Vikas Chawla,, v. ITO, Ward-27(4),,

ITA 541/DEL/2005 | 2001-2002
Pronouncement Date: 19-02-2010 | Result: Allowed

Appeal Details

RSA Number 54120114 RSA 2005
Assessee PAN AAHPC1212F
Bench Delhi
Appeal Number ITA 541/DEL/2005
Duration Of Justice 5 year(s) 15 day(s)
Appellant Vikas Chawla,,
Respondent ITO, Ward-27(4),,
Appeal Type Income Tax Appeal
Pronouncement Date 19-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 19-02-2010
Date Of Final Hearing 10-02-2010
Next Hearing Date 10-02-2010
Assessment Year 2001-2002
Appeal Filed On 04-02-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA VICE PRESIDENT AND SHRI I.P. BANSAL JUDICIAL MEMBER ITA NO.541/DEL/2005 ASSESSMENT YEAR : 2001-02 VIKAS CHAWLA C-5A/43 JANAKPURI NEW DELHI. PAN : AAHPC1212F VS. ITO WARD 27 (4) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AJAY WADHWA CA REVENUE BY : SHRI KISHORE B. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS D IRECTED AGAINST THE ORDER OF THE CIT (A) DATED 2 ND NOVEMBER 2004 FOR ASSESSMENT YEAR 2001-02. GROUND S OF APPEAL READ AS UNDER:- 1. THE ORDER OF THE LD. CIT (A) IS BAD IN LAW AND ON FACTS. 2. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY RE JECTING THE ADDITIONAL EVIDENCE WHICH WAS COLLECTED AND PRO DUCED DURING THE HEARING OF THE APPEAL. 3. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS B Y NOT CONSIDERING AND IGNORING THE REPRESENTATIONS MADE B Y APPELLANT AND FRAMING HIS ORDER ON MERE SURMISES AN D CONJECTURES WHICH IS AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 4. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY NOT ADMITTING THE EVIDENCES/CONFIRMATION FURNISHED BY T HE APPELLANT AT THE STAGE OF HEARING OF APPEAL WHICH W AS NOT AVAILABLE/FURNISHED AT THE TIME OF ASSESSMENT PROCE EDINGS. 5. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY CONFIRMING THE ADDITION MADE BY THE AO OF RS.5 38 7 32/- ON ITA NO.541/DEL/2005 2 ACCOUNT OF PAYMENT MADE TO VARIOUS CAR DEALERS ON B EHALF OF HIS CUSTOMERS FOR WHICH CONFIRMATIONS WERE ALSO FUR NISHED BEFORE THE LD. CIT (A) IN ORDER TO ESTABLISH THE GE NUINENESS OF THE EXPENDITURE. 6. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS B Y SUSTAINING THE ADDITION MADE BY THE AO OF RS.12 00 862/- WHIC H HAS AMOUNTED TO DOUBLE TAXATION AS THE REIMBURSEMENT OF THIS PAYMENTS HAVE ALREADY BEEN ACCOUNTED FOR AS INCOME UNDER THE HEAD COMMISSION RECEIVED. 7. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS B Y UPHOLDING THE AOS ORDER REGARDING ADDITION OF RS.5 65 783/- ON ACCOUNT OF COMMISSION PAID TO VARIOUS PARTIES. 8 (A) THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY CONFIRMING THE DISALLOWANCE OF RS.20 20 639/- ON AC COUNT OF ASSESSEE FAILING TO FURNISH THE REQUISITE DETAIL AT THE ASSESSMENT STAGE WHEREAS THE SAID DETAILS ARE A PAR T OF THE ASSESSMENT RECORDS. (B) WITHOUT PREJUDICE THE LD. CIT (A) HAS ERRED I N REFUSING TO ADMIT THE ADDITIONAL EVIDENCE UNDER RULE 46A IN THE FORM OF CONFIRMATIONS FILED IN RESPECT OF THE COMMISSION PA YMENTS TOTALING RS.20 20 639 IN SPITE OF THEIR BEING COMPE LLING CIRCUMSTANCES. 9. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS B Y CONFIRMING THE ADDITION MADE OF RS.2 05 750/- WHICH REPRESENTS THE AMOUNT THAT THE APPELLANT RECEIVED THROUGH THE SALE PROCEED OF CAR IN INSTALLMENTS OVER A PERIOD OF LESS THAN T WO MONTHS. 10. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY RESTRICTING THE RENT PAID BY THE APPELLANT TO RS.15 4 000 OUT OF TOTAL EXPENDITURE OF RS.4 04 000/- ON THE SAID AMOU NT ON MERE SURMISES AND CONJECTURES WHICH IS UNJUST AND UNLAWF UL. 11. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS BY UPHOLDING THE DISALLOWANCE OF RS.16 178 BEING 1/6 TH OUT OF VEHICLE RUNNING EXPENSES OF RS.97 070/-. 12. THE APPELLANT PRAYS THAT HE MAY KINDLY BE ALLO WED TO ALTER AMEND MODIFY AND/OR ADD ANY OF THE GROUNDS AT ANY TIME HEREINAFTER. ITA NO.541/DEL/2005 3 2. THE ASSESSEE IN THE PRESENT CASE IS CARRYING ON THE BUSINESS OF CAR FINANCING AS DIRECT SALES ASSOCIATE (DSA) OF ICICI BANK LTD. NEW DELHI. THE ASSESSEE RECEIVED CERTAIN COMMISSION ON PROMOTING T HE BANKS BUSINESS OF EXTENDING LOANS TO THE CUSTOMERS FOR PURCHASE OF CA RS. IT IS THE CLAIM OF THE ASSESSEE THAT DURING HIS BUSINESS HE HAS PAID COMMI SSION TO HIS SUB-AGENTS AND HIS COMMISSION FOR THE YEAR UNDER CONSIDERATION HAS INCREASED TO RS.1 07 59 281/- AS COMPARED TO IMMEDIATE PRECEDING YEAR OF RS.17 17 178/-. THE AO OBSERVED THAT THE PROFIT OF THE ASSESSEE REM AINED MORE OR LESS STATIC AS FOR THE YEAR UNDER CONSIDERATION IT WAS A SUM OF RS .1 41 437/- AS AGAINST A NET PROFIT OF IMMEDIATE PRECEDING YEAR OF RS.1 38 171/- AND THUS HE HAS FOUND THAT THERE WAS A DECLINE IN THE RATIO OF NET PROFIT AS F OR THE YEAR UNDER CONSIDERATION IT WAS ONLY 1.31% AS AGAINST EARLIER YEARS NET PROFIT OF 8.04%. THE AO CALLED FOR SOME DETAILS AND AFTER EXAMINING ALL THESE THINGS T HE AO MADE ADDITION OF RS.50 49 672/- UNDER VARIOUS HEADS. THE DETAILS OF THESE ADDITIONS ARE AS UNDER:- 3. RS.5 38 732/- REGARDING PAYMENTS MADE TO VARIOUS CAR DEALERS ACROSS DELHI ON BEHALF OF HIS CUSTOMERS: IT WAS IN FACT CO MMISSION/DISCOUNTS/BENEFIT MADE AVAILABLE TO CUSTOMERS ON ACCOUNT OF LOAN TAKE N FROM ICICI BANK. AS PER THE ASSESSEE THE CUSTOMERS WERE PROVIDED WITH FREE ACCESSORIES DISCOUNT IN CASH AND LOYALTY BONUSES ETC. AND THOSE BENEFITS W ERE MERGED INTO THE LOAN AMOUNTS THEREFORE THE ASSESSEE REIMBURSED LESSER PAYMENTS TO THE CAR DEALERS. THE AO REQUIRED THE ASSESSEE TO FILE THE CONFIRMATI ONS WITH CAR NUMBERS AND OTHER DETAILS. THE ASSESSEE DID NOT FURNISH THE RE QUIRED CONFIRMATIONS. DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS THE SUBM ISSION OF THE