Sh. Brij Gopal Chauhan, Delhi V. ITO, New Delhi

MA 669/DEL/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5151 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 25-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘A’: NEW DELHI (Through Video Conferencing) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER MA No.669/DEL/2018 (Arising out of ITA No.1843/DEL/2015) [Assessment Year: 2010-11] Brij Gopal Chauhan, A-7, Kondli, Delhi-110096 DCIT, LTU, New Delhi PAN-AHFPC5855M Assessee Revenue Assessee by Sh. K.R. Manjani, Adv. Revenue by Sh. M. Barnwal, Sr. DR Date of Hearing 03.12.2021 Date of Pronouncement 22.02.2022 ORDER PER R.K. PANDA, AM, The assessee, through this Miscellaneous Application, has requested the Tribunal to rectify certain mistakes that have crept in the order of the Tribunal. 2. The ld. Counsel for the assessee drew the attention of the Bench to the contents of the Miscellaneous Application which reads as under:- 2 MA No.669/Del/2018 “Respectfully it is submitted that above matters were heard on 19.9.2018 and decided vide Orders dated 27.9.2018 which have been received on 10.10.2018 for which I am thankful. It contains the following serious factual mistakes, which, if not rectified, will adversely affect the assessee in fresh hearing before the Learned I.T.O.: a) That as already shown in the facts before the Learned CIT (A) and also argued before your honour, the Appellant was engaged in business of purchase and sale of paints and sanitary goods. His business, by the grace of God, prospered, which is clear from figures of sales and income, as per Chart at page 1 and page 29. One of the persons in C.A’s Office advised the Appellant that he would arrange for him loan of Rs. 2.00 crores from the Bank so that his business may thrive more. For this purpose, the person concerned prepared farzi Trading, P&l account and Balance Sheet for three year i.e. Asst. Years 2010-11 to 2012-13. Whereas the true position of the Appellant is as shown at pages 12 to 14 of the Paper Book. What is shown in items 1 to 5 in para 2 on pages 2 & 3 of the Tribunal order are figures of farzi statements. This fact is not indicated anywhere in Tribunal’s order. The factum for farzi balance sheet etc. is clear from comments on Income Tax Officer’s remand report as per pages 2 to 10 of the Paper Book. The return, which was available with the Learned A.O. and which was taken in scrutiny is not signed by the Appellant, which is also clear from Addl. Chief Metropolitan Magistrate (Special Acts)-Central, Tis Hazari, Delhi’s, order as per para 5 on page 23 of the Paper Book in which the Appellant stated that he did not file manual return i.e. Exhibit PW-1/4. On account of non compliance of AO’s notices, prosecution of the Appellant u/s 276D of IT Act was launched and the Order dated 1.4.2015 of the Addl. Chief Metropolitan Magistrate dismissing the complaint of the Department is at page 21. In this it is duly shown that not a single notice, even the primary first notice, was served on the Appellant before passing the assessment order. ( It is 3 MA No.669/Del/2018 on this account that nobody informed the learned A.O. about the correct position because all this was at the instance of Office of the C.A. who had filed farzi statement and return and therefore did not inform the learned A.O. about the correct factual position). b) In para 3 on page 3 of the Tribunal’s Orders, it is stated that the assesses failed to produce Books of Accounts. Here no Books of Accounts were written, which is also clear from C.A’s statement and Appellant’s statement recorded by the learned A.O. in survey which was done after passing of the assessment order when it was found that the Appellant had hardly closing stock of about Rs. 6 lakhs whereas Farzi Statements show heavy stock of more than Rs. 50 lakhs. Even the Appellant’s premises were found to be too small to have such heavy stock of more than Rs. 50 lakhs. c) In para 4 of the Tribunal’s orders on pages 3-4, it is written that CIT(A) has stated that the assessee did not produce Books which position is correct and it is because no Books were kept. The appellant has got only details of sales which are also supported by copy of Sales of Sales Tax Returns. There is also no question of Audit Report, because sales in all years are below Rs. 40 lakhs in each of the three assessment years i.e. 2010-11 to 2012-13. d) In para 6 of the Tribunal’s Orders it is clearly stated that Counsel, who appeared before the learned A.O. made wrong representations. It is because of this that the learned A.O. passed heavy pitched assessment. It is after assessment that the appellant came to the undersigned Counsel who had requested the learned A.O. to give inspection but the learned A.O. did not give inspection which fact is also clear from our letters to the CIT(A) stating that we are handicapped in filing the proper Appeal and pursuing the appeal because the present Counsel was new to the case and without inspection of file cannot know the correct position. The Learned A.O. did not allow the inspection inspite of the fact that the inspection fee was paid on 4 MA No.669/Del/2018 19.09.2013 and 18.8.2016. This inspection was allowed only on 20.05.2016 after which the learned CIT(A) was informed that the return and accounts statement filed before the learned A.O. were wrong. e) In para 7, it is correctly written that though as per record, repeated opportunities are shown to have been granted by A.O. but the assessee did not comply because he did not receive even a single notice or opportunity on which account the Department’s complaint u/s 276D before the Metropolitan Magistrate for prosecution of the assessee for non compliance of the notices has been dismissed. This mutatis mutandis also applies to para (a) where your honour have stated that “we find despite giving number of opportunities, the assessee did not produce requisite details before the A.O. nor produced the books of Accounts and Audit Report, for which A.O. determined the total income of Rs.2,56,43,876/- by making various additions.” The reasons for non compliance by the assessee is non receipt of any of the notices or opportunities. In view of the above mistakes, it is humbly prayed that above facts including non receipt of notices by the assessee and preparation of farzi Trading Accounts, Profit & Loss Account and Balance Sheets may kindly be brought suitably in the Order so that assessee is not affected adversely because of non mention of correct factual position in the Tribunal’s order.” 3. Referring to the contents of the Miscellaneous Application, the ld. Counsel for the assessee submitted that the same is self explanatory, therefore, the Tribunal should modify the order of the Tribunal by giving suitable direction so that the assessee is not adversely affected because of non mention of correct factual position in the order of the Tribunal. 5 MA No.669/Del/2018 4. The Ld. DR, on the other hand, opposed the Miscellaneous Application filed by the assessee. He submitted that the matter has already been restored to the file of the Assessing Officer and therefore the assessee is at liberty to make all his submissions before the Assessing Officer. He submitted that the assessee through this Miscellaneous Application is trying to persuade the Tribunal to modify the order which amounts to review of its own order by the Tribunal, which is not permissible in law. He accordingly submitted that the Miscellaneous Application filed by the assessee should be dismissed. 5. We have heard the rival arguments made by both the sides and perused the record. We are of the considered opinion that the apprehensions of the Ld. Counsel for the assessee are premature at this juncture. The AO has been directed to give an opportunity to the assessee to substantiate his case. Therefore, the assessee may bring to the notice of the AO whatever the assessee wants to say and the AO is supposed to consider the submissions and material brought before him. Since, there is no apparent error in the order of the Tribunal and the contents of the Miscellaneous Application 6 MA No.669/Del/2018 are only apprehensions of the ld. Counsel for the assessee, therefore, the Miscellaneous Application filed by the assessee being devoid of any merit is dismissed. 6. In the result, the Miscellaneous Application filed by the assessee is dismissed. Oder pronounced in the open court on 22 nd February, 202. Sd/- Sd/- [AMIT SHUKLA] [R.K.PANDA] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi; Dated: 22 nd February, 2022. f{x~{tÜ? f{x~{tÜ?f{x~{tÜ? f{x~{tÜ? fÜA fÜA fÜA fÜA P.S P.SP.S P.S Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi