Smt. Tanuja Bindra, New Delhi v. ACIT, New Delhi

ITA 4479/DEL/2009 | 2006-2007
Pronouncement Date: 23-04-2010 | Result: Allowed

Appeal Details

RSA Number 447920114 RSA 2009
Assessee PAN AAGPB4452L
Bench Delhi
Appeal Number ITA 4479/DEL/2009
Duration Of Justice 4 month(s) 28 day(s)
Appellant Smt. Tanuja Bindra, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 23-04-2010
Date Of Final Hearing 20-04-2010
Next Hearing Date 20-04-2010
Assessment Year 2006-2007
Appeal Filed On 25-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : H NEW DELHI) BEFORE SHRI A.D. JAIN J UDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA. NO.4479/DEL./2009 (ASSESSMENT YEAR : 2006-07) SMT. TANUJA BINDRA VS. ACIT CEN. CIRCLE 9 PROP. M/S MOETS CHINESE CUISINE NEW DELHI. 50 DEFENCE COLONY MKT. NEW DELHI. (PAN/GIR NO.AAGPB4452L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANIL JAIN ADV. REVENUE BY : SHRI SUKHESH JAIN SR.DR ORDER PER A.K. GARODIA AM THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF CIT(A)-II NEW DELHI DATED 28.10.2009 FOR AY 2006-07. THE GROUNDS RAISE D BY THE ASSESSEE READS AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN CONFIRMING AND ESTIM ATING THE G.P. RATE FROM M/S MOETS CHINESE CUISINE @ 25% AS AGAINST 30 % ESTIMATED BY AO AND 19.29% AS PER BOOKS OF ACCOUNT WITHOUT REJECTION OF BOOKS OF ACCOUNT OR ANY ADVERSE MAT3RI AL UNDER SEIZURE. 2. THE LD.CIT)(A) HAS ERRED IN APPLYING THE DECISIO N OF HIS PREDECESSOR IN THE CASE OF SISTER CONCERN MOETS BA R BE QUE FOR THE AY 2004-05 AND 2005-06 JN WHICH 25% G.P. RATE WAS E STIMATED BY THE CIT(A) WITHOUT FINDING ANY ADVERSE MATERIAL IN THE CASE OF THE ASSESSEE AND AGREEING TO THE VARIOUS CONTENTIONS OF THE APPELLANT. 3. THE ORDER OF THE LD.CIT(A) IS AGAINST LAW AND FA CTS OF THE CASE. 2. BRIEF FACTS ARE THAT A SEARCH WAS CONDUCTED ON 6 .12.2005 IN THE MOETS GROUP OF CASES AND IT INCLUDED THE BUSINESS PREMISES OF THE ASSESSEE A-50 DEFENCE COLONY NEW DELHI. THE ASSESSEE IS PROPRIETOR OF A RESTAURANT IN THE NAME AND STYLE OF M/S MOETS CHINESE CUISINE. THE AO HAS REFERRED TO SOME STATE MENT OF EMPLOYEES OF THE ASSESSEE ITA NO.4479/DEL./2009 (AY : 2006-07) 2 AND AO WAS DOUBTING ABOUT THE SALES RECORDED IN THE BOOKS OF THE ASSESSEE BUT ULTIMATELY THE AO DID NOT MAKE ANY ADDITION ON ACCOUNT OF ANY SUPPRESSED SALE AND THE ONLY ADDITION MADE BY THE AO OF RS.424 862/- IS ON THE B ASIS OF ESTIMATING THE G.P. OF THE ASSESSEE AT THE RATE OF 30% OF THE SALES OF RS.39 6 7 945/- BEING THE SALES DECLARED BY THE ASSESSEE ITSELF AS AGAINST G.P. RATE OF 19.29% DECL ARED BY THE ASSESSEE. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E CIT(A) WHO HAS RESTRICTED THE ADDITION TO THE EXTENT OF G.P. @ 25% OF SALES AND N OW THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. IT IS SUBMITTED BY THE LD.AR OF THE ASSESSEE THA T BOOKS WERE NOT REJECTED BY THE AO AND HENCE THE G.P. DECLARED BY THE ASSESSEE CANN OT BE DISTURBED. REGARDING THE DECISION OF LD.CIT(A) IN THE CASE OF MOETS BAR BE QUE FOR AYS 2004-05 & 05-06 WHICH HAS BEEN FOLLOWED BY THE CIT(A) IN THE PRESEN T CASE AS PER PARA 2.3.1 OF HIS ORDER IT WAS SUBMITTED THAT IN THOSE TWO YEARS OF THAT AS SESSEE THERE WERE MATERIAL FOUND REGARDING SUPPRESSION OF SALES. IN SUPPORT OF THIS CONTENTION HE SUBMITTED A COPY OF THE ORDER OF THE CIT(A) IN THE CASE FOR THOSE TWO YEARS OF THAT ASSESSEE. FOR AY 2004-05 OUR ATTENTION WAS DRAWN TO PAGE 3 OF THE ORDER OF THE C IT(A) WHEREIN IT IS NOTED BY HIM THAT THE SALES AS PER SEIZED PAPER WERE COMING TO RS.27. 04 LAKH WHEREAS IN THE BOOKS OF ACCOUNT SALES WERE RECORDED ONLY TO THE EXTENT OF RS.15.03 LAKH AND HENCE THERE WAS UN- RECORDED SALES OF RS.12 LAKH. SIMILARLY OUR ATTEN TION WAS DRAWN TO PAGE 2 OF THE ORDER OF THE CIT(A) IN AY 2005-06 WHEREIN IT IS NOTED BY THE CIT(A) THAT THE ASSESSEE FIRM HAD INCLUDED THE UNACCOUNTED SALES OF RS.20.26 LAKH FOR AY 2005-06. IT IS SUBMITTED THAT IN THE PRESENT CASE THERE IS NO ALLEGATION REGARDING ANY UNACCOUNTED SALES AND IN FACT NO ADDITION WAS MADE ON ACCOUNT OF ANY UNACCOUNTED SAL ES AND HENCE THE DECISION IN THOSE CASES HAS NO BEARING IN THE PRESENT CASE. RELIANCE WAS PLACED ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF ITO VS. NARMADA CEMENT CO. LTD. REPORTED IN 81 TTJ 955 IN SUPPORT OF THIS CONTENTION THAT WHEN NO MISTAKE IS POINTED OUT IN THE BOOKS AND THE BOOKS WERE NOT REJECTED NO ADDITION CAN BE MADE ON ESTIM ATION BASIS. 4. AS AGAINST THIS LD.DR OF THE REVENUE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. IT IS ALSO SUBMITTED BY THE LD.DR OF THE RE VENUE THAT BOOKS OF ACCOUNT WERE NOT REJECTED BY THE AO BY MAKING SPECIFIC MENTION IN TH E ASSESSMENT ORDER TO THAT EFFECT BUT REJECTION OF BOOKS BY THE AO IS DISCERNIBLE FROM TH E ASSESSMENT ORDER ALTHOUGH NOT SO ITA NO.4479/DEL./2009 (AY : 2006-07) 3 MENTIONED SPECIFICALLY . IT IS ALSO SUBMITTED THAT DEFECTS IN BOOKS ARE POINTED OUT BY THE AO AND HENCE G.P. HAS TO BE ESTIMATED. HE SUPPORTE D THE ORDER OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IN THE PRESENT CAS E NO ADDITION HAS BEEN MADE ON ACCOUNT OF ANY SUPPRESSION OF SALES BECAUSE EVEN TH E INCREASED G.P. RATE OF 30% BY THE AO AND 25% BY THE CIT(A) HAS BEEN APPLIED TO THE SA LES DECLARED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT AT RS.39.67 LACS. IN THE ASSESSMEN T ORDER THERE IS NO ALLEGATION THAT ANY EXPENSES HAVE BEEN INFLATED BY THE ASSESSEE. A GEN ERAL STATEMENT IS MADE BY THE AO IN PARA 6 OF THE ASSESSMENT ORDER THAT THE ASSESSEE IS NOT MAINTAINING COMPLETE BOOKS OF ACCOUNT AND THE SALE AND PURCHASE MADE ARE NOT SUPP ORTED WITH SALE BILLS/PURCHASE BILLS/VOUCHERS BUT EVEN AFTER STATING SO THE AO H AS ACCEPTED THE SALES DECLARED BY THE ASSESSEE AT RS.39.67 LAKHS AND HE HAS MADE ADDITION BY ESTIMATING THE G.P. RATE OF 30% ON THE BASIS OF OTHER GROUP CASES. THE CIT(A) HAS REF ERRED TO TWO ORDERS OF THE CIT(A) IN THE CASE OF MOETS BAR BE QUE FOR AYS 2004-05 & 05- 06 IN WHICH CIT(A) HAS REDUCED THE G.P. RATE ESTIMATION FROM 30% TO 25%. LD.AR OF THE ASSESSEE HAS SUBMITTED BEFORE US THE COPY OF THE ORDER OF CIT(A) FOR THOSE TWO YEARS IN THE CASE OF MOETS BAR BE QUE AND WE HAVE SEEN THAT IN THOSE TWO CASES SUPPRESSED SA LE WAS THERE WHEREAS IN THE PRESENT CASE THERE IS NO SUPPRESSED SALE AND HENCE DECISIO N IN THOSE TWO YEARS OF MOETSBAR BE QUE HAS NO RELEVANCE FOR DECIDING THE ISSUE IN DISP UTE IN THE PRESENT CASE. NO INDEPENDENT REASONING IS GIVEN BY THE AUTHORITIES B ELOW FOR MAKING ADDITION IN THE PRESENT CASE AND THE ADDITION WAS MADE BY THEM SIMP LY ON THE BASIS OF GROUP CASES. UNDER THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION WAS MADE ON THE BASIS OF SUSPICION AND DOUBT WITHOUT BRINGING ANY A DVERSE MATERIAL ON RECORD TO INDICATE THAT THE GROSS PROFIT DECLARED BY THE ASSESSEE IN H ER REGULAR BOOKS OF ACCOUNT IS NOT CORRECT AND RELIABLE. IN THE ABSENCE OF ANY ADVERSE MATERIA L WE ARE OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO AND PARTLY CONFIRMED BY THE CIT(A) CANNOT BE SUSTAINED PARTICULARLY WHEN THE BOOKS OF ACCOUNT OF THE ASSES SEE ARE NOT REJECTED BY THE AO AND THERE IS NO SPECIFIC INSTANCE POINTED OUT BY THE AO INDICATING INFLATION OF EXPENSES. WE THEREFORE DELETE THE ADDITION MADE BY THE AO AND P ARTLY CONFIRMED BY THE CIT(A). ITA NO.4479/DEL./2009 (AY : 2006-07) 4 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 6. ORDER PRONOUNCED IN OPEN COURT ON 23.04.2010. SD/- SD/- (A.D. JAIN) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED APRIL 23 2009. SKB COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-II NEW DELHI. 5.CIT(ITAT) NEW DELHI. AR/ITAT