ASSESSEE THAT A GOOD NUMBER OF CARS WERE FINANCED AND DELIVERY OF V EHICLE WAS DELAYED THE CARS GOT REGISTERED AFTER THE DELIVERY IS MADE AND THE P AYMENTS IS RECEIVED BY THE DEALER THEREFORE THE ASSESSEE WAS NEITHER REQUIRE D TO NOR IT WAS POSSIBLE AND PRACTICABLE TO RELATE THE PAYMENTS MADE TO THE CAR DEALERS WITH CAR NUMBERS. ACCORDING TO THE REPORT SUBMITTED BY THE AO ON THIS ISSUE DATED 5 TH OCTOBER 2004 THE AO SUBMITTED THAT THE ASSESSEE AT THE APP ELLATE STAGE HAS FILED THE ITA NO.541/DEL/2005 4 CONFIRMATIONS OF SOME OF THE DEALERS WHICH WAS NEVE R FILED BEFORE THE AO AND THEREFORE THESE CONFIRMATIONS WERE FRESH EVIDENCES WHICH COULD NOT BE CONSIDERED AT THE APPELLATE STAGE. IT IS IN THIS M ANNER THE CIT (A) HAS REJECTED THE CLAIM OF THE ASSESSEE ABOUT FRESH EVIDENCE FURN ISHED BY THE ASSESSEE ON THE GROUND THAT SUFFICIENT OPPORTUNITY WAS PROVIDED TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS TO FILE SUCH EVIDENCE BU T THE SAME WERE NOT PRODUCED THEREFORE COULD NOT BE ADMITTED UNDER RU LE 46A. 4. THE NEXT ISSUE WAS RELATING TO ADDITION OF RS.12 00 862/-. HERE IT IS THE CLAIM OF THE ASSESSEE THAT THIS AMOUNT WAS REIMBURS ED SUBSEQUENTLY FROM THE PARTIES. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE AO DIRECTED THE ASSESSEE TO FILE COMPLETE DETAILS OF COMMISSION OF RS.84 79 808/- AND IT WAS SUBMITTED THAT CERTAIN PAYMENTS AMOUNTING TO RS.12 00 862/- MADE FOR THE BENEFIT OF THE CUSTOMERS WERE REIMBURSED TO THE ASS ESSEE. THE AO NOTED THAT WHILE DEBITING THE COMMISSION EXPENSES OF RS.84 79 808/- IN THE PROFIT AND LOSS ACCOUNT THE ASSESSEE HAD NOT MENTIONED ABOUT THE RE IMBURSEMENT OF AMOUNT OF RS.12 00 862/- AND THEREFORE IT WAS TREATED TO BE UNEXPLAINED. DURING THE COURSE OF HEARING BEFORE THE CIT (A) THE ASSESSEE F ILED A DETAILED LIST OF COMMISSION PAID AND COMMISSION RECEIVED REFLECTING THEREIN THE SAID REIMBURSED AMOUNT. THE SUBMISSION OF THE ASSESSEE WERE FORWARDED TO ASSESSING OFFICER FOR HIS COMMENTS WHO CONFIRMED TH AT THE SAID DETAILS OF REIMBURSEMENTS WERE NOT FILED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE DECLARATION OF THE SAID AM OUNT AMOUNTED TO DIVERSION OF ASSESSEES INCOME TO THAT EXTENT. IN REJOINDER IT WAS SUBMITTED BY THE ASSESSEE THAT ASSESSING OFFICER HIMSELF HAD AGREED IN THE AS SESSMENT ORDER THAT THESE ENTRIES SHOULD HAVE BEEN ADJUSTED WHILE PREPARING T HE ACCOUNTS AND THUS THE SAID ADDITION WILL TANTAMOUNT TO DOUBLE ADDITION. LD. CIT (A) HAS UPHELD THIS ADDITION ON THE GROUND THAT THE SAID AMOUNT WAS DIS CLOSED BY THE ASSESSEE BEING REIMBURSEMENT ONLY AFTER THE CASE WAS SELECT ED FOR SCRUTINY AND THE ASSESSEE DID NOT FURNISH ANY EVIDENCE DURING THE CO URSE OF ASSESSMENT PROCEEDINGS THEREFORE IT IS OBSERVED BY THE CIT ( A) THAT IT HAS TO BE PRESUMED THAT THE ASSESSEE DID RECEIVE REIMBURSEMENT OF RS.1 2 00 862/- THEN IT SHOULD ITA NO.541/DEL/2005 5 HAVE TAKEN CARE TO ADJUST THE SAME WHILE PREPARING HIS ACCOUNTS BUT THE SAME WERE NOT ACCOUNTED FOR WHILE FILING THE RETURN. 