I.T.O., Ward-1(2), Aligarh v. Sh. Upendra Gupta, Prop., Aligarh

ITA 110/AGR/2013 | 2007-2008
Pronouncement Date: 31-10-2013 | Result: Dismissed

Appeal Details

RSA Number 11020314 RSA 2013
Assessee PAN AECPG6518B
Bench Agra
Appeal Number ITA 110/AGR/2013
Duration Of Justice 6 month(s) 14 day(s)
Appellant I.T.O., Ward-1(2), Aligarh
Respondent Sh. Upendra Gupta, Prop., Aligarh
Appeal Type Income Tax Appeal
Pronouncement Date 31-10-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 31-10-2013
Date Of Final Hearing 31-10-2013
Next Hearing Date 31-10-2013
Assessment Year 2007-2008
Appeal Filed On 16-04-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE : SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI PRAMOD KUMAR ACCOUNTANT MEMBER ITA NO. 110/AGRA/2013 ASSTT. YEAR : 2007-08 INCOME-TAX OFFICER VS. SHRI UPENDRA GUPTA WARD 1(2) ALIGARH. PROP. M/S. BALAJI ADVERTISE RS 503 SQUARE TOWER MARRIS ROAD ALIGARH. (PAN: AECPG 6518 B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.D. SHARMA JR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 31.10.2013 DATE OF PRONOUNCEMENT OF ORDER : 31.10.2013 ORDER PER BHAVNESH SAINI J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) GHAZIABAD DATED 24.01.2013 FOR THE ASSESSMENT YEAR 2007-08 CHALLENGING THE DELETION OF ADDITION OF RS.22 84 000/- ON ACCOUNT O F UNEXPLAINED EXPENDITURE. 2. WE HAVE HEARD THE LD. DR AND PERUSED THE FINDING S OF THE AUTHORITIES BELOW. HOWEVER NONE APPEARED ON BEHALF OF THE ASSESSEE DE SPITE SERVICE OF NOTICE. ITA NO. 110/AGRA/2013 2 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS DERIVING INCOME FROM ADVERTISING AGENCY. THE CASE WAS REOPENED U/S. 148 OF THE IT ACT. THE INFORMATION WAS RECEIVED THAT CHEQUE AMOUNTING TO RS.22 84 000/- ISSUED FROM THE BANK ACCOUNT OF SMT. RASHMI GUPTA WIFE OF THE ASSE SSEE IN FAVOUR OF MNA NAGAR NIGAM ALIGARH HAS BEEN CREDITED IN THE BANK ACCOUN T OF THE ASSESSEE AND FINALLY NOT PAID TO THE NAGAR NIGAM. THE EXPLANATION OF THE ASSESSEE WAS CALLED FOR BUT IN ABSENCE OF PROPER REPRESENTATION THE AO MADE THE A DDITION OF RS.22 84 000/-. 4. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND THE WRITTEN SUBMISSION OF THE ASSESSEE WAS FILED WHICH IS INCO RPORATED IN THE APPELLATE ORDER IN WHICH IT WAS BRIEFLY EXPLAINED THAT THE AMOUNT I N QUESTION WAS PAID TO NAGAR NIGAM BY CHEQUE BEING HOARDING TAX RELATING TO ACTI VITIES CARRIED OUT BY SMT. RASHMI GUPTA WIFE OF THE ASSESSEE AND WAS CLAIMED AS EXPENDITURE U/S. 37 IN HER PROFIT & LOSS ACCOUNT WHICH WAS NOT ALLOWED BY THE AO AND THE LD. CIT(A) IN HER CASE. NO CHEQUE WAS ISSUED IN THE NAME OF THE ASSES SEE. THE ASSESSEE MADE A REQUEST TO CALL FOR THE RECORD OF HIS WIFE TO ASCER TAIN THIS FACT THAT PAYMENT WAS MADE TO NAGAR NIGAM BUT THE MATTER WAS NOT PROPERL Y CONSIDERED AND THE RECORD OF ASSESSEES WIFE WAS NOT CALLED FOR. IT WAS SUBMI TTED THAT FOR THE SAKE OF ARGUMENTS EVEN IF IT MAY BE ADMITTED THAT CHEQUE W AS TRANSFERRED FROM BANK ACCOUNT OF WIFE OF ASSESSEE HOW ADDITION COULD BE MADE AGAINST THE ASSESSEE IS NOT ITA NO. 110/AGRA/2013 3 EXPLAINED. THE LD. CIT(A) CALLED FOR THE REMAND REP ORT FROM THE AO AND AFTER TAKING REJOINDER FROM THE ASSESSEE DELETED THE ENT IRE ADDITION. THE FINDINGS OF THE LD. CIT(A) IN THE APPELLATE ORDER IN PARA 7.2 ARE R EPRODUCED AS UNDER : 7.2 GROUND OF APPEAL NO.2 THIS IS A GROUND CHALLENGING THE ADDITION OF RS.22 84 000/- ON MERIT. I FIND THAT THE ASSESSMENT WAS MADE WITHOUT PROPER REPRESENTATION FROM THE APPELLANT SIDE. AND ALSO FI ND THAT THE AO HAD NOT CONSIDERED SUBMISSIONS FILED BY THE ASSESSEE ON 20.12.2011. ALSO THE AO HAD NOT CALLED FOR THE RECORD OF SMT. RASHMI GUPTA FROM WHICH AUTHENTIC FACTUAL POSITION COULD HAVE BEEN GA THERED INCLUDING THE VIEW OF THE UNDERSIGNED TAKEN IN APPEAL OF SMT. RASHMI GUPTA ON THIS ISSUE UNDER CONSIDERATION VIZ. PAYMENT OF RS.2 2 84 000/- TO NAGAR NIGAM ALIGARH. SINCE VITAL INFORMATIONS RELEVANT TO THE ISSUE WERE NOT GATHERED/CONSIDERED BY THE AO; IT WAS THOUGHT APPRO PRIATE BY THE UNDERSIGNED TO REMAND THE APPELLANTS SUBMISSION AN D DOCUMENTS TO THE AO. AS THIS SUBMISSION DOCUMENTS WERE FOUND RE LEVANT FOR ADJUDICATION OF THE ISSUE AND HENCE ADMISSIBLE AT THIS STAGE. THE AO IN REMAND REPORT HAS MERELY REPEATED CONT ENTIONS AS MADE OUT BY THE AO IN THE ASSESSMENT ORDER. I DO AG REE WITH THE APPELLANT THAT THE AO PROCEEDED ON WRONG PREMISE T HAT THE ASSESSEE HAD RECEIVED A SUM OF RS.22 84 000/- IN HIS BANK AC COUNT. THE FACT IS THAT PAYMENT HAD BEEN MADE BY VARIOUS CHEQUES TO NA GAR NIGAM ALIGARH. THIS PAYMENT WAS REPORTEDLY MADE BY ASSESS EES WIFE SMT. RASHMI GUPTA AND WAS CLAIMED BY HER IN THE PROFIT & LOSS A/C OF HER PROPRIETORSHIP CONCERN M/S TANYA ADVERTISING. HOWEV ER THE AO WHILE ASSESSING THE CASE OF SMT. RASHMI GUPTA AND ALSO THE UNDERSIGNED WHILE ADJUDICATING THE APPEAL OF SMT. RASHMI GUPTA HELD THAT THIS PAYMENT WAS NOT ALLOWABLE IN THE HAND OF SMT. RASHMI GUPTA AS PAYMENT WERE AS PER SMT. RASHMI GUPTA HER SELF MADE TO NAGAR NIGAM ALIGARH TOWARDS THE CONTRACT ALLOTTED T O SH. UPENDRA GUPTA I.E. THE PRESENT APPELLANT. THE COUNSEL OF SMT. RASHMI GUPTA ITA NO. 110/AGRA/2013 4 COULD NOT EXPLAIN AS TO HOW THIS EXPENDITURE WAS DE BITABLE IN THE HANDS OF SMT. RASHMI GUPTA NOR THE COUNSEL COULD PR ESENT ANY DOCUMENT AND BOOKS OF THE ASSESSEE TO PROVE THAT TH E SAID PAYMENT HAD NOT BEEN CLAIMED EVEN IN THE BOOKS OF THE PRESE NT ASSESSEE. IN ABSENCE OF SATISFACTORILY EXPLANATION AND DETAILS; THE EXPENDITURE OF RS.22 84 000/- PAID BY CHEQUE TO NAGAR NIGAM ALIGA RH RELATING TO HOARDING TAX WERE NOT ALLOWED IN THE HANDS OF SMT. RASHMI GUPTA. BUT THE PRESENT AO MISREAD TO THE ENTIRE PICTURE A S IF THE ASSESSEE HAD RECEIVED A SUM OF RS.22 84 000/- FROM HIS WIFE AND THE SAME WAS REFLECTED IN ASSESSEES BANK ACCOUNT. THIS INTERPRETATION BY THE AO IS FOUND TO BE FACTU ALLY WRONG. THE AO HAD PRODUCED THE BANK STATEMENT TO PROVE THA T NO SUCH PAYMENT WENT INTO BANK ACCOUNT OF THE ASSESSEE. AS DESCRIBED EARLIER PAYMENT HAD BEEN MADE TO NAG AR NIGAM ALIGARH BUT NAGAR NIGAM AUTHORITY HAD REPORTEDLY C REDITED THE ACCOUNT OF THE APPELLANT (MAINTAINED WITH NAGAR NIG AM IN RESPECT OF CONTRACTS ALLOTTED). WHETHER SUCH EXPENDITURE IS AL LOWABLE IN THE HANDS OF SH. UPENDRA GUPTA OR WHETHER CONTRACT ALLO TTED TO SH. UPENDRA GUPTA WAS COMPLETED OR NOT; OR IF COMPLETED WHETHER THE SAME WAS COMPLETED BY THE APPELLANT OR BY THE APPEL LANTS WIFEALL SUCH ISSUES ARE NOT RELEVANT FOR THE PURPOSE OF PRE SENT ISSUE UNDER CONSIDERATION. WHAT IS RELEVANT IS THE FACT THAT CH EQUES AGGREGATING TO RS.22 84 000/-WERE NOT RECEIVED BY THE PRESENT APPE LLANT; RATHER THESE WERE PAID TO NAGAR NIGAM ALIGARH. THEREFORE IT WOU LD BE UTTERLY WRONG TO TREAT THIS AS RECEIVED BY THE APPELLANT AN D HENCE ASSESSABLE AS INCOME OF THE APPELLANT. IT IS ALSO CLEAR THAT THE PRESENT AO MISINTERPRETE D THE INFORMATION AS SENT OUT BY THE ITO W-1 ALIGARH. EVENTUALLY THIS MISINTERPRETATION LED TO A WRONG INFERENCE BY THE A O RESULTING INTO THE IMPUGNED ADDITION OF RS.22 84 000/-. THUS THE SAME DESERVES TO BE DELETED. THE APPELLANT SUCCEEDS IN GROUND OF APPEAL NO.2. ITA NO. 110/AGRA/2013 5 5. ON CONSIDERATION OF THE SUBMISSIONS OF THE LD. D R WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE ASSESSEE HAS SPECIF ICALLY PLEADED THAT THE CHEQUE IN QUESTION WAS GIVEN BY WIFE OF THE ASSESSEE TO NAGAR NIGAM AND EXPENDITURE WAS CLAIMED IN HER CASE WHICH WAS NOT ALLOWED BY THE A O AND THE LD. CIT(A). IT WAS ALSO CLAIMED THAT NO CHEQUE WAS CREDITED IN THE BAN K ACCOUNT OF THE ASSESSEE. THE AO HAS NOT CALLED FOR THE RECORD OF WIFE OF THE ASS ESSEE TO ASCERTAIN THE FACT. THE LD. CIT(A) THEREFORE ON EXAMINATION OF THE FACTS CORRECTLY FOUND THAT THE AO HAS MADE THE ADDITION ON WRONG PREMISE. THE LD. CIT(A) HELD THAT PAYMENT WAS MADE IN FACT TO NAGAR NIGAM ALIGARH WHICH WAS CLAIMED B Y WIFE OF ASSESSEE IN HER PROFIT AND LOSS ACCOUNT. THEREFORE THE FINDING OF THE AO WAS FOUND TO BE FACTUALLY WRONG. THE FINDING OF FACT RECORDED BY THE LD. CIT( A) HAS NOT BEEN REBUTTED THROUGH ANY MATERIAL ON RECORD. THEREFORE THE REVE NUE DEPARTMENT MISERABLY FAILED TO POINT OUT ANY INFIRMITY IN THE ORDER OF T HE LD. CIT(A) IN DELETING THE ADDITION. WE THEREFORE DO NOT FIND ANY MERIT IN T HE DEPARTMENTAL APPEAL. THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- ITA NO. 110/AGRA/2013 6 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY