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Income Tax Appellate Tribunal - Delhi

Ito, Faridabad vs Smt. Santosh Raghav,, Faridabad on 25 April, 2017

       IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCH "G", NEW DELHI
     BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER
                         AND
        SMT. BEENA A. PILLAI, JUDICIAL MEMBER

                   ITA No. 3442/Del/2010
                 (Assessment Year: 2007-08)

     ITO A                    Santosh Raghav,
     Ward-II(1),              Prop, M/s Akaar Fabrications
     New CGO Complex,     Vs. & Engineering
     B-Block, NH-IV           Plot No. 326, Sector - 24
     Faridbada.               Faridabad.
                              GIR/PAN: ACEPR6793H
     A   (Appellant)                   (Respondent)

     Appellant by  :    Sh. N. K. Bansal, Sr. DR
     Respondent by :    Sh. J. P. Gulati, Adv.

     Date of hearing            :      23.03.2017
     Date of pronouncement      :      25.04.2017

                        ORDER

PER BEENA A. PILLAI, J.M :

1. The present appeal has been filed by revenue against order dated 12.05.2010 asked by Ld. CIT(A), Faridabad, for assessment year 2007-08 on following grounds of appeal:

1. "On the facts and in the circumstances of the case, the learned CIT(A) has erred on facts and in law in entertaining the additional evidence as per Rule 46A of the Income Tax Rules, 1962 even though despite eight opportunities provided during the assessment proceedings to produce the evidence in support of its claim and in spite of this, the assessee had failed to do so except filing one copy of assessee's capital account, ledger accounts of electricity & wages expenses and confirmation from two creditors, one of them 2 ITA No. 3442/Del/2010 (AY 2007-08) hearing only an old opening balance of Rs. 1935/-

2. " On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in cancelling the assessment made u/s 144 being bad in law by solely relying on the issue of service of show cause letter dated 17-12-2009 in spite of the fact that the notice u/s 142(1) was validly served in terms of section 282 of the Act and Civil Procedure Code. Since, the assessee was time and again deliberatively avoiding service show cause letter dated 17.12.2009 and notice u/s 142(1) and the case getting time barred on 31.12.2009, therefore the AO was left with no option get service through affixture.

3. " On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in deleting the addition of Rs. 1,04,19,891/-

made by the Assessing Officer on account of bogus and non existent liability especially when the assessee had failed and non e-existent liability especially when the assessee had failed to discharge her onus to prove the identity of the creditors and the genuineness of transactions despite granting eight opportunities to her and brushing aside all the clear facts and term the inspectors report as half hearted and invalid purely on subjective reasons."

4. On the facts and in the circumstances of the case, the Ld.CIT(A) has erred on facts and in law in deleting the addition of Rs. 12,27,007'/- out of total addition of Rs. 12,49,8357- made by the Assessing Officer on account of disallowance of expenses even though the assessee had failed to furnish any details or books of accounts and vouchers during the course of assessment proceedings despite eight opportunities and without giving any reason except that the Assessing Officer could have obtained further evidence and in entertaining the additional 3 ITA No. 3442/Del/2010 (AY 2007-08) evidence by rejecting Assessing Officer's prayer for rejection of assessee's application and giving only 11 days to the Assessing Officer to examine each of the 396 pages containing details of creditors and expense without allowing to make any enquiries but merely directing to examine the evidence."

5. That the appellant craved for the permission to add, deleted or amend the grounds of appeal before or at the time of hearing of appeal.

2. Brief facts of the case are as under:

Assessee is a proprietor of M/s. Akbar Fabrications and Engineers. It filed its return of income on 31.10.2007 declaring total income of Rs.1,69,840/-. The same was processed under section 143(1) and was selected for scrutiny. Notices under section 143(2) and 142(1) along with questionnaire were issued to assessee. It has been recorded by Ld. AO that first notice under section 143(2) was issued on 19.09.2008 fixing the date of hearing on 29.09.2008. On 29.09.2008 assessee's Chartered Accountant submitted power of attorney alongwith a letter requesting for adjournment.

Later on notice under section 142 (1) along with detailed questionnaire was issued on 21.01.2009 fixing date of hearing on 02.02.2009. On 02.02.2009 Chartered Accountant of assessee attended hearing and requested for an adjournment. Accordingly, case was adjourned to 18.02.2009. Ld. AO records that no compliance was made on 18.02.2009. Fresh notice was again issued fixing case on 16.03.2009 which was again not attended by assessee or her representatives. Again 4 ITA No. 3442/Del/2010 (AY 2007-08) notice under section 142(1) was issued on 15.07.2009 fixing date of hearing on 28.07.2009. On 28.07.2009 accountant of assessee was present alongwith part information and next date was granted as 10.08.2009 for further compliance. Ld. AO record that none appeared on 10.08.2009 and no application for an adjournment was also filed. Once again Ld. AO issued notice under section 142(1) for hearing on 29.12.2009 alongwith show cause letter. On 21.12.2009 as none appeared, Ld. AO issued order to fix notice dated 17.12.2009 by affixture and date of hearing was fixed on 29.12.2009. As none appeared on 29.12.2009 and no request for adjournment was received, Ld. AO closed assessment by passing order under section 144 of the Act. Ld. AO made addition of Rs.1,04,19,891/- being sundry creditors appearing as on 31.03.2007, being bogus and non-existent and Rs.12,49,835/- being 50% of entire business expense as high and arbitrary not supported by sufficient vouchers.

3. Aggrieved by the assessment order, assessee preferred an appeal before Ld. CIT(A).

4. Before Ld. CIT(A) assessee filed application for admission of additional evidences under rule 46A (1)(b)(c)/(d) of the Act. The said application was forwarded by Ld. CIT(A) to assessing officer for his comments. Ld. AO filed his comments vide report dated 31.03.2010 and raised objection to application under section 46A(1) for admission of fresh evidence. Ld. CIT(A) after calling for remand report and considering same recorded his observations to admit additional evidences. He 5 ITA No. 3442/Del/2010 (AY 2007-08) also deleted addition on basis of documents admitted by him as additional evidence.

5. Aggrieved by order passed by Ld. CIT(A) revenue is in appeal before us now.

6. This ground has been raised by revenue against additional evidence being admitted by Ld. CIT(A) as well as for annulling the assessment order. Ld. AR submits that assessee had been given proper opportunity by assessing officer. He submitted that on every occasion representatives of assessee has been taking adjournments on one pretext or other and therefore, assessee should not be allowed to file any documents before Ld. CIT(A). He submitted that assessee wold have submitted these documents, had it to be in existence during time of assessment proceedings.

7. Ld. DR submitted that assessee's case do not fit into any of subclasses of rule 46A for the purposes of admitting additional evidences. He placed his reliance upon observations of assessing officer in the remand report filed by Ld. AO. Before Ld. CIT(A). Ld. DR submitted that all the notices issued was at the same address and therefore, assessee cannot take pretext of non-receipt of certain notices whereas others have been acknowledged to have received. He placed heavy reliance upon order passed by Ld. AO and observations made by assessing officer in remand report. He has objected to assessment being annulled by Ld. CIT(A).

(AY 2007-08)

8. On the contrary, Ld. AR submitted that out of the 8 notices issued assessee has received only 4 for which compliances have been made on respective dates. He submitted that last notices dated 17.12.2009 has not been received by assessee. He submitted that intimation of notice by way of a fixture is also fabricated, as assessing officer had served the final assessment order passed under section 144 of the Act through an inspector at factory address of assessee which was very much in knowledge of Ld. AO.

9. We have produced submissions advanced by both parties in the light of records placed before us.

10. There is no doubt that assessee has been granted various opportunities to file relevant documents as per ordersheet entries. However, it also appears from record placed before us that assessing officer has not been able to serve notice dated 17.12.2009 intimating date of hearing to assessee. Assessing officer had no choice but to complete the assessment within period of limitation without granting any further opportunity to assessee. On perusal of order passed by Ld. CIT(A) it is observed that additional evidence filed before him has been admitted as these were very much relevant for deciding additions made by assessing officer.

11. We, therefore, do not find any infirmity in the findings of Ld. CIT(A) for admitting additional evidence filed before him.

12. Accordingly ground No.1 raised by revenue stands dismissed.

(AY 2007-08)

13. Ground no. 2 is raised against annulment of assessment order. It has been submitted by Ld. DR that additions made by him are because of non-production of materials/evidences called for at the time of assessment proceedings. We agree with contentions of Ld. DR that merely because revenue could not establish service of notice dated 17.12.2009, assessment order passed cannot be held to be bad in law. We, therefore, allow ground No. 2 raised by revenue.

14. This ground has been raised by revenue against addition of Rs.1,02,13,212/- being deleted without making proper enquiries. Ld. AR submitted that assessee has not established identity, creditworthiness and genuineness of transactions with sundry creditors. He submitted that assessing officer had made random enquiries from list of creditors that was filed before him which according to Ld. AO was bogus. Ld. DR submitted that first appellate authority, instead of verifying details of all creditors restricted enquiries only in respect of 5 parties, which were randomly considered by the assessing officer. The observations made by Ld. CIT(A) to arrive at the conclusion that assessing officer has not doubted the remaining creditors is not acceptable.

15. On the contrary, Ld. AR submitted that these sundry creditors were old and were existing as on 31.03.2007. He submitted that some of these were trade creditors and payments have been made through cheque. He thus, prayed 8 ITA No. 3442/Del/2010 (AY 2007-08) for deleting addition made by assessing officer as entire details were filed before Ld. CIT(A), which has stood verified by him.

16. We have perversed submissions advanced by both sides in the light of records placed before us.

17. On perusal of paper book filed and written submissions before Ld. CIT(A) it is observed that assessee has filed details of all creditors and confirmations before Ld. CIT(A). However, on perusal of order passed by Ld. CIT(A) it is observed that he has not verified each and every creditor and has simply restricted to a few creditors. Further on perusal of remand report filed by the Ld. AO it is observed that there are certain parties who has made payments through cheque to assessee.

18. As Ld. CIT(A) has not exercised his coterminous powers with that of assessing officer to investigate upon all creditors, we are, therefore, inclined to set aside this issue to file of Ld. AO for de novo verification. Ld. AO shall investigate upon all credit entries appearing in the books of assessee made in cash. Assessee shall first submit details of these creditors to discharge onus of proving identity and creditworthiness and most importantly genuineness of transactions. Ld. AO thereafter shall investigate upon to find out veracity of submissions/evidences produced by assessee as per law. Assessing officer shall ignore the trade creditors as well as creditors who have made payments by way of check from purview of its enquiry. Needless to say that assessee shall be granted proper opportunity of hearing as per law.

(AY 2007-08) Accordingly this ground raised by revenue stands allowed for statistical purposes.

19. This ground has been raised against the addition amounting to Rs. 12, 27, 007/- being expenses incurred by assessee.

20. Ld. DR submitted that assessee had not produced books of account before authorities below. He therefore, submitted that as expenses were not supported by any documents and so assessing officer was right in making an ad hoc disallowance of 50% of total expenses. He placed reliance upon the order of assessing officer.

21. On contrary Ld. AR submitted that details of expenses were filed before Ld. CIT(A) which has been verified by assessing officer while remand proceedings. He submitted that most of expenses have not been contradicted by assessing officer to be not genuine expenses. He submitted that Ld. CIT(A) on verification of these expenses was satisfied and has allowed expenses to an extent of Rs. 12,27,007/-. He placed reliance upon order passed by Ld. CIT(A).

22. We have perused submissions advanced by both sides in the light of records placed before us.

23. It is observed that Ld. CIT(A) has examined expenses incurred by assessee from documents/books of account/ledger books are tendered before him. Most of payments were in the nature of salaries paid to employee's salary paid to husband of assessee, security personnel, 10 ITA No. 3442/Del/2010 (AY 2007-08) telephone bills electricity bills travel bills etc., which were supported by corresponding evidences. Ld. CIT(A) has verified the expenses vis-à-vis the vouchers & bills with ledger accounts. It is also noted by Ld. CIT(A) that the accounts are maintained by assessee and are audited. Ld. CIT(A) observed as under :

"In view of the above stated factual position discernible from the copies of the ledger account coupled with the fact that the accounts of the assessee are audited, in my firm opinion, the ITO has not examined the issue with any seriousness despite when he was directed to examined the fresh evidence, and simply stated that disallowance made at 50% of the entire expenses are justified. It is well settled that no addition can be made on ad- hoc basis and the AO is required to apply his judicial mind and exercise discretion in a rational and judicial manner. To my mind, the Ld. AR has made the analysis of each expenses in a most appropriate and judicious manner on the basis of evidence placed in the fresh evidence and in case the AO wanted some further evidence, he was not debarred from undertaking this exercise, but the AO choose to restrict himself on the addition already made at Rs.12,49,835/- which has no legs to stand. The Ld, AR on his own has offered disallowance of Rs.22,828/- out of insurance expenses, vehicle running expenses and car depreciation i.e. at Rs.l,826+Rs.l2,600+Rs.8402/-, I, therefore, upheld disallowance at Rs.22,828/-, and delete the balance amount of Rs.12,27,007/- out of total disallowance of Rs.12,49,835/-. Ground No.3 is partly allowed.

We are, therefore, in conformity with findings of Ld. CIT(A).

(AY 2007-08) Accordingly this ground raised by revenue stands dismissed.

In the result appeal filed by the revenue stands partly allowed Order pronounced in the open court on 25th April, 2017.

     Sd/-                                  Sd/-
 (R. K.PANDA)                        (BEENA A. PILLAI)
ACCOUNTANT MEMBER                    JUDICIAL MEMBER
Date: 25.04.2017
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