5. THE THIRD ADDITION RELATES TO RS.5 65 783/- BEIN G AN AMOUNT OF COMMISSION PAID TO PERSONS FOR NON-PRODUCTION OF THEIR BANK AC COUNTS AND THEIR INCOME-TAX DETAILS. AS THE ASSESSEE FAILED TO FURNISH THE DET AILS AND FAILED TO PRODUCE THE PARTIES THE AO HELD THAT THE SAID COMMISSION REMAI NED UNVERIFIED AND THUS THE SAID AMOUNT WAS ADDED. DURING THE COURSE OF HEARIN G OF APPEAL BEFORE THE CIT (A) A LIST OF 22 PERSONS WAS FILED TO WHOM THE SA ID COMMISSION WAS PAID. THE DETAILS WERE FORWARDED TO AO WHO REPORTED THAT THOU GH THE DETAILS HAVE BEEN FURNISHED BY THE ASSESSEE CONTAINING THE NAMES ADD RESSES INCOME-TAX PARTICULARS FOR ALMOST ALL THE PARTIES TO WHOM THE SAID COMMISSION WAS PAID. HOWEVER IT WAS POINTED OUT BY THE AO THAT THE ASSE SSEE HAS STILL FAILED TO PROVE THE GENUINENESS OF THESE PAYMENTS AND IT WAS STATED BY THE AO THAT AS PER THE LIST THE COMMISSION PAID TO 22 PARTIES BUT INCOME -TAX PARTICULARS WERE PROVIDED ONLY IN RESPECT OF THREE PERSONS AND IN THE REMAINI NG 19 CASES IT IS WRITTEN EITHER PAN IS NOT ALLOTTED OR IT IS APPLIED FOR. THE ASSE SSEE SUBMITTED SO AS IT RELATES TO SUBMISSION OF PAN FOR THESE PETTY PAYMENTS THE ASS ESSEE IS NOT REQUIRED TO GIVE PAN NUMBERS AND PARTICULARS SUBMITTED WERE SUFFICIE NT TO VERIFY THE GENUINENESS OF THE EXPENDITURE. SO AS IT RELATES TO NON-FILING OF CONFIRMATION IT WAS SUBMITTED THAT THE AO HAS RIGHT TO CALL FOR CONFIRMATION FROM THE SAID PARTIES AS NAMES AND ADDRESSES HAVE BEEN PROVIDED. HOWEVER LD. CIT (A) HAS SUSTAINED THE ADDITION ON THE GROUND THAT INCOME-TAX PARTICULARS OF 19 PAR TIES HAVE NOT BEEN SUBMITTED AND THEREFORE THE PAYMENT OF COMMISSION REMAINED UNVERIFIABLE. 6. THE NEXT ADDITION IS OF A SUM OF RS.20 20 639/- OUT OF COMMISSION PAID FOR WHICH NO DETAILS WERE FURNISHED BY THE ASSESSEE DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS. DURING THE COURSE OF APPEA L BEFORE THE CIT (A) IT WAS SUBMITTED THAT THE DETAILS OF RS.20 20 639/- IN WHI CH NAMES ADDRESSES AND INCOME-TAX PARTICULARS EXCEPT FOR AN AMOUNT OF RS.3 15 438/- WHICH WAS PAID TO ABOUT 48 PERSONS WHOSE NAMES AND ADDRESSES ARE GIVE N AND ALL THE PAYMENTS ARE MADE THROUGH ACCOUNT PAYEE CHEQUE. THE AVERAGE OF SUCH PAYMENTS ITA NO.541/DEL/2005 6 COMES TO ABOUT 6000/- APPROXIMATELY PER PERSON WHIC H ARE ALSO ONE-OFF TRANSACTION. THE SUBMISSION OF THE ASSESSEE WAS FO RWARDED TO AO AND IT WAS REPORTED BY THE AO THAT THE ASSESSEE WAS STILL NOT ABLE TO FURNISH THE REQUIRED DETAILS. THE LIST WAS NOT PRODUCED BEFORE THE AO BUT COMMISSION IS PAID TO 63 PARTIES/PERSONS. BUT PAN WAS FURNISHED ONLY IN RESP ECT OF TWO PERSONS. EVEN THE ADDRESSES WERE FURNISHED IN RESPECT OF ONLY 20 PART IES AND THUS IT WAS SUBMITTED BY THE AO THAT ASSESSEES CLAIM THAT HE F URNISHED INCOME-TAX PARTICULARS AND ADDRESSES OF PERSONS IS INCORRECT. SO AS IT RELATES TO CONFIRMATION FILED BY THE ASSESSEE THE AO REPORTED THAT CONFIRM ATION WAS FROM THE DEALERS IN RESPECT OF THE SAID AMOUNT. AS THE CONFIRMATIONS W ERE NOT PRODUCED BEFORE THE AO THE SAME CONSTITUTE FRESH EVIDENCE WHICH COULD N OT BE ADMITTED. THE LD. CIT (A) REFUSED TO ADMIT THE ADDITIONAL EVIDENCE FILED BEFORE HIM. 7. THE NEXT ADDITION IS OF A SUM OF RS.3 15 750/- O N ACCOUNT OF UNEXPLAINED CASH CREDIT. THE SAID CASH WAS INTRODUCED THROUGH 9 ENTRIES FROM 6 TH APRIL 2004 TO 18 TH SEPTEMBER 2004 AND ALL THESE ENTRIES EXCEPT ONE W ERE BELOW RS.20 000/- . AS THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF INTRODUCTION OF SUCH CASH THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. DURI NG THE COURSE OF HEARING OF APPEAL BEFORE THE CIT (A) IT WAS SUBMITTED THAT TH E AO NEVER REQUIRED THE ASSESSEE TO FURNISH DETAILS IN THAT REGARD. CONFIR MATIONS WITH RESPECT TO SIX PERSONS NAMELY RANJIT SINGH D.P. SINGH NIRMAL M.C. CHAWLA MANISH MEHRA AND MAJ. BHATIA FOR SIX ENTRIES AGGREGATING TO RS.1 10 000/- WERE FILED AND IN RESPECT OF BALANCE AMOUNT OF RS.2 05 750 IT WAS SU BMITTED THAT THE SAME WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF CAR NO. DI-3CP-1554 TO ONE SHRI FIRDAUSH AHMED S/O SHRI GULAB HASSAN AMAR COLONY AND THE CAR BELONGED TO ONE SHRI RAJI VARGHESE. THE SUBMISSION OF THE ASSES SEE WAS FORWARDED TO AO WHO REPLIED THAT THESE CONFIRMATIONS WERE NEVER PRO DUCED BEFORE THE AO. THE CONFIRMATIONS ARE ON PLAIN PAPER ON WHICH PAN OF 1 PERSON HAS NOT BEEN GIVEN AND WARD NUMBER OF SOME OF THE PERSONS HAVE ALSO N OT BEEN MENTIONED. AS PER THE RETURN THE ASSESSEE HAD SHOWN UNSECURED LOA N FROM 3 PERSONS NAMELY PRABHA CHAWLA RENU CHAWLA AND POOJA CHAWLA TOTALL ING TO RS.1 03 000/- HOWEVER CONFIRMATIONS WERE FILED ONLY IN RESPECT O F ABOVE MENTIONED SIX PERSONS ITA NO.541/DEL/2005 7 AND THERE IS NO MENTION IN THE RETURN REGARDING SQU ARED UP LOANS. IT WAS SUBMITTED BY THE ASSESSEE THAT ASSESSEE WAS ONLY RE QUIRED TO FILE SUCH CONFIRMATIONS AND ON THESE SUBMISSIONS OF THE ASSES SEE THE AO HAD NOT MADE ANY COMMENTS. IT WAS FOUND THAT A SUM OF RS.1 03 00 0/- HAVE BEEN CREDITED IN THE NAME OF PRABHA CHAWLA RENU CHAWLA AND POOJA CH AWLA AND THE SAME WAS CONTINUING FROM THE START OF THE YEAR AND THE C ONFIRMATIONS THEREOF WAS DULY FILED AT THE ASSESSMENT STAGE. THE OTHER LOANS WER E SQUARED UP BY THE ASSESSEE DURING THE YEAR THEREFORE NOT REFLECTED IN THE BA LANCE SHEET BUT THE SAME WERE ENTERED IN THE BOOKS OF ACCOUNT WHICH WERE IMPOUNDE D BY THE AO DURING THE ASSESSMENT PROCEEDINGS. SINCE LOANS WERE LESS THAN RS.20 000/- THE SAME WERE NOT REQUIRED TO BE MENTIONED IN THE TAX AUDIT REPORT. CONSIDERING THESE SUBMISSIONS THE CIT (A) HAS DELETED THE ADDITION OF RS.1 10 000/- ON THE GROUND THAT THESE CONFIRMATIONS WERE FILED AND SO AS IT RE LATES TO AMOUNT CREDITED BY THE ASSESSEE ON ACCOUNT OF SALE OF CAR THE ADDITION HA S BEEN SUSTAINED ON THE GROUND THAT CAR DID NOT BELONG TO THE ASSESSEE. TH E SAME WAS NOT REFLECTED IN THE SCHEDULE OF FIXED ASSETS SALE PROCEEDS HAVE BE EN STATED TO HAVE BEEN RECEIVED IN 11 INSTALMENTS FROM 25 TH JULY 2000 TO 18 TH SEPTEMBER 2000 AND THUS HE DISBELIEVED THE EXPLANATION OF THE ASSESSE E AND ACCORDINGLY THE ADDITION WAS SUSTAINED. 8. THE NEXT ADDITION IS OF RS.2 50 000/- WHICH IS W ITH REGARD TO OFFICE RENT. IT WAS FOUND THAT DURING THE YEAR UNDER CONSIDERATION THE RENT EXPENSES WAS CLAIMED AT RS.4 04 000/- AGAINST RS.66 000/- CLAIME D IN THE LAST YEAR. IT WAS SUBMITTED BY THE ASSESSEE THAT HE HAD OCCUPIED ONE MORE PREMISES FOR THE BUSINESS USE IN OLD RAJINDER NAGAR ON A MONTHLY REN T OF RS.36 000/-. THE PAYMENTS WERE MADE THROUGH ACCOUNT PAYEE CHEQUE BES IDES RS.41 000/- PAID AS RENTALS FOR FIXTURES. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS THE AO DIRECTED THE ASSESSEE TO PRODUCE COPY OF RENT AGREE MENT IN RESPECT OF NEW PREMISES AND WAS ALSO ASKED TO PRODUCE RENT RECEIPT S. IN THE ABSENCE OF SUCH DOCUMENTARY EVIDENCE THE AO RESTRICTED THE RENT EX PENSES OF RS.1 54 000/- AND DISALLOWED THE BALANCE AMOUNT OF RS.2 50 000/-. TA KING INTO CONSIDERATION THE FACT THAT THE ASSESSEE EVEN DURING THE COURSE OF AP PELLATE PROCEEDINGS DID NOT ITA NO.541/DEL/2005 8 PRODUCE ANY SUCH DOCUMENTARY EVIDENCE THE ADDITION HAS BEEN SUSTAINED BY THE CIT (A). 9. THE NEXT ADDITION IS 1/6 DISALLOWANCE OF VEHICLE RUNNING AND MAINTENANCE EXPENSES WHICH HAS BEEN UPHELD BY THE CIT (A). AGA INST THESE FINDING OF CIT (A) THE ASSESSEE IS AGGRIEVED HENCE IN APPEAL BEF ORE US. 10. AFTER NARRATING THE FACTS THE LD. AR OF THE AS SESSEE PLEADED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE PROPER EV IDENCES COULD NOT BE FURNISHED TO THE AO FOR THE REASON THAT EITHER THEY WERE NOT ASKED TO BE PRODUCED OR THEY WERE NOT IMMEDIATELY AVAILABLE WI TH THE ASSESSEE. HE SUBMITTED THAT SUBSTANTIAL EVIDENCE WAS COLLECTED B Y THE ASSESSEE AFTER THE ASSESSMENT PROCEEDINGS AND IT WAS SUBMITTED TO THE CIT (A) AND LD. CIT (A) HAS WRONGLY REJECTED THE SAME AND HAS SUSTAINED THE HUG E ADDITIONS. IT WAS SUBMITTED THAT THE ASSESSEE WAS MAINTAINING ALL THE DETAILS. THE BOOKS OF ACCOUNT WERE IMPOUNDED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HE IN THIS REGARD REFERRED TO PAG E 118 OF THE PAPER BOOK. THE BOOKS OF THE ASSESSEE WERE IMPOUNDED ON 15 TH SEPTEMBER 2003 AND IT WAS SUBMITTED THAT THOSE IMPOUNDED BOOKS ARE STILL LYIN G WITH THE AO. IT WAS SUBMITTED THAT THE AO COULD VERIFY THE EVIDENCE SUB MITTED BY THE ASSESSEE WITH REFERENCE TO THE IMPOUNDED BOOKS AND ALSO COULD HAV E MADE THE INQUIRIES AT HIS OWN AND THUS THE ADDITIONS WERE WRONGLY MADE BY T HE AO AND LD. CIT (A) HAS WRONGLY REJECTED THE CLAIM OF THE ASSESSEE FOR ADMI SSION OF ADDITIONAL EVIDENCE. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THOSE DOCUMENTS SHOULD HAVE BEEN ADMITTED BY THE CIT (A). HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE ISSUE RAISED IN THE PRESENT APPEAL SHOULD BE RESTORED BAC K TO THE FILE OF AO WITH THE DIRECTION TO DECIDE THEM DENOVO AFTER GIVING THE AS SESSEE A REASONABLE OPPORTUNITY OF HEARING. HE SUBMITTED THAT AS THE M ATTER RELATES TO ASSESSMENT YEAR 2001-02 AND A CONSIDERABLE TIME HAS ELAPSED T HE ASSESSEE MAY NOT GET DIRECT EVIDENCE TO PROVE THE CLAIM OF EXPENDITURE THEREFORE THE AO MAY BE DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE ON T HE BASIS OF CORROBORATIVE EVIDENCE AND TO DECIDE THESE ISSUES AFRESH AS PER T HE PROVISIONS OF LAW. ITA NO.541/DEL/2005 9 11. ON THE OTHER HAND RELYING ON THE ORDER OF THE CIT (A) IT WAS SUBMITTED BY LD. DR THAT SUFFICIENT OPPORTUNITIES WERE GIVEN TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE CIT (A) AFTER MEN TIONING ALL THE FACTS HAS RIGHTLY DECIDED THE APPEAL OF THE ASSESSEE AND THE REFORE THERE IS NO INFIRMITY IN THE ORDER OF THE CIT (A) AND THE SAME SHOULD BE CON FIRMED. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE BOOKS OF THE ASSESS EE WERE IMPOUNDED BY THE AO ON 15 TH SEPTEMBER 2003 AS PER COPY OF THE LETTER OF THE A O PLACED AT PAGE 118 OF THE PAPER BOOK. THE AO COULD VERIFY THE CLA IM OF THE ASSESSEE FROM THE IMPOUNDED BOOKS OF ACCOUNT. IN ANY CASE WHEN THE EVIDENCES WERE SUBMITTED BEFORE THE CIT (A) AND THOSE WERE FORWARDED TO THE AO THE AO COULD MAKE THE INQUIRY TO VERIFY THE CLAIM OF THE ASSESSEE. THIS EXERCISE HAVING NOT BEEN DONE WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE REQUEST OF THE AR SHOULD BE ACCEPTED THEREFORE WE RESTORE ALL THESE ISSUES TO THE FILE OF THE AO WITH THE DIRECTION TO DECIDE THEM DENOVO AFTER PROVIDING THE ASSESSEE TO PLACE ALL THE EVIDENCES AVAILABLE WITH HIM ON RECORD. THEREAFTER THE AO WILL RE-ADJUDICATE THESE ISSUES IN ACCORDANCE WITH THE LAW. IT MAY BE MENTIONED HERE THAT THE CASE IS OLD AND BY AN AFFLUX OF TIME THE ASSESSEE MAY N OT BE ABLE TO PLACE DIRECT EVIDENCE ON RECORD BUT THEN WHATEVER THE EVIDENC E IS PRODUCED BY THE ASSESSEE TO CORROBORATE ITS CLAIM OF EXPENDITURE T HE SAME WOULD BE CONSIDERED BY THE AO AS PER PROVISIONS OF LAW BY KEEPING IN MI ND THE EVIDENCE PRODUCED BY THE ASSESSEE. WE DIRECT ACCORDINGLY. 13. IN THE RESULT FOR STATISTICAL PURPOSES THE AP PEAL IS TREATED TO BE ALLOWED. . THE ORDER PRONOUNCED IN THE OPEN COURT ON 19.02.20 10. SD/- SD/- [G.E. VEERABHADRAPPA] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED 19.02.2010. DK ITA NO.541/DEL/2005 10 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES