M/s. Welco Sanitation Pvt. Ltd., New Delhi v. ITO, New Delhi

ITA 4882/DEL/2015 | 2008-2009
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 488220114 RSA 2015
Assessee PAN AAACW5516G
Bench Delhi
Appeal Number ITA 4882/DEL/2015
Duration Of Justice 1 year(s) 2 month(s) 2 day(s)
Appellant M/s. Welco Sanitation Pvt. Ltd., New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC 2
Tribunal Order Date 30-09-2016
Date Of Final Hearing 03-08-2016
Next Hearing Date 03-08-2016
Assessment Year 2008-2009
Appeal Filed On 28-07-2015
Judgment Text
PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH JUDICIAL MEMBER I.T.A .NO.-488 2/DEL/2015 (ASSESSMENT YEAR- 2008-09) WELCO SANITATION PVT.LTD. C-398 DSIDC NARELA INDL. AREA NEW DELHI. PAN-AAACW5516G (APPELLANT) VS ITO WARD-18(3) ROORKEE. (RESPONDENT) APPELLANT BY SH. K.SAMPATH ADV. & SH. V.RAJA KUMAR ADV. RESPONDENT BY MS. ANIMA BAR A NWAL SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 02.06.2015 OF CIT(A)-22 NEW DELHI PERT AINING TO 2008-09 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER AT THE TIME OF HEARING THE LD. AR SUBMITTED THAT THE APPEAL OF THE ASSESSEE MAY BE ALLOWED IN VIEW OF THE FACT THA T THE OPPORTUNITY TO CROSS-EXAMINE THE PERSON WHOSE STATEMENT WAS RELIED UPON BY THE REVEN UE WAS NOT PROVIDED TO THE ASSESSEE. ON ACCOUNT OF THIS LAPSE IT WAS HIS SUBMISSION THA T THE ASSESSMENT BE QUASHED. THE SAID PRAYER OF THE ASSESSEE WAS OPPOSED BY THE LD. SR.DR . 2. THE RECORD SHOWS THAT THE ASSESSEE DECLARED AN I NCOME OF RS.2 10 550/- WHICH WAS PROCESSED UNDER SECTION 143(1) AND SUBSEQUENTLY BY ISSUANCE OF NOTICE UNDER SECTION 148 FOLLOWING SHOW CAUSE NOTICE IS SHOWN TO HAVE BEEN I SSUED TO THE ASSESSEE:- 'FROM THE VARIOUS SUBMISSIONS MADE BY YOU IT IS GA THERED THAT YOU HAVE MADE PURCHASES OF RS.11 91 717/- FROM M/S PASHUPATI ENTE RPRISES AND OF RS.16 89 879/-FROM M/S A.G. OVERSEAS DURING THE F.Y . 2007-08. IN THIS CONNECTION IT IS INFORMED THAT I HAVE INFORMATION T HAT NO SALES HAVE BEEN MADE BY THESE CONCERNS TO YOU AND THESE ARE ONLY ACCOMMO DATION ENTRIES. YOU ARE DATE OF HEARING 0 3 .08.2016 DATE OF PRONOUNCEMENT 3 0 .09.2016 I.T.A .NO.-4882/DEL/2015 PAGE 2 OF 4 REQUESTED TO EXPLAIN WHY THESE ENTRIES MAY NOT BE A DDED TO YOUR INCOME. YOUR REPLY IN THIS CONNECTION SHOULD BE RECEIVED IN THIS BY 24.01.2014. FURTHER IN YOUR LETTER DATED 1.10.2013 YOU HAVE RE QUESTED TO PROVIDE COPY OF STATEMENT ISSUED BY THE PARTNERS OF M/S PASHUPATI E NTERPRISES AND M/S A.G. OVERSEAS. IN THIS CONNECTION IT IS INFORMED THAT CO PY OF STATEMENT GIVEN BY SH. RAKESH GUPTA DATED 12.02.2013 IS AVAILABLE IN THIS OFFICE WITH THE UNDERSIGNED. IF YOU WANT TO EXAMINE THE STATEMENT YOU MAY DO SO ON THE DATE AS MENTIONED ABOVE I.E. 24.01.2014.' 3. THE ASSESSEE IN RESPONSE THERETO AS PER THE ASSE SSMENT ORDER SOUGHT A COPY OF THE STATEMENT RECORDED BY THE INVESTIGATION WING. IT WA S SUBMITTED ON BEHALF OF THE ASSESSEE AS PER LETTER DATED 30.01.2014 THAT SH. RAKESH GUPT A HAS ADMITTED THAT ONLY IN 5% OF THE CASES THE BUSINESS WAS GENUINE AND THE BILLS GIVEN TO HIS CLIENTS IN THE NAMES OF VARIOUS CONCERNS FLOATED BY HIM TO THE EXTENT OF 95% WERE O NLY ACCOMMODATION ENTRIES WHEREIN ONLY AFTER RECEIVING COMMISSION IN LIEU OF THIS ACC OMMODATION THE BILLS WERE PROVIDED. FOR THE SAME VAT WAS CHARGED ON ALL THE BILLS ISSUED T O THE CLIENTS AND IN THE CASE OF THE ASSESSEE ALSO SUCH VAT HAS BEEN DULY CHARGED. THE A SSESSING OFFICER IS FOUND TO HAVE REQUIRED THE ASSESSEE TO DEMONSTRATE WHETHER ANY GO ODS HAVE BEEN TRANSPORTED TO THE ASSESSEE BY WAY OF TRANSPORTATION BILLS ENTRIES IN STOCK REGISTERS (IF IT IS MAINTAINED) AND TO WHOM AND WHEN THESE GOODS ALLEGEDLY PURCHASED FROM THESE TWO PARTIES WERE SOLD AND HOW THE PAYMENT WAS RECEIVED AS THIS ENQUIRY WOULD SUPPORT THE ASSERTION OF THE ASSESSEE THAT THE ASSESSEES PURCHASE WAS GENUINE. HOWEVER SINCE THE ASSESSEE FAILED TO PRODUCE ANY SUPPORTING EVIDENCE THE PURCHASES FROM THE TWO PARTIES M/S PASHUPATI ENTERPRISES AND M/S AG OVERSEAS WERE HELD TO BE BOGUS RESULTING IN THE ADDITION OF RS.28 81 596/-. 4. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY THE ADDITION WAS CONFIRMED HOLDING THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVIDE ANY EVIDENCE BY WAY OF SUPPORTING EVIDENCES LIKE TRANSPORTATION BILLS ENTRIES IN STO CK REGISTER AND OTHER DETAILS TO ESTABLISH THAT THESE WERE GENUINE PURCHASES MADE FROM THE PARTIES. FURTHER RELYING ON THE FACT THAT AS PER NOTE SHEET DATED 03.01.2014 NOTICE ISSUED UNDER SEC TION 133 (6) TO M/S AG OVERSEAS AND I.T.A .NO.-4882/DEL/2015 PAGE 3 OF 4 M/S PASHUPATI ENTERPRISES HAD RETURNED UNSERVED AND THE ASSESSEE FAILED TO OFFER ANY EXPLANATION WHY THE NOTICE RETURNED UNSERVED. THE ADDITION WAS SUSTAINED. THE RELEVANT EXTRACT FROM THE IMPUGNED ORDER IS REPRODUCED HEREU NDER:- C) THE CRUCIAL ISSUE WHICH NEEDS TO BE CONSIDERED IS THAT SINCE THE MATTER RELATES TO ENTRY OPERATOR THE APPELLANT SHOULD HAV E PROVIDED CONCRETE EVIDENCE IN TERM OF CHALLANS OF TRANSPORTER OR OTHER DOCUMEN TS TO PROVE THE ACTUAL DELIVERY OF PURCHASED ITEMS. FURTHER DURING THE ASSESSMENT PROCEEDINGS ALSO DESPITE LARGE NUMBER OF HEARINGS THE APPELLANT COULD NOT E STABLISH THE GENUINENESS OF THESE TRANSACTIONS WITH THE TWO PARTIES. EVEN THE N OTICES SENT TO THESE PARTIES HAD BEEN RETURNED WHICH ALSO CORROBORATE THE OBSERV ATIONS OF THE AO THAT THE PURCHASES WERE NOT GENUINE. 5. BOTH THE PARTIES HAVE BEEN HEARD. CONSIDER ING THE PRAYER AND THE FACTS ON RECORD I AM OF THE VIEW THAT THE PRIMARY PRAYER OF THE ASSES SEE THAT SINCE THE OPPORTUNITY TO CROSS- EXAMINE WAS NOT PROVIDED THE ASSESSMENT BE QUASHED CANNOT BE ACCEPTED. HOWEVER CONSIDERING THE JUDICIAL PRECEDENT AS LAID DOWN IN CIT VS SUNIL AGGARWAL [2015] 379 ITR 0367 (DELHI) AND ITO VS M.PIRAI CHOODI [2011] 334 ITR 262 (SC) IT IS CONSIDERED APPROPRIATE TO SET ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESS ING OFFICER WITH A DIRECTION TO PROVIDE THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE SH. RAKESH GUPTA WHOSE STATEMENT HAS BEEN RELIED UPON BY HIM AND THEREAFTE R PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE OPPORTUNITY SO PROVIDED IT IS HOPED IS UTILIZED BY THE ASSESSEE IN GOOD FAITH BY FULLY PARTICIPATING IN THE PROCEEDINGS AS FAILI NG WHICH THE AO WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW ON THE BASI S OF MATERIAL AVAILABLE ON RECORD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* I.T.A .NO.-4882/DEL/2015 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI