Income Tax Appellate Tribunal - Delhi
Ito, New Delhi vs Sh. Pradeep Kumar Sharma, Delhi on 11 October, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "F", NEW DELHI
BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER
AND
MS. SUCHITRA KAMBLE, JUDICIAL MEMBER
ITA No.461/Del/2014
Assessment Year : 2009-10
ITO, Ward- 34(2), Pradeep Kumar Sharma,
New Delhi. 1/11454- A, Gali No.3,
Vs. Subhash Park Extn.
Naveen Shahdara, Delhi.
PAN : AUVPS5582J
(Appellant) (Respondent)
Department by : Shri Atiq Ahmad, Sr. DR
Assessee by : None
Date of hearing : 10-10-2017
Date of pronouncement : 11-10-2017
ORDER
PER R. K. PANDA, AM :
This appeal filed by the Revenue is directed against the order dated 15.11.2013 of CIT(A)-XXVII, New Delhi relating to assessment year 2009-10.
2. This appeal was fixed for hearing on a number of times and it was observed from the order-sheet entries that despite service of notice through RPAD and through DR nobody is appearing from the side of the assessee. Even the last notice issued by the Registry was returned unserved by the Postal Authorities with remark as "No such person in such address". It was also seen from the order of the ld. CIT(A) that there was non-appearance from the side of the assessee for which ld. CIT(A) has passed an ex-parte order. Even during the 2 ITA No.461/Del/2014 appellate proceedings, the Postal Authorities returned the notice with the remark "no such person at the address". Before the Assessing Officer also there was no compliance from the side of the assessee. Under these circumstances, we proceed to decide the appeal on the basis of material available on record and after hearing the ld. DR.
3. Facts of the case, in brief, are that the assessee is an individual and engaged in trading business of Cards under the name and style of his proprietorship concern, M/s Shiv Shakti Cards. The assessee filed his return of income on 30.09.2009 declaring total income of Rs.1,96,420/-. The Assessing Officer completed the assessment u/s 143(3) by making the following additions :-
(i) On account of Unconfirmed Sundry Creditors Rs.59,94,712/-
treating these bogus as it is highly improbable that a business is being run having this much high creditor and debtor.
(ii) 30% of expenses debited in Profit & Loss A/c as no Rs.14,26,817/-
books of account has been produced.
(iii) Deduction claimed U/c VIA due to non production of Rs. 44,178/-
requisite papers
Total Rs.76,62,127/-
4. In appeal, the ld. CIT(A) in the ex-parte order passed by him deleted an amount of Rs.53,94,755/- out of Rs.59,94,172/- added by the Assessing Officer on the ground that the unconfirmed sundry creditors cannot be considered as unexplained income and he sustained only 10% of the sundry creditors. Similarly out of disallowance of Rs.14,26,817/- made by the Assessing Officer being 30% of the expenses debited in the Profit & Loss Account the ld CIT(A) 3 ITA No.461/Del/2014 sustained the disallowance @ 5% of the expenses amounting to Rs.2,37,803/- and gave relief of Rs.11,89,014/-. He, however, sustained the disallowance of Rs.44,178/- made by the Assessing Officer for non-filing of necessary evidence.
5. Aggrieved with such order of the CIT(A), the Revenue is in appeal before the Tribunal by raising the following grounds :-
"1. "On the facts and in the circumstances of the case that the order of the Ld. CIT (Appeal) is bad in law and not in consonance with facts of the case".
2. On the facts and in the circumstances of the case that the Ld.CIT (Appeal) erred in deleting the addition of Rs.53,94,755/- on account of unconfirmed sundry creditors.
3. On the facts and in the circumstances of the case, the Ld. CIT(Appeal) had erred in deleting the addition of Rs. 11,89,014/- on account of expenses debited in the Profit & Loss account.
4. On the facts and in the circumstances of the case that the Ld. CIT(Appeal) erred in passing the order without affording opportunity to the AO.
5. On the facts and in the circumstances of the case that the Ld. CIT(Appeal) passed the order without considering the fact that during the course of assessment proceedings, the assessee failed to furnish justification/confirmation about the sundry creditors despite having been afforded adequate opportunities.
6. On the facts and in the circumstances of the case that the Ld.CIT(A) had erred in considering that the appellant had not produced any evidence during the assessment proceedings as well as in the appellant proceedings about the expenses debited in the P&L account.
7. On the facts and in the circumstances of the case that the Ld.CIT(A) had erred in restricting disallowance of expense to 5% in place of 30% without considering nature of expenses.
8. The appellant craves to add, allow or amend any or all the grounds of appeal before or during the course of hearing of the appeal."
6. We have heard the arguments made by the ld. DR and perused the material available on record. It is an admitted fact that due to non-furnishing of any supporting evidence regarding sundry creditors and for various expenses, the Assessing Officer had made the additions, the details of which are already given in the preceding paragraphs. However, despite non-furnishing of any material, the ld. CIT(A) granted substantial relief to the assessee, which in our opinion is not proper under the facts and circumstances of the case. When the 4 ITA No.461/Del/2014 assessee is unable to explain the sundry creditors by filing the requisite details relief cannot be granted on the basis of some percentage. Similarly, in absence of filing of any detail/evidence relief should not have been granted especially when the assessee is non-cooperative in nature by not furnishing the requisite details either before the Assessing Officer or before the CIT(A). Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the CIT(A) with a direction to re- adjudicate the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds raised by the Revenue are accordingly allowed for statistical purposes.
7. In the result, the appeal filed by the Revenue is allowed for statistical purposes.
Order pronounced in the open Court on this 11th day of October, 2017.
Sd/- Sd/-
(SUCHITRA KAMBLE) (R. K. PANDA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 11-10-2017.
Sujeet
Copy of order to: -
1) The Appellant
2) The Respondent
3) The CIT
4) The CIT(A)
5) The DR, I.T.A.T., New Delhi
By Order
//True Copy//
Assistant Registrar
ITAT, New Delhi