ACIT, Faridabad v. Shri Sandeep Kapoor, Faridabad

ITA 754/DEL/2009 | 2004-2005
Pronouncement Date: 31-03-2011 | Result: Partly Allowed

Appeal Details

RSA Number 75420114 RSA 2009
Assessee PAN AFGPK7142A
Bench Delhi
Appeal Number ITA 754/DEL/2009
Duration Of Justice 2 year(s) 28 day(s)
Appellant ACIT, Faridabad
Respondent Shri Sandeep Kapoor, Faridabad
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted G
Tribunal Order Date 31-03-2011
Date Of Final Hearing 24-03-2011
Next Hearing Date 24-03-2011
Assessment Year 2004-2005
Appeal Filed On 02-03-2009
Judgment Text
ITA NO. 754/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI C.L. SETHI JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 754/DEL/2009 A.Y. : 2004-05 ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-I FARIDABAD VS. SH. SANDEEP KAPOOR H-57 JADUNATH ENCLAVE SECTOR-29 FARIDABAD (PAN/GIR NO. : AFGPK 7142A) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. ASHWANI TANEJA ADV. DEPARTMENT BY : SH. KISHORE B. (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 REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 15.1.2 009 PERTAINING TO ASSESSMENT YEAR 2004-05. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCO ME TAX (APPEALS) ERRED IN DELETING THE FOLLOWING ADDITIONS MADE BY THE ASSESSING OFFICER . I) ELECTRICITY EXPENSES - 25867/- II) MEMBERSHIP AND SUBSCRIPTION - 5167/- III) STAFF WELFARE EXPENSES - 63956/- IV) TRAVELLING EXPENSES - 216604/- ITA NO. 754/DEL/2009 2 V) VEHICLE MAINTENANCE EXPENSES - 90800/- VI) TELEPHONE EXPENSES - 86605/- VII) CONVEYANCE EXPENSES - 110762/- VIII) FESTIVAL EXPENSES - 421875/- IX) INCENTIVE - 35000/- X) LABOUR CHARGES - 170944/- XI) REPAIR AND MAINTENANCE EXPENSES 333960/- XII) DEPRECIATION - 5025/- 3. IN THIS CASE THE ASSESSEE IS ENGAGED IN THE BUS INESS OF ADVERTISING AND IS THE PROP. OF M/S RELIO QUICK ADV ERTISING AND MARKETING SERVICES. DURING THE YEAR UNDER CONSIDERA TION HE FILED RETURN OF INCOME AT ` 15 23 560/- ON 30.10.2004. DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) THE FINAL ASSESS ED INCOME WAS DETERMINED AT ` 32 12 790/- IN WHICH THE NUMBER OF AD DITIONS / DISALLOWANCES WERE EFFECTED BY THE ASSESSING OFFI CER . 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT ASSESSEES COUNSEL HAS SUBMITTE D VARIOUS ADDITIONAL EVIDENCES IN RESPECT OF FESTIVAL EXPENSE S INVOLVING DETAILS OF GIFTS AND ALSO ADDITIONAL EVIDENCE IN THE SHAPE OF BILLS OF REPAIR AND MAINTENANCE. ADDITIONAL EVIDENCES WERE ADMITTED BY T HE LD. COMMISSIONER OF INCOME TAX (APPEALS). 5. AS REGARDS THE ELECTRICITY EXPENSES ASSESSING O FFICER HELD THAT ON PERUSAL OF THE DETAILS FILED BY THE ASSESSEE IT WAS NOTICED THAT ASSESSEE HAD MADE PAYMENT OF ELECTRICITY BILLS AMOUN TING TO ` 25867/- ITA NO. 754/DEL/2009 3 BELONGING TO HIS RESIDENCE FROM THE ACCOUNT OF THE FIRM. THE EXPENDITURE BEING PERSONAL IN NATURE. HE DISALLALLO WED THE SAME. 6. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT ASSESSEE BECAUSE OF THE NATUR E OF BUSINESS WAS JUSTIFIED TO MAINTAIN OFFICE AND RESIDENCE TO COORDI NATE BUSINESS ACTIVITY AT ODD HOURS. THEREFORE HE HELD THAT THE EXPENSES FOR SUCH OFFICE CANNOT BE TERMED AS PERSONAL IN NATURE. HENCE HE DELETED THE DISALLOWANCE. 7. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTENT IONS WE NOTE THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED A REASONABLE ORDER WHICH DOES NOT NEED ANY INTERFERENCE ON OUR P ART. HENCE WE UPHOLD THE SAME. 8. THE ASSESSING OFFICER IN ASSESSMENT HAS MADE A DISALLOWANCE OF ` 5167/- BEING MEMBERSHIP OF M/S MAHINDRA HOLIDAY AN D RESORTS INDIA LTD. AS PERSONAL IN NATURE. 9. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE NATURE OF BUSINESS OF THE ASSESSEE JUSTIFIES THE NEED TO MAINTAIN THE CLUB MEMBERSHIP AS ABOVE TO BE USED AS AN INCENTIVE TOOL FOR ITS STAFF AND CANNOT BE TERMED A S PERSONAL EXPENSES. LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER NOT ED THAT SIMILAR DISALLOWANCE WAS MADE IN ASSESSMENT YEAR 2003-04 WHIC H WAS DELETED ON IDENTICAL FACTS. 10. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTEN TIONS WE FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS MADE A RE ASONABLE ORDER WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART. ITA NO. 754/DEL/2009 4 11. AS REGARDS THE DISALLOWANCE OUT OF STAFF WELFAR E EXPENSES. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS CLAI MED IN THE PROFIT AND LOSS ACCOUNT STAFF WELFARE EXPENSES OF ` 1 91 276/- AND ON VERIFICATION OF THEIR DETAILS FOUND THAT STAFF WELFARE EXPENSES HAVE BEEN INCURRED IN CASH ON TEA SNACKS LUNCH DINNER ETC. THE ASSESS ING OFFICER ALSO FOUND THAT THE APPELLANT HAS INCURRED ` 85 673/- UN DER THIS HEAD AT MUMBAI OFFICE WHERE ONLY 3 PERSONS ARE POSTED ON THE ROLL OF THE FIRM AS COMPARED TO ` 62 980/- INCURRED FOR FARIDABAD OFF ICE WHERE ABOUT 32 PERSONS EMPLOYED. THE ASSESSING OFFICER DISALLOWE D 50% OF THE EXPENSES OUT OF EXPENSES OF ` 85 673/- INCURRED AT MUMBAI OFFICE AND 1/5 TH OF THE BALANCE EXPENSES OF ` 1 05 603/- FOR NON-BU SINESS PURPOSE. THUS HE HAS WORKED OUT A TOTAL DISALLOWANCE OF ` 6 3 956/- (42 836 + 21 120) UNDER THIS HEAD. 12. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE DISALLOWANCE HOLDING THAT TH E ESTIMATE DISALLOWANCE PURELY ON PRESUMPTIVE AND ARBITRARY IN NATURE. 13. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTEN TIONS WE FIND THAT IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT T HE EXPENSES ARE BOGUS AND OR NOT BEING INCURRED. HE MADE THE DISALLOWANCE TOTALLY ON ADHOC BASIS. IT IS A SETTLED LAW THAT DISALLOWANCE MADE ON GUESS WORK AND SURMISES CANNOT BE SUSTAINED. HENCE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) IN THIS REGARD. HENCE WE UPHOLD THE SAME. 14. THE ASSESSING OFFICER FOUND THAT THE APPELLANT HAS INCURRED EXPENSES OF ` 2 43 733/- UNDER THE HEAD TOUR AND TR AVELLING. THE DETAILS OF THESE EXPENSES WERE EXAMINED BY HIM AND FOUND TO BE BOOKED ON SELF VOUCHERS. AS PER DETAILS OF THESE EXPENSES PRODUCED ITA NO. 754/DEL/2009 5 IN THE ASSESSMENT ORDER THE ASSESSING OFFICER COU LD NOT FOUND THE BUSINESS PURPOSES OF SUCH EXPENDITURE AND THEREFOR E DISALLOWED IT AND ADDED IT TO THE INCOME OF THE APPELLANT. IN A F EW CASES THE ASSESSING OFFICER HAS DISALLOWED EXPENSES INCURRED BY THE STAFF OF THE SISTER CONCERN OF THE APPELLANT ALSO. TOTAL DISALLO WANCE WAS ` 2166041/-. 15. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT ASSESSING OFFICER HAS NOT PR OPERLY APPRECIATED THE NATURE OF BUSINESS OF THE ASSESSEE. HE CONCLUD ED THAT KEEPING IN VIEW THE NATURE OF TOURS THE EXPENDITURE INCURRED ON THEM HAVE BEEN SUPPORTED BY THE BILLS OF THE ASSESSEE WHICH WAS PL ACED IN THE PAPER BOOK. THEREFORE HE HELD THAT THE EXPENSES WERE GEN UINE AND HENCE HE DISALLOWED THE DISALLOWANCE MADE BY THE ASSESSING OF FICER . 16. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTENT IONS WE HOLD THAT IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT T HE EXPENSES WERE BOGUS OR NOT BEING INCURRED. WE AGREE WITH THE CON TENTION OF THE ASSESSEE THAT THE ASSESSING OFFICER HAS NOT PROP ERLY APPRECIATED THE NATURE OF BUSINESS OF THE ASSESSEE. THE DISALLOWA NCE MADE DO NOT HAVE COGENT BASIS. UNDER THE CIRCUMSTANCES WE DO N OT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) IN THIS REGARD. ACCORDINGLY WE UPHOLD THE SAME. 17. AS REGARDS THE VEHICLE MAINTENANCE EXPENSES IS CONCERNED. THE ASSESSING OFFICER MADE DISALLOWANCE TO THE EXTENT O F 1/5 TH OUT OF CARS MAINTENANCE/ PETROL AND DEPRECIATION ON CARS EXPENSE S AT ` 4 53 998/- AMOUNTING TO ` 90 800/-. FOR THIS THE ASSESSING OFFI CER HELD THAT THE ASSESSEE HAD MAINTAINED NO LOG BOOK AND NO EVIDENCE HAS BEEN ITA NO. 754/DEL/2009 6 PRODUCED TO THE EFFECT THAT THE EXPENSES WERE INCUR RED WHOLLY FOR THE PURPOSE OF BUSINESS. 18. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE SUBMISSIONS AND HELD AS UND ER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER OF ASSESSMENT. I FIND THAT THE APPELLANT IS MAINTAINI NG ONE PERSONAL (LANCER) CAR AND TWO MARUTI VANS AND ONE QU ALIS VEHICLE. THE PHOTOCOPIES OF THE VANS USED FOR THE BUSINESS PURPOSES ARE PRODUCED AND EXAMINED. ALL THESE EVIDE NCES SHOW THAT THE BUSINESS OF THE APPELLANT BEING THAT OF ADVERTISING ALL THESE VANS ARE PURELY MEANT FOR BU SINESS AND THE PETROL EXPENSES INCURRED IN THEM ARE TOTALLY ALLOWABLE U/S 37(1) OF THE IT ACT. THEREFORE THER E CAN BE NO DISALLOWANCE OUT OF THESE EXPENSES. AS FAR AS THE DISALLOWANCE OUT OF DEPRECIATION TO THE EXTENT OF ` 1 31 490/- IS CONCERNED THE DEPRECIATION ON Q UALIS VAN AND MARUTI VANS AND SCOOTERS IS QUITE ALLOWABLE FULL Y AS THESE ARE USED FOR THE PURPOSES OF BUSINESS ONLY. 19. WE HAVE HEARD THE RIVAL CONTENTIONS. WE FIND TH AT THE AFORESAID DISALLOWANCE WAS MADE BY THE ASSESSING OFFICER WAS BASED PURELY ON SURMISES AND CONJECTURES. IN OUR CONSIDERED OPINI ON LD. COMMISSIONER OF INCOME TAX (APPEALS) IS QUITE CORREC T IN DELETING THE ADDITION IN THIS REGARD. ACCORDINGLY WE UPHOLD T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ITA NO. 754/DEL/2009 7 20. AS REGARDS THE TELEPHONE EXPENSES THE ASSESSIN G OFFICER MADE THE DISALLOWANCE OF ` 95 631/- BEING 1/5 TH OF ` 4 78 155/- AS THE SAID EXPENSES HAVE BEEN INCURRED ON MOBILE PHONE NOS. 98 10130987 AND 9821456145 AND THEREFORE DISALLOWED 1/5 TH FOR NON-BUSINESS USED. 21. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD AS UNDER:- IT IS FOUND THAT THE MAJOR EXPENDITURE IS ON OFFICE TELEPHONES AND STAFF PERSONS. AS FAR AS THE EXPENSES ON MOBILE PHON E NO. 9821456145 IS CONCERNED IT PERTAINS TO SH. SUKHBIR SINGH WHO IS A STAFF MEMBER AND THEREFORE THE ENTIRE EXPENDITURE IS ALLOWABLE. MOBILE PHONE NO. 9810130987 PERTAINS TO SH. SANDEEP KAPOOR WHO IS PROPRIETOR OF THE APPELLANT FIRM. ON THIS PHONE THE EXPENDITURE IS INCURRED AT ` 45129/-. IF DISALLOWANCE HAS TO BE MADE FOR PERSONAL USE OF THE MOBILES IT S HOULD BE MADE OUT OF THE MOBILES OF SHRI SANDEEP KAPOOR ONLY. THEREFORE KEEPING IN VIEW THESE FACTS 1/5 TH DISALLOWANCE MADE BY THE ASSESSING OFFICER IS CONFIRMED BUT OUT OF THE EXPE NDITURE OF MOBILE OF THE PROPRIETOR WHICH COMES TO ` 9026/- 1 /5 TH OF 45129/. THEREFORE THIS DISALLOWANCE OF ` 9026/- IS CONFIRM ED AND THE BALANCE OF ` 86 605/- (95631/- LESS 9026) IS ALLOW ED THE RELIEF. 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. UPON CAREFUL CONSIDERATION WE FIND THAT THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) HAS MADE A REASONABLE ORDER W HICH DOES NOT NEED ANY INTERFERENCE ON OUR PART. ACCORDINGLY W E UPHOLD THE SAME. 23. AS REGARDS THE CONVEYANCE EXPENSES. THE AO MA DE THE DISALLOWANCE OF ` 1 10 762/- BEING 50% OF THE EXPE NSES INCURRED AT MUMBAI OFFICE AND 1/5 TH OF THE BALANCE EXPENSES ON THE GROUND THAT ITA NO. 754/DEL/2009 8 THESE EXPENSES WERE NOT INCURRED WHOLLY FOR THE PUR POSE OF BUSINESS WAS FURNISHED BY THE ASSESSEE. 24 UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT ASSESSING OFFICER MADE THE DIS ALLOWANCE IN A VERY ROUTINE AND ADHOC MANNER. LD. COMMISSIONER OF INCOME TAX (APPEALS) GAVE A FINDING THAT HE HAS EXAMINED ALL TH E BILLS FURNISHED IN THE PAPER BOOK WHICH SHOW THAT THE PETTY AMOUNTS WE RE INCURRED FOR BUSINESS EXPENSES AND NO PERSONAL EXPENDITURE HAVE BEEN FOUND TO HAVE BEEN DEBITED TO CONVEYANCE EXPENSES. HE FOU ND THAT THE ASSESSEE HAS USED THE SERVICES OF THE STAFF OF ITS SISTER CONCERN ALSO. HE FOUND IN SUCH CASES IT WAS REASONABLE FOR THE A SSESSEE TO BEAR THE CONVEY EXPENDITURE. THEREFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION. 25. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTENT IONS WE HOLD THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS MADE A REASONABLE ORDER WHICH DOES NOT NEED ANY INTEREFERENCE ON OUR PART. ACCORDINGLY WE UPHOLD THE SAME. 26. THE ASSESSING OFFICER MADE THE DISALLOWANCE OF ` 4 21 875/- ON ACCOUNT OF FESTIVAL EXPENSES. THE ASSESSING OFFIC ER OBSERVED THAT ASSESSEE HAS FAILED PROVE THE GENUINENESS OF THE E XPENSES WHETHER THEY WERE INCURRED FOR THE PURPOSE OF BUSINESS AND TO FURNISH EVIDENCE OF GENUINENESS OF OUTSTANDING LIABILITY AS ON 31.3. 2004. FURTHER ASSESSING OFFICER FOUND THAT ASSESSEE HAS GIVEN T HE DETAILS IN THIS REGARD. 27. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE DISALLOWANCE BY REFERRING T O THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE IN THIS REGARD. ITA NO. 754/DEL/2009 9 28. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTENT IONS WE FIND THAT THERE IS NO MENTION IN THE APPELLATE ORDER AS TO WHE THER THE ASSESSING OFFICER HAS BEEN GRANTED THE OPPORTUNITY TO EXAMINE THE ADDITIONAL EVIDENCES. HENCE WE SET ASIDE THE ISSUE TO THE FI LES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH IN LIGHT OF TH E ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE. 29. AS REGARDS THE INCENTIVES OF ` 35 000/-. ASS ESSING OFFICER FOUND THAT THE ASSESSEE HAD DEBITED ` 35 000/- IN THE PRO FIT AND LOSS ACCOUNT. ASSESSEE WAS ASKED TO FURNISH THE DETAILS IN THIS R EGARD BUT NO DETAIL WAS SUBMITTED. 30. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT SUCH INCENTIVES AS EVIDENCE F ROM THE DETAILS THEY WERE WHOLLY AND EXCLUSIVELY INCURRED FOR BUSIN ESS PURPOSE. HE HAS ALSO ACCEPTED THE CONTENTION OF THE ASSESSEE TH AT DETAILS HAVE ALSO BEEN FILED WITH THE ASSESSING OFFICER . 31. UPON CAREFUL CONSIDERATION OF THE RIVAL CONTENT IONS WE NOTE THAT WHILE THE ASSESSING OFFICER HAS GIVEN THE FINDING THAT NO DETAILS HAVE BEEN GIVEN. IN OUR CONSIDERED OPINION INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REMITTED TO THE FILES OF THE ASSESS ING OFFICER. ACCORDINGLY THE MATTER STANDS REMITTED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH IN LIGHT OF T HE SUBMISSIONS SUBMITTED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 32. AS REGARDS THE LABOUR CHARGES ASSESSING OFFICE R FOUND THAT THAT ASSESSEE HAS INCURRED ` 1 70 944/- HE HELD THAT AS SESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THESE EXPENSES AND HEN CE HE MADE THE DISALLOWANCE. ITA NO. 754/DEL/2009 10 33. ON THIS ISSUE LD. COMMISSIONER OF INCOME TAX (APP EALS) ACCEPTED THE SUBMISSIONS OF THE ASSESSEE THAT THE DE TAILS WERE SUBMITTED BEFORE THE ASSESSING OFFICER ALSO. 34. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION. 35. AGAINST THIS ORDER THE ASSESSEE IS IN APPEAL BE FORE US. 36. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORDS. WE FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS GIVEN A FINDING THAT DETAILS OF SUCH EXPENDITURE SHOW THAT IT WAS INCURRED ON CARPENTERS LOADING UNLOADING OF MATERIALS ROAD SH OW KIOSK INSTALLATION AND MISCELLANEOUS WORK AT EXHIBITIONS. HE HAS FURTHE R FOUND THAT EXPENSES ARE SMALL/ PETTY AND NATURAL IN SUCH LINE OF BUSINESS. ASSESSING OFFICER HAS ALSO NOT DISPUTED THE FACT T HAT THE EXPENSES HAVE NOT BEEN INCURRED OR THE SAME ARE BOGUS. UNDER THE CIRCUMSTANCES WE UPHOLD THE ORDER OF THE LD. COMMIS SIONER OF INCOME TAX (APPEALS). 37. AS REGARDS THE REPAIR AND MAINTENANCE EXPENSES OF ` 3 33 960/- ASSESSING OFFICER FOUND THAT ASSESSEE HAS INCURRED ` 5 32 582/- UNDER THIS HEAD. FROM THE DETAILS HE FOUND THAT OUT OF THIS AMOUNT ` 4 56 806/- WERE INCURRED ONLY IN TWO MONTHS I.E. SEP TEMBER AND OCTOBER. ASSESSING OFFICER PROCEEDED TO GIVE A F INDING THAT ASSESSEE COULD NOT FILE ANY BILL NOR ESTABLISHED THE GENUIN ENESS OF THE EXPENDITURE TO THE TUNE OF ` 3 33 960/- AND HE DISA LLOWED THE SAME. 38. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED FRESH EVIDENCES. CONSIDERING THE FRESH EVIDENCES LD. COMMISSIONER OF INCOME TAX (APPEALS) GA VE A FINDING ITA NO. 754/DEL/2009 11 THAT AFTER DILIGENT VERIFICATION OF SUCH EXPENDITU RE HE FOUND THAT EXPENDITURE WAS GENUINE. 39. SINCE THE ADDITIONAL EVIDENCES HAVE NOT BEEN FI LED BEFORE THE ASSESSING OFFICER. IN OUR CONSIDERED OPINION THE M ATTER SHOULD GO BACK TO THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH IN VIEW OF THE ADDITIONAL EVIDENCES SUBMITTED BEFORE THE LD. CO MMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY THIS ISSUE STAN DS REMITTED TO THE FILES OF THE ASSESSING OFFICER TO CONSIDER THE SAME AFRESH. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPO RTUNITY OF BEING HEARD. 40. AS REGARDS THE DEPRECIATION OF ` 5025/- IS CON CERNED THE ASSESSING OFFICER FOUND THAT ASSESSEE HAS CLAIMED DEPRECIATION ON THE PURCHASE OF WASHING MACHINE AND FURNITURE. HE O BSERVED THAT ASSESSEE COULD NOT GAVE ANY PLAUSIBLE EXPLANATION/ JUSTIFICATION WHY THESE ITEMS WERE HANDEDOVER AT THE RESIDENCE ADDRESS OF THE ASSESSEE. IN VIEW OF THE ABOVE HE HELD THAT THES E ITEMS ARE USED FOR DOMESTIC USE AND ASSESSING OFFICER DISALLOWED THE D EPRECIATION ON THESE TWO ITEMS. 41. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOM E TAX (APPEALS) CONSIDERED THE ISSUE. HE GAVE A FINDING THAT FROM THE PARTICULARS AND VOUCHERS OF EXPENDITURE OF THESE T WO ITEMS IT IS FOUND THAT IT IS SOLELY MEANT FOR SMOOTH FUNCTIONING OF THE OFFICE AND THEY WERE INSTALLED IN THE OFFICE AND THEY WERE EMISES. THUS HE DELETED THE DISALLOWANCE. 42. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. UPON CAREFUL CONSIDERATION WE HOLD THAT THE LD. CO MMISSIONER OF ITA NO. 754/DEL/2009 12 INCOME TAX (APPEALS) HAS PASSED A REASONABLE ORDER WHICH DOES NOT NEED ANY INTERFERENCE. ACCORDINGLY WE UPHOLD THE SAME. 43. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31/03/2011. SD/- SD/- [ [[ [C.L. SETHI C.L. SETHI C.L. SETHI C.L. SETHI] ]] ] [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 31/03/2011 SRB 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 DEPUTY REGISTRAR ITAT DELHI BENCHES