M/s. Mass Con (India) Pvt. Ltd., New Delhi v. ITO, New Delhi

ITA 1940/DEL/2012 | 2005-2006
Pronouncement Date: 11-10-2013 | Result: Allowed

Appeal Details

RSA Number 194020114 RSA 2012
Assessee PAN AACCM5506C
Bench Delhi
Appeal Number ITA 1940/DEL/2012
Duration Of Justice 1 year(s) 5 month(s) 15 day(s)
Appellant M/s. Mass Con (India) Pvt. Ltd., New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 11-10-2013
Date Of Final Hearing 03-10-2013
Next Hearing Date 03-10-2013
Assessment Year 2005-2006
Appeal Filed On 26-04-2012
Judgment Text
ITA NO. 1940/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI SHAMIM YAHYA ACCOUNTANT MEMBER AND SHRI C.M. GARG JUDICIAL MEMBER I.T.A. NO. 1940 /DEL/201 2 A.Y. : 2005-06 M/S MASS CON (INDIA) PVT. LTD. A-3D VISHWAKARMA COLONY PUL PAHALADPUR BADARPUR NEW DELHI 110 044 (PAN: AACCM5506C) VS. ITO WARD 6(3) NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. S.N. NAUTIAL & SH. Y.K. RATHI ADVOCATES DEPARTMENT BY : MRS. RENUKA JAIN GUPTA SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-IX NE W DELHI DATED 20.1.2012 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED READ AS UNDER:- (I) THAT THE LD. CIT(A) ERRED IN LAW AND FACTS TO U PHOLD THE ADDITION OF RS. 5 20 000/- TO ASSESSEES INCOME AS UNPROVED BOOKING AMOUNT FROM ONE OF THE CUSTOMERS. (II) THAT THE LD. CIT(A) ERRED IN LAW AND FACTS IN UPHOLDING THE ESTIMATED ADDITION OF RS. 25 000/- OUT OF TOTAL VEH ICLE EXPENSES OF RS. 1 11 208/- ITA NO. 1940/DEL/2012 2 (III) THAT THE ASSESSEE MAY BE ALLOWED TO ADD / DELETE/ AMEND / ALTER / SUBSTITUTE ANY GROUND(S) OF APPEAL ON OR BEFORE THE DATE OF HEARING. 3. APROPOS ADDITION OF RS. 5.20 LACS APROPOS ADDITION OF RS. 5.20 LACS APROPOS ADDITION OF RS. 5.20 LACS APROPOS ADDITION OF RS. 5.20 LACS ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF CI VIL CONSTRUCTION. IN THE COURSE OF ASSESSMENT AO HAS EXAMINED THE UNSECURED LOANS AND ADVANCES RECEIVED DURING THE Y EAR. FROM THIS EXAMINATION AO FOUND THAT ASSESSEE COMPANY HAS CLAI MED TO HAVE RECEIVED AN ADVANCE OF RS. 5.20 LACS FROM SHRI UDAI VIR SINGH. HOWEVER THE ASSESSEE COULD NOT PROVIDE CONFIRMATI ON FROM HIM. IN THESE CIRCUMSTANCES AO PROCEEDED TO INVOKE THE PRO VISIONS OF SECTION 68. ASSESSEE IN THIS REGARD RESPONDED AS UNDER:- THE WE HAVE RECEIVED AN AMOUNT OF RS. 5 20 000- (RU PEE FIVE LAC TWENTY THOUSAND ONLY) FROM SH. UDAYVEER SINGH B ALYAN R/O B-230 SECTOR-52 NOIDA UP AS BOOKING AMOUNT O F SPACE AT VASUNDHARA PLAZA LAUNCHED BY US IN F.Y. 2004-05. THAT LATER ON AS ON REQUEST WE WERE CANCEL THE BOOKING AND REF UND THE BOOKING AMOUNT OF RS. 5 20 000/- (RUPEES FIVE LAC T WENTY THOUSAND ONLY). VIDE CHEQUE NO. 304528 DATED 03.12 .2005 DRAWN ON ORIENTAL BANK OF COMMERCE SITE-IV SAHIBA BAD GAZIABAD UP WITHOUT INTEREST. LEDGER ACCOUTN OF TH E SUBSEQUENT YEAR 2005-06 ENCLOSED. 3.1 AO WAS NOT SATISFIED WITH THE ABOVE. HE OBSERVE D THAT ASSESSEE HAS FAILED TO FILE CONFIRMATION FROM THE P ARTY DESPITE SUFFICIENT OPPORTUNITIES. HENCE AO HELD THAT A S UM OF RS. 5 20 000/- WAS ADDED U/S. 68 OF THE I.T. ACT TO TH E TOTAL INCOME OF THE ASSESSEE. ITA NO. 1940/DEL/2012 3 4. BEFORE THE LD. CIT(A) ASSESSEE SUBMITTED THAT T HE ASSESSEE HAS DULY SUBMITTED THE NAME ADDRESS OF THE CREDITO RS AND HIS PAN NO.. LD. CIT(A) ALSO NOTED THAT THE ASSESSEES CON TENTION IS THAT AO ALSO DID NOT ISSUE NOTICE U/S. 131 OF THE I.T. ACT TO ENQUIRE INTO THE DETAILS FURNISHED BY THE ASSESSEE. HOWEVER LD. CI T(A) WAS NOT CONVINCED AND PROCEEDED TO UPHOLD THE ADDITION IN T HIS REGARD. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS DULY GIVEN THE NAME ADDRESS AND PAN NO. OF THE CREDITORS TO THE AO. ASSESSEE WAS NOT IN A POSITION TO OBTAIN THE CONFIR MATION FROM THE PARTY. HOWEVER THE SAID AMOUNT WAS REPAID BY CHE QUE IN THE NEXT FINANCIAL YEAR. IN THESE CIRCUMSTANCES HE SUBMITT ED THAT ASSESSEE HAS DISCHARGED ITS ONUS AND HENCE HE SUBMITTED THA T NO ADDITION U/S. 68 IS MAINTAINABLE. 6.1 LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND SUBMITTED THAT ASSESSEE HAS NOT DISCHARGED ITS ONUS . SHE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. SH E FURTHER PLACED RELIANCE OF THE HONBLE JURISDICTIONAL HIGH COURT D ECISION IN THE CASE OF C.I.T. VS. NOVA PROMOTERS & FINLEASE (P) LTD. 34 2 ITR 169. 6.2 WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AN D PERUSED THE RECORDS. WE FIND THAT IN THIS REGARD ASSESSEE HAS RECEIVED AN ADVANCE OF RS. 5.20 LACS FOR BOOKING OF SHOP FROM S H. UDAYVEER SINGH. ASSESSEE WAS NOT IN A POSITION TO OBTAIN AN Y CONFIRMATION FROM HIM. THE ABSENCE OF CONFIRMATION LED THE AO TO FORM AN OPINION THAT SECTION 68 WAS INVOCABLE IN THE SITUA TION. HOWEVER WE FIND THAT IT IS UNDISPUTED THAT IN THIS CASE ASSESS EE HAS SUBMITTED THE NAME ADDRESS AND PAN OF THE CREDITORS. IN SUC H A SITUATION IT WAS INCUMBENT UPON THE AO TO ISSUE NOTICE U/S. 131 OF THE I.T. ACT TO ITA NO. 1940/DEL/2012 4 THE CONCERNED LENDER IF HE HAD ANY DOUBT ABOUT THE VERACITY OF THIS TRANSACTION WITH THE ASSESSEE. WE FIND THAT THE HO NBLE APEX COURT IN THE CASE OF C.I.T. VS. ORISSA CORPORATION PVT. L TD. 159 ITR 78 HAS HELD THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAMES AN D ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE K NOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME TAX ASS ESSEES. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE APART FROM ISSUING NOTICES UNDER SECTION 131 AT THE INSTA NCE OF THE RESPONDENT DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CR EDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTHY. THERE WAS NO EF FORT MADE TO PURSUE THE SO CALLED ALLEGED CREDITORS. IN THOSE CI RCUMSTANCES THE RESPONDENT COULD NOT DO ANY THING FURTHER. IN THE P REMISES IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAS DISCHARGED THE BURDEN THAT LAY ON IT THEN IT COULD NOT BE SAI D THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION WAS BASED ON SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT NO QUESTION OF LAW AS SUCH ARO SE. THE HIGH COURT WAS RIGHT IN REFUSING TO STATE A CASE. 6.3 IN THIS CASE WE FIND THAT THE NAMES ADDRESS AN D PAN OF THE CREDITORS WAS KNOWN TO THE REVENUE STILL THE AO HA S INSISTED ON THE ASSESSEE TO FURNISH THE CONFIRMATION AND IN THE AB SENCE THEREOF HE MADE THE ADDITION U/S. 68 OF THE I.T. ACT. IN OUR C ONSIDERED OPINION ASSESSEE HAS DULY DISCHARGED ITS ONUS. IF THE AO WA S NOT SATISFIED HE COULD HAVE SUMMONED THE CREDITOR BY ISSUING THE NOTICE U/S. 131 OF THE I.T. ACT. IN THIS CASE WE NOTE THAT AO HAS NOT DONE THIS EXERCISE. IN SUCH A SITUATION IN OUR CONSIDERED O PINION THE AMOUNT ITA NO. 1940/DEL/2012 5 RECEIVED CANNOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. THE CASE LAW OF THE HONBLE JURISDICTIONAL HIGH COUR T RELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE IS NOT APPLICAB LE ON THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE BACKGROUND O F THE AFORESAID DISCUSSIONS AND PRECEDENT FROM APEX COURT WE SET A SIDE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FA VOUR OF THE ASSESSEE. 7. APROPOS ISSUE OF ADDITION OF RS. 25 000/ APROPOS ISSUE OF ADDITION OF RS. 25 000/ APROPOS ISSUE OF ADDITION OF RS. 25 000/ APROPOS ISSUE OF ADDITION OF RS. 25 000/- -- - ON THIS ISSUE AO NOTED THAT AS PER THE PROFIT AND LOSS ACCOUNT OF THE ASSESSEE UNDER THE HEAD VEHICLE RUNNING AND MAINTENANCE EXPENSES ASSESSEE CLAIMED AN AMOUNT OF RS. 1 11 20 8/-. ASSESSEE WAS REQUIRED TO PRODUCE THE SUPPORTING BILLS AND VO UCHERS FOR VERIFICATION. AO EXAMINED THE BILLS VOUCHERS ON T EST CHECK BASIS. HE NOTED THAT IN RESPECT OF CERTAIN EXPENSES BILLS AND VOUCHERS WERE NOT PRODUCED. HENCE THE AO MADE DISALLOWANCE OF RS. 25 000/- ON ESTIMATE BASIS TO COVER UP THE LEAKAGE ON THIS ACCOUNT. 8. UPON ASSESSEES APPEAL LD. CIT(A) AFFIRMED THE A DDITION. 9. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 10. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT AO IN THIS CASE HAS NOT POINTED OUT AS TO WHICH OF THE VOUCHERS WERE NOT AVAILABLE. HE HAS MADE AN ADDITI ON ON ESTIMATE BASIS WITHOUT POINTING OUT THE SPECIFIC SHORTCOMING S. IN OUR ITA NO. 1940/DEL/2012 6 CONSIDERED OPINION WHEN THE AO HAS NOT BEEN ABLE T O POINT OUT THE SPECIFIC DEFECTS THE ADDITION IN THIS REGARD IS NO T SUSTAINABLE. HENCE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AN D DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/10/2013. SD/- SD/- [ [[ [C. M. GARG C. M. GARG C. M. GARG C. M. GARG] ]] ] [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 11/10/2013 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