, CORNER MARKE T, MALVIYA NAGAR, NEW DELHI-110017 IN THIS LIGHT, THE CLAIM OF THE APPELLANT HAS BEEN CONSIDERED AND FOUND THAT THE ASSESSING OFFICER VIDE NOTICE U/S 142(1) DATED 29.0 7.2015 HAS ASKED FOR THE NAME AND ADDRESS FOR THE PARTY FROM WHOM PURCHASES WAS M ADE OF MORE THAN RS. 5 LACS. IN COMPLIANCES TO THIS ON 21.10.2015 THE APPELLANT HAS FILED THESE DETAILS WHERE THE NAME AND ADDRESS OF THE APPELLANT HAS FILED THESE D ETAILS WHERE THE NAME AND ADDRESS OF GURUNANAK BUILDING MATERIAL, PAL ENTERPR ISES, NAV DURGA STEEL AND SANITARY, AHLUWALIA MARBLES AND VANDANA TIMBERS WAS GIVEN. IN THESE ACCOUNTS ONLY PAL ENTERPRISES AND VANDANA TIMBERS CREDIT BALANCE OF RS. 19,12,000/- AND RS.7,67,234/- WAS SHOWN RESPECTIVELY. ON 26.10.2015 VIDE ORDER SHEET ENTRY THE ASSESSING OFFICER HAS ASKED THE APPELLANT TO FILE T HE CONFIRMATION TO THE CREDITORS. SR. NO. NAME OF THE PARTY REMARKS 1 . M/S. VANDANA TIMBERS & GRANITE PLOT NO.E- 410, PARYAVARANA ROAD, INDL. AREA MADANGANJ KISHANGRAH(AJMER) RAJASTHAN-305801 UNFOUND 2. M/S. PAL ENTERPRISES, SAVITRI NATAR, MALVIYA NAGAR, NEW DELHI INSUFFICIENT ADDRESS 3. BALAJI MARBLE SIGRANTIE PLOT NO.E- 410, PARYAVARANA ROAD, INDL. AREA MADANGANJ KISHANGRAH (AJMER) RAJASTHAN-305801 NOT KNOWN ADDRESS RETURNED BACK ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 6 OF 20 SUBSEQUENTLY VIDE LETTER DATED 07.12.2015 THE APPEL LANT HAS FILED THE CONFIRMED COPY OF PAL ENTERPRISES AND VANDANA TIMBERS. ON 20.01.20 16 THE ASSESSING OFFICER VIDE ORDER SHEET ENTRY HAS ASKED FOR PURCHASE VOUCHER & BILLS AND CREDITORS ADDRESS AND CONFIRMATION. VIDE LETTER DATED 28.01.2016 AGAIN CO NFIRMED COPIES OF VANDANA TIMBERS, PAL ENTERPRISES, GURUNANAK BUILDING MATERI AL STORE, BILLS & VOUCHERS OF PAL ENTERPRISES, VANDANA TIMBERS, GURUNANAK BUILIDING M ATERIAL, AHLUWALIA MARBELS, R.K. ELECTRICALS AND GARG TIMBER TRADERS AS WELL AS LEDG ER COPIES OF THESE PARTIES IN THE BOOKS OF THE APPELLANT WAS PRODUCED. AGAIN THE APPE LLANT VIDE LETTER DATED 10.02.2016 HAS MENTIONED THE FOLLOWING:- 'THAT CONFIRMATIONS FROM SUNDRY CREDITORS NAMELY M/ S BALAJI MARBLES, M/S VANDANA TIMBER (PAN- AAEFV9228P)-, M/S R.K. ELECTRICALS (PA N- AAFFR8583G), M/S NAV DURGA STEEL, M/S GARG TIMBER, M/S GURUNANAK BUILDING MATE RIAL (PAN- AAKPM9550H)-, M/S PAL ENTERPRISES (AKHPB4641B)-. ALL THE ABOVE CONFIRMATI ON ARE FILED BY THE ASSESSEE VIDE LETTER DATED 18-11-2015 PARA 5.' ON 10.02.2016 VIDE ORDER SHEET ENTRY THE ASSESSING OFFICER HAS MADE THE FOLLOWING ENTRY IN RELATION TO THE NOTICES WHICH CAME BACK UN SERVED:- 'HE WAS INFORMED RETURNED 133(6) FROM VENDORS. AR S TATED THAT ADDRESS ARE CORRECT. ON AR REQUEST, FINAL DATE 17 FEB 2016' ON 17 FEB THE APPELLANT HAS FILED LETTER ALONG WITH DOCUMENTS. THE RELEVANT PORTION OF THE LETTER DATED 17.02.2016 OF THE APPELLANT IS REP RODUCED AS UNDER:- 'THAT CONFIRMATIONS FROM SUNDRY CREDITORS, WITH THE IR ACKNOWLEDGEMENT OF RETURN OF INCOME & PAN, NAMELY: M/S. GURNANAK BUILDING MATERI AL (PAN AAKPM9550H), M/S. PAL ENTERPRISES (AKHPB4641B)- ARE ENCLOSED FOR YOUR REA DY REFERENCE.' ON 17 TH FEB THE FOLLOWING ORDER SHEET ENTRY HAS BEEN MADE: - SHRI SAMEER MALHOTRA AR ATTENDED AND FILED FINAL R ESPONSE FROM SIDE OF ASSESSEE. CASE WAS DISCUSSED. ON THIS DATE NO ADVERSE OBSERVATION WAS MADE IN THE ORDER SHEET NOR ANY FURTHER QUERY WAS MADE BY THE ASSESSING OFFICER IN THE ORDER SHEET. ALL THE CONFIRMATIONS OF THE ABOVE MENTIONED SIX PA RTIES ARE ALSO PRODUCED BEFORE ME DURING THE COURSE OF APPELLATE PROCEEDINGS. BESIDES THIS, THE COPY OF LEDGER ACCOUNT, BANK STATEMENT SHOWING CHEQUE PAYMENT TO THESE PART IES, PAN ETC. ARE ALSO FILED BEFORE ME WHICH WERE ALREADY FILED BEFORE ASSESSING OFFICE R. IN THIS LIGHT, THE APPELLANT WAS ASKED TO SUBMIT TH E DETAIL OF THE GROSS PROFIT AND NET PROFIT OF THE LAST 3 YEARS WHICH IS SUBMITTED BY THE APPELLANT AND REPRODUCED AS UNDER:- ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 7 OF 20 FROM THIS IT IS APPARENT THAT THE GROSS PROFIT HAS INCREASED FROM 13.60 TO 18.79 AND NET PROFIT HAS INCREASED FROM 5.92% TO 15.33% FROM THE ASSESSMENT YEAR 2013-14 WHICH IS QUITE REASONABLE IN THIS LINE OF BUSINESS. THE AO H AS NOT MADE ANY EFFORT TO MAKE ENQUIRIES FROM BANK WHEN THE PAYMENTS WERE MADE THR OUGH CHEQUES AND IGNORED THE RELEVANT DETAILS AND DOCUMENTS FILED BY THE APPELLA NT DURING THE COURSE OF THE ASSESSMENT PROCEEDING IN THE FORM OF CONFIRMATIONS, RETURN OF INCOME, PAN, BILLS AND CHEQUE PAYMENT THROUGH BANK STATEMENTS. IN THE LIGH T OF THESE EVIDENCES PRODUCED BY THE APPELLANT AND THE INCREASED NET PROFIT SHOWN BY THE APPELLANT, I DO NOT FIND ANY JUSTIFICATION OF THE ADDITION MADE BY THE ASSESSING OFFICER REGARDING PURCHASE. EVEN WHEN THE APPELLANT HAS FILED CONFIRMATIONS OF THESE PARTIES, THE AO HAS NOT MADE ANY ADVERSE OBSERVATION IN THE ORDER SHEET OR ANY QUERY TO THE APPELLANT. FROM THE ASSESSMENT RECORD AND ORDER SHEET ENTRIES, IT IS AL SO APPARENT THAT ASSESSING OFFICER HAS MADE ANY QUERY TO THE APPELLANT REGARDING THE NON C OMPLIANCE BY THE THREE PARTIES I.E. GURUNANAK BUILDING MATERIAL, R.K. ELECTRICALS AND G ARG TIMBER TRADERS AND ONLY ASKED ABOUT THE RETURN OF NOTICES IN THE CASE OF ANOTHER THREE PARTIES I.E. PAL ENTERPRISES, VANDANA TIMBERS AND BALAJI MARBLE & GRANITE. FINALLY, THE ORDER U/S 143(3) HAS BEEN PASSED ON 07 .03.2016 BY THE ASSESSING OFFICER WITHOUT GIVING ANY SHOW CAUSE LETTER OR OPPORTUNITY TO THE APPELLANT AND ADDITION OF RS.50,97,059/- IN RESPECT OF THE PURCHASE MADE FROM ABOVE SIX PARTIES WAS MADE BY THE ASSESSING OFFICER. BUT THE OBSERV DATE BILL NO. AMOUNT 1 . 02/11/2012 604 187000.00 2. 09/11/2012 610 236000.00 3. 16/11/2012 618 114400.00 4. 19/11/2013 621 84300.00 5. 23/11/2012 626 99200.00 6. 30/11/2012 630 117400.00 ASSESSMENT YEAR 2011-12 2012-13 2013-14 GROSS PROFIT 13.60 14.36 18.79 NET PROFIT 5.92 7.32 15.33 ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 8 OF 20 7. 05/12/2012 633 184000.00 8. 17/12/2012 642 96000.00 9. 28/12/2012 648 56000.00 10. 04/01/2013 653 14300.00 11. 14/01/2013 661 98000.00 12. 06/02/2013 672 88400.00 13. 26/02/2013 685 73500.00 14. 01/03/2013 689 23900.00 15. 17/03/2013 693 87000.00 16. 29/03/2013 699 55900.00 1615300.00 IT IS ALSO STRANGE THAT THE APPELLANT IS MARKING CH EQUE PAYMENTS ON REGULAR BASIS TO ALL THE PARTIES INCLUDING PAL ENTERPRISES, BUT NO PAYME NTS HAS BEEN MADE AFTER 22.10.2012RELATING TO THESE BILLS WHICH ARE OUTSTAN DING EVEN ON 31.03.2013. THE FREQUENCY OF TRANSACTION AND SERIES NO.OF BILLS STA RING FROM 604 TO 699 IS ALSO DOUBTFUL AS BEFORE THIS THE TRANSACTION FROM PAL ENTERPRISES WAS MADE THROUGH BILL NO.2188, 2254, 2316 AND 2361 FROM 20.06.2012 TO 20.102012. A S NO INDEPENDENT CONFIRMATION WAS RECEIVED FROM PAL ENTERPRISES, THE TRANSACTION OF ABOVE-MENTIONED BILLS WHERE THE NAME OF THE APPELLANT IS MISSING COULD NOT BE SUBST ANTIATED. FURTHER, DURING THE COURSE OF APPELLATE PROCEEDINGS THE APPELLANT COULD NOT PR ODUCE ANY EVIDENCE OF SUBSEQUENT PAYMENTS MADE RELATING TO THESE BILLS. HENCE, THE A DDITION OF THE AMOUNT OF RS.16,15,300/- RELATING TO THESE BILLS OF PAL ENTER PRISES MADE BY THE ASSESSING OFFICER IS CONFIRMED AND THE ADDITION OF AMOUNT OF RS.34,81,75 9/- (5097059 -1615300) MADE BY THE ASSESSING OFFICER IS DELETED. THE APPELLANT WIL L GET RELIEF ACCORDINGLY. ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 9 OF 20 (REFER PAGE -11 TO 14 PARA- 5.3 OF THE APPELLATE OR DER {1.4} CONTENTION OF THE ASSESSEE TO THE HON'BLE BEN CH: - A. THAT THE LD. CIT(A)- 20 HAS ERRED IN PASSING THE 'APPELLATE ORDER', WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. B. THAT IT IS BROUGHT TO YOUR HONOR'S KIND NOTICE THAT NEITHER AT THE TIME OF ASSESSMENT, NOR AT THE TIME OF HEARING OF APPEAL, T HE ASSESSEE WAS DIRECTED TO PRODUCE EVIDENCE OF PAYMENTS MADE TO M/S PAL ENTERP RISES, POST 31/03/2014. C. THAT M/S PAL ENTERPRISES IS ONE OF THE BUSINESS CREDITORS OF THE ASSESSEE AND HAS AN AMOUNT RECEIVABLE TO THE TUNE OF RS, 19,20,0 00/- FROM THE ASSESSEE CONCERN, AS ON 31/03/2014 (COPY OF LEDGER ENCLOSED) . THE CIT(A)- 20 HAS ONLY CONFIRMED THE ADDITION OF THE LD. AO AN AMOUNT TO T HE TUNE OF RS. 16,15,300/- BECAUSE THE BILLS/ INVOICES (16 NOS.) DID NOT HAVE NAME OF THE ASSESSEE ON THE SAME. D. ALTHOUGH, THE EVIDENCE OF PAYMENTS MADE TO M/S P AL ENTERPRISES POST 31/03/2014 ARE MADE AVAILABLE TO THE HONBLE BENCH, ALONG POST 31/03/2014 ARE MADE AVAILABLE TO THE HON'BLE BENCH, ALONG WITH COP IES OF ALL THE BILLS/ INVOICES, LEDGER ACCOUNT & CONFIRMATION ISSUED BY M/S PAL ENT ERPRISE, TO THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION AND IN THE SUBS EQUENT YEARS. E. THAT COPY OF LEDGER ACCOUNTS, CONFIRMATIONS, PAN , DULY NARRATED BANK STATEMENT IN REGARD TO THE TRANSACTIONS BETWEEN THE ASSESSEE AND THE SELLER/ SUNDRY CREDITOR, WHO SOLD BUILDING MATERIAL TO THE ASSESSEE DURING THE YEAR, NAMELY, M/S PAL ENTERPRISES (AKHPB4641B) ARE ENCLOS ED FOR YOUR HONOR'S READY PERUSAL. THE SAME WERE FILED DURING ASSESSMENT AND APPELLATE PROCEEDINGS VIDE LETTER DATED 17/02/2016, 18/11/2015 AND 21/10/2015. COPIES OF LETTERS ARE ALSO ENCLOSED FOR YOUR REFERENCE. F. THAT NO OPPORTUNITY WAS AFFORDED TO THE ASSESSE E TO ESTABLISH IF THE PAYMENTS WERE MADE TO M/S PAL ENTERPRISES IN THE SUBSEQUENT YEARS. G. THAT KEEPING THE FACTS AND CIRCUMSTANCES IN VIEW , THE ADDITION OF RS. 16,15,300/- ON THE ABOVE ACCOUNT MAY VERY KINDLY BE DELETED. (2 } D I S A L L O W A N C E O N A C C O U N T O F P E R S O N A L E X P E N S E S : - {2.1) C O N T E N T I O N O F T H E A S S E S S I N G O F F I C E R ; - THE ASSESSEE IN HIS BOOKS OF A/C'S CLAIMED THE FOLL OWING EXPENSES WHICH ARE REPRODUCED AS UNDER: ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 10 OF 20 (A) CAR INSURANCE (B) INTEREST ON CAR LOAN (C) CAR DEPRECIATION TOTAL AMOUNT AS POSSIBILITY OF THESE EXPENSES FOR NON BUSINESS/P ERSONAL PURPOSE COULD NOT BE RULED OUT, DUE TO THE FACTS THAT NO LOG BOOK IS MAINTAINE D BY THE ASSESSEE NOR IS PRODUCED FROM WHICH IT CAN BE VERIFIED THAT THESE EXPENSES W ERE USED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS USE ONLY. THEREFORE, AN AD-HOC EDITION OF 20% OF THE TOTAL AM OUNT SPENT ON THESE EXPENSES RS. 2,59,800/- I.E. RS. 51,960/- IS MADE AND ADDED BACK TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF PERSONAL USE OF THESE EXPENSES. {2.2} A P P E L L A N T ' S S U B M I S S I O N : - 19. THAT DISALLOWANCE MADE ON FOR. 20% DISALLOWANCE OF RS.22,932/- FROM CARD INSURANCE, RS. 50,361/- AS INTEREST ON CAR LOON HAS ALREADY BEEN MADE BY THE AO IN HIS ORDER VIDE PARA IV (PAGE 12 OF THE PAPER BOOK). MEA NING THEREBY THE AO HAS MADE THE SAME ADDITION TWICE I.E. VIDE PARA IV & V BOTH, IN HIS ORDER (REFER PAGE 12 OF THE PAPER BOOK). COPY OF LEDGER ACCOUNT IS FILED VIDE PAGE NO . 96 TO 99 OF THE PAPER BOOK. IT ALSO SHOWS THE KIND OF INTEREST TAKEN AND THE INTENTION OF THE AO WHILE PASSING THE ORDER. 20. THAT 20% OF RS.1,86,507/- CLAIMED AS CAR DEPRE CIATION IS DISALLOWED. THE DEPRECATION IS CLAIMED AT 15% OF THE TOTAL VALUE, I .E. RS. 1,86,507. THE SAME IS ALLOWABLE UNDER THE PROVISIONS OF THE ACT. IN ADDIT ION TO THIS, THE AO HAS NOT GIVEN ANY REASON BEFORE MAKING THE ADDITION/DISALLOWANCE OF D EPRECIATION CLAIMED. THE ADDITION/ DISALLOWANCE MAY KINDLY BE DELETED. 21. THAT IT MAY ALSO BE CONSIDERED THAT ASSESSEE LI VES CLOSE BY TO HIS OFFICE. HE DOES NOT USE THE VEHICLE FOR HIS PERSONAL USE. HE THE VE HICLE TO VISIT CONSTRUCTION SITES AND MAKES PURCHASE FOR BUILDING MATERIAL WITHIN DELHI/NCR. THE USE OF THE SAID VEHICLE IS COMPLETELY OFFICIAL. ADDITION OF RS. 51,96.0/- IS T OTALLY UNJUSTIFIED. (REFER PAGE-18 & PARA -9.1 OR 9.2 OF THE APPELLATE ORDER) {2.3} D E C I S I O N O F T H E C I T ( A ) - X X : - THE AO HAS MADE ADHOC ADDITION @ 20% OF THE TOTAL A MOUNT SPENT ON ACCOUNT OF CAR INSURANCE OF RS.22,932, INTEREST ON CAR LOAN OF RS. 50,361/- AND CAR DEPRECIATION OF RS.186507/-. THE EXPENDITURE ON CAR INSURANCE AND I NTEREST ON CAR LOAN ARE FIXED EXPENDITURE AND HAS TO BE INCURRED BY THE APPELLANT EVEN IF THERE IS NO PERSONAL ELEMENT ON SUCH EXPENSES. HOWEVER, THE CAR DEPRECI ATION HAS TO BE DISALLOWED U/S 38(2) OF THE ACT ON PERSONA ELEMENT SPECIALLY ON TH E GROUND THAT DURING THE COURSE OF HEARING VIDE ORDER SHEET ENTRY DATED 06.12.2016 THE APPELLANT HAD ACCEPTED THIS FACT THAT THE PROPRIETOR IS HAVING ONLY ONE VEHICLE IN H IS NAME WHICH IS USED IN THE BUSINESS AND THERE IS NO VEHICLE IN THE NAME OF HIS WIFE ALS O FOR PERSONAL USE WHICH WAS CLAIMED EARLIER. IN THIS LIGHT, THE PERSONAL USE OF THE VEH ICLE CANNOT BE RULED OUT. HOWEVER, THE RS.22,932/ - RS.50,361/- RS.1,86,507/- RS.2,59,800/- ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 11 OF 20 DISALLOWANCE @20% MADE BY ASSESSING OFFICER IS EXCE SSIVE AND IT IS REASONABLE TO RESTRICT THE DISALLOWANCE @ 10% WHICH COMES TO RS.1 8, 650/- AND APPELLANT WILL GET RELIEF ACCORDINGLY. (REFER PAGE -19 & PARA -9.3 OF THE APPELLATE ORDER) ( 2 . 4 } C O N T E N T I O N O F T H E A S S E S S E E T O T H E H O N ' B L E B E N C H : A. THAT IT IS APPARENT THAT THE GROSS PROFIT HAS INCRE ASED FROM 13.60 TO 18.79 AND NET PROFIT HAS INCREASED FROM 5.92% TO 15.33% FROM THE ASSESSMENT YEAR 2013-14 WHICH IS QUITE REASONABLE IN THIS LINE OF BUSINESS. CONSIDERING THE FACTS & CIRCUMSTANCES OF THE CASE, AD HOC ADDIT ION @10% MAY VERY KINDLY BE DELETED ON THE ABOVE GROUND. (B) VIDE LETTER DATED 20/06/2018 FILED ON BEHALF OF THE ASSESSEE, REQUEST WAS MADE FOR EARLY HEARING OF THE AFORESAID APPEAL FILED IN INCO ME TAX APPELLATE TRIBUNAL (ITAT, FOR SHORT). HOWEVER, THE REQUEST WAS REJECTED BY CO-OR DINATE BENCH OF ITAT, DELHI, ON 28/07/2018 ON THE GROUND THAT THERE WERE NO ADEQUAT E REASONS FOR EARLY HEARING. VIDE LETTER DATED 30.07.2018, THE ASSESSEE WAS COMMUNICA TED THAT THE ASSESSEES REQUEST FOR EARLY HEARING HAD BEEN REJECTED. THE ASSESSEES AP PEAL WAS FIXED FOR HEARING ON 17/12/2019 FOR WHICH NOTICE OF HEARING DATED 18/10/ 2019 WAS SENT TO THE ASSESSEE. ON THE DATE OF HEARING ON 17/12/2019 NONE APPEARED FOR THE ASSESSEE. THE ASSESSEES APPEAL WAS DISMISSED EX-PARTE (QUA THE APPELLANT) V IDE ORDER DATED 18/12/2019 OF ITAT. HOWEVER, THE ASSESSEE WAS GIVEN LIBERTY TO APPROACH ITAT FOR RESTORATION OF THE APPEAL IN ACCORDANCE WITH PROVISO TO RULE 24 OF INCOME TAX (A PPELLATE TRIBUNAL) RULES, 1963. (B.1) VIDE APPLICATION DATED 21 ST JANUARY, 2021, THE ASSESSEE REQUESTED FOR RESTORAT ION OF AFORESAID APPEAL VIDE ITA NO. 2293/DEL/2017. RE GISTRY OF ITAT HAS REMARKED THAT THE ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 12 OF 20 APPEAL IS TIME-BARRED BY 209 DAYS. THE RELEVANT PO RTION OF THE ASSESSEES AFORESAID APPLICATION DATED 21 ST JANUARY, 2021 IS REPRODUCED AS UNDER: IT IS RESPECTFULLY SUBMITTED AS UNDER: 1. THAT THE APPEAL IN THE ABOVE CASE WAS FILED ON 17.0 4.2017 AND ACKNOWLEDGEMENT- CUM- NOTICE WAS GIVEN ON THE APPEA L PETITION ITSELF (PHOTOCOPY OF ACKNOWLEDGEMENT ENCLOSED @ANNEXURE- A ). 2. THAT MY COUNSEL SH. SAMEER MALHOTRA, ADVOCATE WHO PERSONALLY FILED THE APPEAL WAS INFORMED THAT THE DATE OF HEARING WOULD BE INTIMATED BY POST/ EMAIL IN DUE COURSE. WHEREAS, NO NOTICE FOR FIXATIO N OF APPEAL WAS SENT TO ME BY POST, NEITHER THE LINK FOR DATE OF VIRTUAL/ PHYS ICAL HEARING WAS INTIMATED TO ME OR MY COUNSEL THROUGH EMAIL. 3. THAT NOW I HAVE RECEIVED AN ORDER DATED 18.12.2020 PASSED BY THE HONBLE BENCH F OF THE HON'BLE TRIBUNAL, NEW DELHI- DISMI SSING THE APPEAL EX-PARTE AND ON MERITS. 4. THAT IT IS MOST HUMBLY SUBMITTED THAT I HAVE PREFERRED THE VIYAD_SE VISHWAS SCHEME, 2020 VIDE FORM 1&2 U/R 3 & 3(2) OF THE DIRECT TAX VIVAD SE VISHWAS ACT. 2020' WHICH WAS ALREADY FILED ON 20 08 2020 (C OPY ENCLOSED ANNEXURE- B) . AFTER DUE CONSIDERATION THE HONBLE PR. COMMISSIO N OF INCOME TAX, NEW DELHI-12 ISSUED AN ORDER UNDER FORM -3, R.W.R. 3 OF THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020, DATED 15/12/2020 IT SELF, I.E. BEFORE THE DATE OF ORDER OF THE HONBLE BENCH-F ITAT, NEW DELHI. C OPY OF FORM-3 IS ENCLOSED @ANNEXURE-C. 5. THAT IT IS PERTINENT TO MENTION HERE THAT THE HONB LE MEMBERS, BENCH- F HAVE BEEN KIND ENOUGH TO GRANT THE LIBERTY TO ME AND APPROACH HONBLE ITAT FOR RESTORATION OF APPEAL, VIDE PAGE- 27 OF THE ORDER DATED 18/12/2020 (COPY OF THE ORDER IS ENCLOSED @AN NEXURE- D). 6. THAT THE SOLE PURPOSE OF RESTORATION OF THE APPEAL IS FOR THE ASSESSEE TO WITHDRAW THE SAME, SO THE BENEFITS OF THE DTVSVS, 2 020 BE AVAILED. 7. THAT KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTAN CES, IT IS MOST RESPECTFULLY PRAYED THAT THE APPEAL MAY VERY KINDLY BE RESTORED FOR HEARING. NOW, FOR FUTURE COURSE OF ACTION, MY COUN SEL SAMEER MALHOTRA, ADVOCATE, BE INTIMATED ON AKMLEGAL.75GMAI L.COM AND/OR [e-mail] . IF NECESSARY, THE SAME MAY ALSO BE ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 13 OF 20 INTIMATED ON MOBILE ON [phone] AND OR [phone]. (B.2) VIDE LETTER DATED 12 TH MARCH, 2021 MODIFIED APPLICATION FOR RESTORATION O F THE ASSESSEES APPEAL WAS FILED; RELEVANT PORTION OF WH ICH IS REPRODUCED BELOW: 2. THAT MY COUNSEL SH. SAMEER MALHOTRA, ADVOCATE W HO PERSONALLY FILED THE APPEAL WAS INFORMED THAT THE DATE OF HEARING WOULD BE INTIMATED BY POST/ EMAIL IN DUE COURSE. WHEREAS, I RECEIVED NO NOTICE FOR FIXA TION OF APPEAL THROUGH POST AND/OR EMAIL NOR THE SAME WAS COMMUNICATED TO MY CO UNSEL. ALSO, THE ORDER DATED 18/12/2019 HAS NOT BEEN RECEIVED BY ME OR MY COUNSE L THROUGH POST AND /OR EMAIL. 3. THAT NOW I HAVE RECEIVED AN ORDER DATED 18.12.2019 PASSED BY THE HONBLE BENCH F OF THE HON'BLE TRIBUNAL, NEW DELHI- DISMI SSING THE APPEAL EX-PARTE AND ON MERITS. SINCE I HAVE PREFERRED THE VIVAD SE VISHWA S SCHEME, 2020, MY COUNSEL CAME TO KNOW ABOUT THE ABOVE MENTIONED ORDER DATED 18/12/2019 ONLY WHEN HE VISITED THE HONBLE COURT ON 18/12/2020 (I.E. 1 YEA R AFTER PASSING OF THE ORDER), FOR FILING AN APPLICATION OF WITHDRAWAL OF THE ABOVE-ME NTIONED APPEAL. DUE TO THE SAME, THERE IS A DELAY IN FILING THIS MA BEFORE YOUR HONO RS. COPY OF APPLICATION FOR CONDONATION OF DELAY TO THE EFFECT IS FILED HEREWIT H, (ENCLOSED AT ANNEXURE- G OF THIS PAPER BOOK- 2). 4. THAT IT IS MOST HUMBLY SUBMITTED THAT 1 HAVE PREFER RED THE VIVAD SE VISHWAS SCHEME, 2020 VIDE FORM 1&2 U/R 3 & 3(2) OF THE DIRECT TAX VIVAD SE VISHWAS ACT. 2020 APPLICATION FOR WHICH WAS FILED ON 20/08/2020 BEFORE THE ED. PR. CJT- 12, NEW DELHI (COPY ALREADY ENCLOSED @ANNEXURE- B, PAGES- 6-15 OF PAPER BOOK- 1). AFTER DUE CONSIDERATION THE HON'BLE PR. COMMISSIONE R OF INCOME TAX, NEW DELHI- 12 ISSUED AN ORDER UNDER FORM- 3, R .W.R 3 OF THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020, DATED 15/12/2020 ITSELF. COPY OF FORM- 3 IS ALREADY ENCLOSED AT ANNEXURE- C, PAGE- 16-17 OF PAPER BOOK- 1). 5. THAT IT IS FURTHER SUBMITTED THAT IN ORDER TO SAVE THE PRECIOUS TIME OF THE HON'BLE COURT, THE ASSESSEE HAS DEPOSITED TAX IN FU LL TO THE TUNE OF RS. 5,04,891/- ON 01/03/2021, VIDE CHALLAN NO. 00001, BSR CODE 636 0195 AS PER THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (COPY OF CHALLAN ENCLOSED WITH SUBMISSION DATED 03/03/2021, PLACED ON RECORD ON 04/03/2021). 6. THAT IT IS PERTINENT TO MENTION HERE THAT THE HONB LE MEMBERS, BENCH- F HAVE BEEN KIND TO GRANT LIBERTY TO ME AND APPROACH HONBLE 1TAT FOR RESTORATION OF THIS APPEAL, VIDE PAGE- 27 OF THE ORDER DATED 18/12 /2019 (COPY OF THE ORDER IS ALREADY ENCLOSED AT ANNEXURE- D, PAGES 18-45 OF PAPER BOOK- 1). 7. THAT THE PURPOSE OF RESTORATION OF THE APPEAL IS TH AT, ME AND MY COUNSEL BOTH WERE NOT AWARE OF ANY HEARING HELD BEFORE THE HON'BLE BENCH PASSED THE ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 14 OF 20 ORDER DATED 18 12 2019 EX-PARTE. HERE IT IS NECESSA RY TO MENTION THAT IF THE APPEAL IS RESTORED, SINCE THE APPELLANT HAS ALREADY PREFERRED 'VIVAD SE VISHWAS SCHEME. 2020'. DUE TAXES HAVE ALREADY BEEN DEPOSITED: THE APPELLANT SHALL, AND INTENDS TO. WITHDRAW THE APPEA L UNCONDITIONALLY AND WITHOUT GOING INTO THE MERITS OF THE PRESENT MA TTER . (C) AT THE TIME OF HEARING BEFORE US ON 19.03.2021, IN CONNECTION WITH THE ASSESSEES MISCELLANEOUS APPLICATION REQUESTING FOR RESTORATIO N OF ASSESSEES APPEAL, THE ASSESSEE WAS NOT REPRESENTED BY ANYONE. WE HEARD THE LD. SE NIOR DEPARTMENTAL REPRESENTATIVE (LD. SR. DR, FOR SHORT) WHO SUBMITTED THAT THE MA IN PURPOSE OF THE REQUEST MADE BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION, FOR RESTORATION OF ASSESSEES APPEAL IS, TO AVAIL OF VIVAD SE VISHWAS SCHEME, 2020 (VSVS, FOR SHORT). SHE FURTHER SUBMITTED THAT EVEN IF THE ASSESSEES APPEAL STANDS DISMISSED BY I TAT, THE ASSESSEE COULD STILL AVAIL OF VSVS, 2020; AND FURTHER SUBMITTED THAT THERE WAS NO EMBARGO PROHIBITING THE ASSESSEE FROM AVAILING OF VSVS EVEN AFTER THE ASSESSEES APP EAL IS DISMISSED BY ITAT. SHE FURTHER DREW OUR ATTENTION TO THE FACT THAT DESIGNATED AUTH ORITY HAD ALREADY ISSUED CERTIFICATE UNDER SUB-SECTION (1) OF SECTION 5 OF THE DIRECT TA X VIVAD SE VISHWAS ACT, 2020 (3 OF 2020) THE DIRECT TAX VIVAD SE VISHWAS RULES, 2020 I N FORM 3; INTIMATING THE AMOUNTS DETERMINED BY REVENUE TO BE PAYABLE BY THE ASSESSEE TOWARDS FULL AND FINAL SETTLEMENT OF THE TAX ARREARS COVERED BY THE DECLARATION MADE BY THE ASSESSEE UNDER VSVS; AND SHE CONTENDED THAT THERE WAS NO NECESSITY FOR RESTORATI ON OF THE ASSESSEES APPEAL MERELY FOR ENABLING THE ASSESSEE TO AVAIL OF VSVS. (C.1) THERE ARE TWO ISSUES IN THE MISCELLANEOUS APPLICAT ION FILED BY THE ASSESSEE; FIRSTLY, WHETHER BAR OF LIMITATION PRESCRIBED U/S 254(2) OF I.T. ACT WILL APPLY; AND SECONDLY ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 15 OF 20 WHETHER THERE IS SUFFICIENT CAUSE FOR NON-APPEARANC E ON THE PART OF THE ASSESSEE WHEN THE ASSESSEES APPEAL IN ITAT WAS CALLED ON FOR HEA RING ON 17/12/2019; WITHIN THE MEANING OF PROVISO TO RULE 24 OF INCOME TAX (APPELL ATE TRIBUNAL) RULES, 1963. (D) WE HAVE PERUSED THE MATERIALS ON RECORD. ON BEHAL F OF REVENUE, LD. SR. DR HAS ADVANCED THE VIEW THAT EVEN AFTER THE ASSESSEES AP PEAL IS DISMISSED BY ITAT THE ASSESSEE COULD STILL AVAIL OF VSVS 2020 AND THAT TH ERE WAS NO EMBARGO PROHIBITING THE ASSESSEE FROM AVAILING OF VSVS EVEN AFTER THE ASSES SEES APPEAL IS DISMISSED BY ITAT. IT IS A MATTER OF RECORD THAT AFORESAID FORM-3 HAS ALR EADY BEEN ISSUED BY DESIGNATED AUTHORITY UNDER SUB-SECTION (1) OF SECTION 5 OF THE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (3 OF 2020) THE DIRECT TAX VIVAD SE VISHWAS RU LES, 2020. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE REQ UESTING FOR RESTORATION OF THE AFORESAID APPEAL IS PRESENTLY INFRUCTUOUS; AND THE ISSUES IN FOREGOING PARAGRAPH (C.1) ARE MERELY ACADEMIC AT PRESENT. ACCORDINGLY, THE MISCELLANEO US APPLICATION OF THE ASSESSEE VIDE M.A. NO. 24/DEL/2021 IS HEREBY DISMISSED BEING INFR UCTUOUS. (E) IN THE CASE OF M/S RITA PLASTICS PVT. LTD.; REVENU E FILED APPEAL IN ITAT VIDE ITA NO. 4159/DEL/2011 AGAINST THE IMPUGNED APPELLATE OR DER DATED 13.06.2011 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-XVIII, NEW DEL HI, RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE LD. CIT(A) ERRED IN ACCEPTING THE CLAIM OF THE ASSESSEE REPRESENTING SHARE CAPITAL OF ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 16 OF 20 RS. 1,10,75,000/- WHEREAS THE FACTS CLEARLY ESTABLI SH THE SAME AS BOGUS ACCOMMODATION ENTRY RECEIVED FROM ENTRY OPERATOR. 2. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) HAS ERRED IN RELYING UPON THE CASE LAW IN THE CASE OF M/S LOVELY EXPORTS PVT. LTD. WHEREAS THE FACTS IN THE INSTANT CASE ARE DIFF ERENT. 3. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ACCEPTING THE CLAIM OF THE ASSESSEE RE PRESENTING UNSECURED LOANS OF RS. 29,07,958/- WHEREAS THE FACTS CLEARLY INDICA TES THAT THE ASSESSEE HAS NOT PRODUCED EVIDENCES IN SUPPORT OF THE SAME. 4. THAT THE APPELLANT CRAVES TO BE ALLOWED TO ADD A NY FRESH GROUNDS OF APPEAL AND / OR DELETE OR AMEND ANY OF THE GROUNDS OF APPE AL. (E.1) REVENUES APPEAL WAS FIXED FOR HEARING ON VARIOUS DATES. AT THE TIME OF HEARING ON 16.03.2017 THE ASSESSEE WAS REPRESENTED BY NONE. REVENUES APPEAL WAS ALLOWED VIDE EX-PARTE (QUA THE RESPONDENT) ORDER DATED 13 TH APRIL, 2017. VIDE MISCELLANEOUS APPLICATION DATED 06.09.2017, THE ASSESSEE REQUESTE D FOR RECALLING OF AFORESAID ORDER DATED 13 TH APRIL,2017 OF ITAT TO ENABLE THE ASSESSEE TO REPRE SENT ITS CASE. THE RELEVANT PORTION OF THE AFORESAID MISCELLANEOUS APPLICATION DATED 06.09.2017 FILED BY ASSESSEE IS REPRODUCED AS UNDER: 1. THE REVENUE HAD FILED THE ABOVE APPEAL IN ITAT ON 15.11.2011 FOR THE ASSESSMENT YEAR 2007-08 WHICH HAS BEEN ALLOWED IN F AVOUR OF REVENUE VIDE ORDER DATED 13.04.2017 BY YOUR HONOURS. THE APPEAL OF R EVENUE WAS ALLOWED DUE TO ABSENCE OF THE APPLICANT COMPANY ON THE DATE OF HEA RING WHICH WAS FIXED FOR ON 16.03.2017. 2. THE APPLICANT REQUESTS YOUR HONOUR TO RECALL THE ORDER AS IT WAS PREVENTED BY BONA FIDE REASON FOR NOT BEING ABLE TO REPRESENT TH E CASE ON THE SAID DATE. 3. THE APPLICANT COMPANY HAS NOT BEEN CONDUCTING AN Y BUSINESS SINCE THE PAST MORE THAN 5 YEARS AND THE COMPANYS BANK ACCOUNT HA S BEEN TREATED AS A NON PERFORMING ASSET (NPA) BY THE STATE BANK OF INDIA. THE STATE BANK OF INDIA HAS TAKEN POSSESSION OF THE FACTORY PREMISES OF THE APP LICANT COMPANY AND NOTICES HAVE BEEN ISSUED UNDER SARFAESI ACT AND PROCEEDINGS HAVE BEEN CONTINUING IN THE DEBT RECOVERY TRIBUNAL. IN THE CIRCUMSTANCES THE A PPLICANT COMPANY HAS NOT BEEN ABLE TO ENGAGE ANY COUNSEL TO PRESENT HIS CASE DUE TO ITS INABILITY TO INCUR ANY FINANCIAL COST FOR THE SAME. ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 17 OF 20 4.THE MATTER WAS BEING PERSONALLY LOOKED AFTER BY T HE UNDERSIGNED IN LAST TWO- THREE HEARINGS DUE TO INABILITY OF THE APPLICANT TO INCUR FINANCIAL COST ON ENGAGEMENT OF A COUNSEL FOR THE ABOVE CASE. 5. THE APPLICANT COMPANYS DIRECTOR ASHOK BATRA HAD HIMSELF BEEN SEEKING ADJOURNMENT IT WAS SOUGHT LASTLY BY HIM ON 02.01.20 17 AND THE CASE WAS ADJOURNED TO 16.03.2017. 6. MYSELF THE DIRECTOR OF THE APPLICANT COMPANYS C OULD NOT REPRESENT THE CASE FIXED ON 16.03.2017 NOR SEEK ANY ADJOURNMENT DUE TO MYSEL F BEING ILL, A COPY OF MEDICAL CERTIFICATE EVIDENCING MY ILLNESS WHICH PREVENTED M E FROM ATTENDING THE ABOVE HEARING IS ENCLOSED FOR YOUR HONOURS PERUSAL. AN AFFIDAVIT TO THIS EFFECT IS ALSO ENCLOSED. YOU HONOUS ARE REQUESTED TO RECALL THE ORDER TO EN ABLE THE APPLICANT COMPANY TO REPRESENT ITS CASE. WE HOPE THE ABOVE WOULD SUFFIC E TO ENABLE THE HONBLE BENCH TO GIVE AN OPPORTUNITY TO THE APPLICANT TO REPRESEN T ITS CASE. (E.2) VIDE LETTER DATED 06.03.2021 FILED FROM ASSESSEES SIDE, IT WAS COMMUNICATED TO ITAT THAT THE ASSESSEE SOUGHT BENEFIT OF VSVS 2020. IT WAS FURTHER INFORMED THAT THE DESIGNATED AUTHORITY OF REVENUE HAD ALREADY ISSUED CERTIFICATE UNDER SUB-SECTION (1) OF SECTION 5 OF THE DIRECT TAX VIVAD SE VISHWAS ACT, 2 020 (3 OF 2020) THE DIRECT TAX VIVAD SE VISHWAS RULES, 2020 IN FORM 3. COPY OF FORM 3 I SSUED BY DESIGNATED AUTHORITY OF REVENUE WAS ALSO FILED ALONG WITH AFORESAID LETTER DATED 06.03.2021 WHEREIN DESIGNATED AUTHORITY HAS INTIMATED THE AMOUNTS DETERMINED BY R EVENUE TO BE PAYABLE BY THE ASSESSEE TOWARDS FULL AND FINAL SETTLEMENT OF THE T AX ARREARS COVERED BY THE DECLARATION MADE BY THE ASSESSEE UNDER VSVS. AT THE TIME OF HE ARING BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE (LD. AR, FOR SHORT) FOR THE ASSESS EE REQUESTED FOR RECALL OF AFORESAID EX- PARTE ORDER DATED 13 TH APRIL,2017 AND FURTHER SUBMITTED THAT THE ASSESSEE WISHED TO AVAIL OF BENEFIT UNDER VSVS. HE INFORMED THAT RELEVANT F ORMS WERE ALREADY FILED BY THE ASSESSEE UNDER VSVS AND FURTHER THAT THE DESIGNATED AUTHORITY OF REVENUE HAD ISSUED ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 18 OF 20 CERTIFICATE UNDER SUB-SECTION (1) OF SECTION 5 OF T HE DIRECT TAX VIVAD SE VISHWAS ACT, 2020 (3 OF 2020) THE DIRECT TAX VIVAD SE VISHWAS RU LES, 2020 IN AFORESAID FORM 3. (E.2.1) THE ISSUE IN THE MISCELLANEOUS APPLICATION IN THE CASE OF M/S RITA PLASTICS PVT. LTD. IS, WHETHER THERE WAS SUFFICIENT CAUSE FOR NON -APPEARANCE ON THE PART OF THE ASSESSEE WHEN REVENUES APPEAL WAS CALLED ON FOR HE ARING ON 16.03.2017; WITHIN THE MEANING OF PROVISO TO RULE 25 OF INCOME TAX (APPELL ATE TRIBUNAL) RULES, 1963. (F) IN THIS CONSOLIDATED ORDER, WE HAVE ALREADY TAKEN THE VIEW IN THE CASE OF RAJINDER SINGH VS. ACIT, IN FOREGOING PARAGRAPH (D) OF THIS ORDER, THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE REQUESTING FOR RE STORATION OF THE APPEAL IS PRESENTLY INFRUCTUOUS; AND ACCORDINGLY, THE MISCELLANEOUS APP LICATION OF THE ASSESSEE HAS BEEN DISMISSED BEING INFRUCTUOUS. FOLLOWING THE SAME D ECISION, WE HOLD IN THE CASE OF M/S RITA PLASTICS PVT. LTD. IN AFORESAID M.A. NO. 550/D EL/2017 ALSO, THAT THE APPLICATION FILED FOR RECALL OF ORDER DATED 13 TH APRIL,2017 OF ITAT IS INFRUCTUOUS PRESENTLY. THE ISSUE REFERRED TO IN FOREGOING PARAGRAPH (E.2.1) IS PRESE NTLY ACADEMIC IN NATURE. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY M/S RITA PLA STICS PVT. LTD. IS DISMISSED BEING INFRUCTUOUS. (G) BY WAY OF ABUNDANT CAUTION, WE HEREBY CLARIFY THAT THE ASSESSEE(S) WILL BE AT LIBERTY TO APPROACH ITAT AFRESH FOR RESTORATION OF CORRESPONDING APPEAL(S) FILED IN ITAT VIDE ITA NOS.2293/DEL/2017 AND 4159/DEL/2011 RESPEC TIVELY; AND FOR DECISION ON ISSUES ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 19 OF 20 REFERRED TO IN FOREGOING PARAGRAPHS (C.1) AND / OR (E.2.1), AS THE CASE MAY BE; IN CASE DISPUTES RAISED IN THE AFORESAID APPEAL(S) ARE NOT FULLY SETTLED UNDER VSVS. IF ANY SUCH REQUEST(S) IS / ARE RECEIVED FROM THE ASSESSEE(S) F OR RESTORATION OF THE APPEAL(S), THE SAME WILL BE CONSIDERED IN ITAT IN ACCORDANCE WITH LAW. (H) FOR STATISTICAL PURPOSES, BOTH MISCELLANEOUS APPLI CATIONS ARE TREATED AS DISMISSED BEING INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 25/03/2021. SD/- SD/- (AMIT SHUKLA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25/03/2021 POOJA/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ` M.A. NOS.- 24/DEL/2021 AND 550/DEL/2017. SHRI RAJINDER SINGH AND M/S RITA PLASTICS PVT. LTD . PAGE 20 OF 20 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER