Business Systems India Pvt. Ltd., New Delhi v. ITO, New Delhi

I.T.A. NO. 5274/DEL/2010 1/1 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH A NEW DELHI BENCH A NEW DELHI BENCH A NEW DELHI BENCH A BEFORE SHRI R. P. TOLANI JUDICIAL MEMBER AND SHRI A K GARODIA ACCOUTANT MEMBER ITA NO. 5274 /DEL/2010 (ASSESSMENT YEAR 2007-08) BUSINESS SYSTEMS INDIA PVT. LTD. VS. I.T.O. WARD 3(1) 133/7 QUTAB ENCLAVAE PHASE II NEW DELHI KATWARIA SARAI NEW DELHI (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AABCB5590N APPELLANT BY: SHRI P N SHASHTRI CA RESPONDENT BY: MRS. ANUSHA KHUARANA SR. DR ORDER ORDER ORDER ORDER PER A. K. GARODIA AM: PER A. K. GARODIA AM: PER A. K. GARODIA AM: PER A. K. GARODIA AM: 1. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) VI NEW DELHI DATED 17.09.2010 FOR THE ASSES SMENT YEAR 2007-08. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1) THE LD .CIT(A) ERRED IN NOT ADMITTING ADDITIONA L EVIDENCE OF STOCK RECORDS ETC. DESPITE MAKING A PRAYER FOR T HEIR ADMISSION. 2) THE LD .CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. A.O. REJECTING THE BOOKS OF ACCOUNTS AND APPLIED PROVISIONS OF SECTION 145 OF THE I. T. ACT 1961 ON FLIMSY REASONS. 3) THE LD .CIT(A) ERRED IN CONFIRMING THE ACTION OF THE LD. A.O. PASSING A BEST JUDGEMENT ORDER WITHOUT AFFORDI NG A PROPER OPPORTUNITY PROPER EXAMINATION OF BOOKS AND ISSUE OF A NOTICE U/S 142(1) OF THE I. T. ACT 1961 . 4) THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. APPLYING A HIGH PITCHED NET PROFIT RATE OF 8% ON SA LES REVENUE AND 15% OF REPAIRS AND MAINTENANCE PURELY O N SURMISES AND CONJECTURES AND WITHOUT BRINGING ON RECORD ANY COMPARABLE RESULTS. 5) THE TAX DEMANDED AND THE INTERESTS CHARGED U/S 2 34B AND 234A ARE WRONG. 6) THAT THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJUDICE TO EACH OTHER. I.T.A. NO. 5274/DEL/2010 2/2 2. IT WAS SUBMITTED BY THE LD. A.R. THAT THE ASSESS EE COULD NOT PRODUCE STOCK RECORD BEFORE THE A.O. AND BEFORE THE LD. CIT(A) THE ASSESSEE WANTED TO PRODUCE THE SAME BY WAY OF ADDIT IONAL EVIDENCE BUT THE SAME WAS NOT ALLOWED BY LD. CIT(A). IT IS SUBMITTED THAT IN THE INTEREST OF JUSTICE SUCH ADDITIONAL EVIDENCES SHOULD BE ADMITTED AND THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. AS AGAINST THIS IT IS SUBMITTED B Y THE LD. D.R. THAT IT HAS BEEN NOTED BY THE LD. CIT(A) ON PAGE 8 OF HIS O RDER THAT THE STOCK REGISTER WAS NOT PRODUCED BEFORE HIM. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT IT IS OBSERVED BY THE LD. CIT( A) ON PAGE 8 OF HIS ORDER THAT PHOTOCOPY OF STOCK REGISTER 1 2 & 3 WER E FILED IN THE PAPER BOOK BUT THESE PHOTOCOPIES ARE NOT SUPPORTED BY ORIGINAL DOCUMENTS. WE FAIL TO UNDERSTAND THE BASIS OF THIS OBSERVATION OF LD. CIT(A) THAT PHOTOCOPIES ARE NOT SUPPORTED BY OR IGINAL DOCUMENTS. WE ALSO FIND THAT IT WAS THE SUBMISSION OF THE ASSESSEE BEFORE THE LD. CIT(A) THAT STOCK REGISTERS ARE BEI NG PRODUCED FOR INSPECTION. BEFORE US IT WAS SUBMITTED BY THE LD. A.R. THAT PHOTOCOPY OF STOCK REGISTER WERE SUBMITTED BEFORE L D. CIT(A) ALONG WITH WRITTEN STATEMENT AND THE ORIGINALS WERE CARRI ED THERE FOR PRODUCING BUT THE SAME WERE NOT ALLOWED BY THE LD. CIT(A). IT IS ALSO SUBMITTED THAT THE ASSESSEE IS IN A POSITION T O PRODUCE ORIGINAL STOCK RECORDS IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE. CONSIDERING THESE FACTS AND IN THE INTEREST OF JUST ICE WE FEEL THAT ONE MORE OPPORTUNITY SHOULD BE ALLOWED TO THE ASSES SEE TO PRODUCE STOCK REGISTER AND HENCE WE SET ASIDE THE ORDER OF LD. CIT(A) AND ALL THE ISSUES ARE RESTORED BACK TO THE FILE OF THE A.O . FOR A FRESH DECISION. THE ASSESSEE HAS TO PRODUCE STOCK REGIST ER ETC. BEFORE THE A.O. AND THEREAFTER THE A.O. SHALL PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEA RD TO THE I.T.A. NO. 5274/DEL/2010 3/3 ASSESSEE. IN VIEW OF THE ABOVE DECISION WITH REGA RD TO GROUNDS NO.1 OF THE ASSESSEES APPEAL WE FEEL THAT NO ADJU DICATION IS CALLED FOR ON THE MERITS OF ADDITION MADE BY THE A.O. BECA USE WE HAVE ALREADY RESTORED BACK THE MATTER TO THE FILE OF THE A.O. FOR A FRESH DECISION. THE ISSUE REGARDING INTEREST U/S 234A AN D 234B IS CONSEQUENTIAL. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES IN TERMS INDICATED ABOVE. 5. PRONOUNCED IN THE OPEN COURT ON 11 TH FEB. 2011. SD/- SD.//- (R. P. TOLANI) (A K GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:11 TH FEB. 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI