News shortcuts: From the Courts | Top Headlines | VAT (Value Added Tax) | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | Professional Updates | Corporate Law | Markets | Students | General | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing | GST - Goods and Services Tax
« From the Courts »
 The A.C.I.T. Central Circle – 26 New Delhi. Vs. M/s Mayfield Projects C – Block, Site Office Near Hanuman Mandir Mayfield Garden, Sector - 50 Gurgaon, Haryana
 The A.C.I.T Circle 12(2) New Delhi Vs. M/s International Hospital Ltd C/o Escorts Heart Institute & Research Centre, Okhla Road New Delhi
 For other GST and/ or Tax Audit Reports, whether separate UDIN is required for various annexures?
 Commissioner Of Income Tax Vs. Bhagwan Shree Laxmi Naraina
 Rolls-Royce Plc Vs. Deputy Director Of Income Tax
 Income Tax Officer Ward-17(2), New Delhi Vs. M/s MSS Cosmetics Pvt. Ltd., Shop No. 10, 32-C, BR Complex, Near Una Enclave, Mayur Vihar, Delhi-110091
 M/s Designarch Infrastructure Pvt. Ltd C/o Raj Kumar & Associates, CAs L – 7A[LGF], South Extension, Part –II New Delhi Vs. The I.T.O Ward – 7(1) New Delhi
 The ACIT, Circle – 59(1), Room No.101, F-Block, Vikas Bhawan, New Delhi Vs. M/s. Vasundhara Flavours (Presently known as Gopal Consumer World), 339, Functional Industrial Estate, Patparganj, New Delhi – 110 092.
 The ACIT, Central Circle 25, Room No.322, III Floor, ARA Centre, Jhandewalan Extn., New Delhi. Vs. M/s. Digicall Teleservices P. Ltd., D-7 Dhawandeep Apartments, 6 Jantar Mantar Road, New Delhi.
 DCIT, Circle – 10(1), New Delhi. Vs. M/s. Girdhar International Pvt. Ltd., F-16, Udyoug Nagar, Peeragari, New Delhi – 110 041.
 M/s. Cellnext Solutions Ltd., New Delhi. Vs. The Income Tax Officer, Ward – 5 (4), New Delhi. (

Vipin Gupta B-19, Shakti Nagar Extn., New Delhi. Vs. ITO Ward 34(4) Room No. 713, E-2 Block, Civic Centre, New Delhi.a
December, 02nd 2019
                  Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 1 of 6




                 IN THE INCOME TAX APPELLATE TRIBUNAL
                      DELHI BENCH "SMC" New Delhi

                BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER

                       ../ .I.T.A No.1253/Del/2019
                       Š Š/Assessment Year:2015-16

 Vipin Gupta                                       ITO
 B-19, Shakti Nagar Extn.,                        Vs. Ward 34(4)
 New Delhi.                                           Room No. 713, E-2 Block,
                                                      Civic Centre,
                                                      New Delhi.

         Appellant                                                  Â/Respondent
 PAN No. AAOPG7646L


 Šå /Assessee by                          Shri Archit Goyal, CA
 Ö /Revenue by                            Shri Pradeep Singh Gautam, Sr. DR

                                        /O R D E R

1.      This appeal filed by the assessee against the impugned order dated

22.11.2018 passed by the Ld. CIT(Appeals)-12, New Delhi in relation to

assessment year 2015-16 on the following grounds:

     "Ld. CIT(A) has erred in giving following observations:
     1.     The Ld. CIT(A) has erred in giving a finding that "the assessee
            had enough time to collect any papers it wanted to rely on"
            whereas the record speaks that appellant could not get the
            desired information despite follow up made with the Ld. AO.
     2.     The Ld. CIT(A) has erred in observing that the "proceedings
            cannot be kept in abeyance without reasonable cause" whereas
            the appellant was waiting for information from the Ld. AO as
            per the letter dated 20.11.2018 to make effective
            representation before the Ld. CIT(A).
     3.     The Ld. CIT(A) has erred in observing that "no justifiable
            reason to adjourn the proceedings on an unsubstantial basis"
            whereas the copy of letter written to Ld. AO was part of the
            letter dated 20.11.2018 given to Ld. CIT(A) for seeking
              Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 2 of 6


       adjournment.


4.     The Ld. CIT(A) has erred in considering only observations of the
       Ld. AO in para 6 of the Ld. CIT(A) order whereas submission of
       the appellant given before the Ld. AO (reproduced by Assessing
       Officer in order also) has not been considered and thereby not
       observing the principle of natural justice.
5.     The Ld. CIT(A) has erred in observing that "the appellant is not
       interested to pursue the appeal filed by him" whereas the
       appellant was pursuing the appeal and also was pursuing with
       the Ld. AO in respect of the replies received against notice
       issued u/s 133(6) of the IT Act, 1961 by the Ld. AO.
Disallowance of commission expenses
6.     The Ld. CIT(A) has erred in confirming the disallowance of Rs.
       20,85,909/- made by the Ld. Assessing Officer ("AO") in respect
       of commission expense.
Misunderstanding the assessee's nature of business
7.     The Ld. AO as well as Ld. CIT(A) has grossly erred in not
       understanding the nature of business of the appellant by giving
       a decision in Para 8.1 "the assessee is engaged in the business
       of procurement and sale of refractory bricks" even though it
       was specifically explained by the appellant in the written
       submission dated 12th December, 2017 made before the Ld. AO.
 Misinterpretation of appellant's main source of income
8.     The Ld. CIT(A) has erred in mentioning in para 8.1 that "The
       bricks were sold to various steel plants in India under the name
       and style of M/s Vira enterprises" whereas the appellant's only
       source of income is receiving commission from M/s Tianjin New
       Century Refractories Co. Ltd. (hereinafter referred as "TNCR")
       in facilitating the sale thereof.
Evidence not considered in respect of commission expense
9.     The Ld. CIT(A) has erred in observing that the appellant could
       not prove the services rendered by the agents whereas
       sufficient evidence was furnished keeping in view of the nature
       of business which includes email communication of appellant
       with agents.
10.    The Ld. CIT(A) has erred in confirming the observation of Ld.
       AO that the buyers could not acknowledge the services of
       agents whereas the agents provided services to the appellant in
       facilitating the business procured from seller i.e. M/s TNCR.
11.    The Ld. CIT(A) has erred in making observation in para 8.4 of
       his order that the appellant could not prove how agents helped
       him in procuring the sales whereas the appellant has placed
       the requisite evidence on records.
                  Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 3 of 6







      Reliance on case law-different and distinguishable from facts of
     case
     12.    The Ld. CIT(A) has erred in applying the case laws in its order
            which are different and distinguishable from the facts of the
            appellant.
     Disallowance of business expenses
     13.    The Ld. CIT(A) has erred in confirming the disallowances of Rs.
            2,39,801/- made by Ld. AO alleging the same for personal
            purpose in respect of business promotion, telephone, car
            maintenance, car depreciation, petrol, interest and travelling
            expenses.

2.      At the time of hearing, Ld. Counsel for the assessee stated that Ld.

First Appellate Authority has not given sufficient opportunity for

substantiating his claim before the Ld. First Appellate Authority in spite

of the fact that the assessee is having all necessary evidences for

substantiating his claim in support of his contention. He has also filed a

Paper Book containing pages 1 to 299 in which he has filed:

     1. Certified true copy of letter dated 06.08.2018 filed before Sh.
        Surender Singh the Ld. AO for seeking a copy of the
        information obtained u/s 133(6) from the commission agent
        and steel plant and a copy of Order Sheet.
     2. Appellant's subsequent letter dated 15.11.2018 filed before Sh.
        Surender Singh the Ld. AO for seeking a copy of the
        information obtained u/s 133(6) from the commission agent
        and steel plant and a copy of Order sheet.
     3. Appellant's letter dated 20.06.2018 filed before Sh. Anil Kumar
        Mishra the Ld. CIT(Appeals) for seeking adjournment along with
        the power of attorney.
     4. Appellant's letter dated 04.09.2018 filed before Sh. Anil Kumar
        Mishra the Ld. CIT(A) for seeking adjournment along with the
        copy of letter filed before Ld. AO for seeking copy of
        documents referred in Assessment Order.
             Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 4 of 6


5. Appellant's letter dated 20.11.2018 filed before Sh. Anil Kumar
   Mishra the Ld. CIT(Appeals) for seeking adjournment along with
   the copy of letter filed before the Ld. AO for seeking copy of
   documents referred in Assessment Order.
6. Copy of Statement of Profit & Loss for the year ended
   31.03.2015.
   Before the Assessing Officer
7. Reply dated 24.04.2017 and 24.05.2017 filed before the Ld. AO
   with reference to claim of commission along with the notice
   and questionnaire issued u/s 142(1) of the Act dated
   26.08.2016 and 19.01.2017.
8 Reply dated 11.08.2017 and 12.09.2017 filed before the Ld. AO
   with reference to claim of commission along with the notice
   and questionnaire issued u/s 142(1) of the Act dated
   31.07.2017.
9. Reply dated 14.11.2017 and 04.12.2017 filed before the Ld. AO
   with reference to claim of commission along with the notice
   and questionnaire issued u/s 142(1) of the Act dated
   15.09.2017.
10.      Reply dated 12.12.2017 filed before the Ld. AO with
   reference to claim of commission along with the notice issued
   u/s 142(1) of the Act and show cause notice dated 05.12.2017.
11.      Reply dated 21.12.2017 filed before the Ld. AO with
   reference to claim of commission along with the notice issued
   u/s 142(1) of the Act and show cause notice dated 21.12.2017.
12(a)   Replies of buyers filed before Ld. AO against the notice
   issued u/s 133(6) of the Act.
12(b)   Replies of agents filed before Ld. AO against the notice
   issued u/s 133(6) of the Act.
13.     E-mail communication of appellant with commission
        agents.
                 Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 5 of 6




3.    He requested that issues in dispute may be set aside to the Ld.

First Appellate Authority to decide the same afresh as per law, after

giving full opportunity to the assessee.







4.    On the contrary, Ld. DR relied upon the order passed by the Ld.

First Appellate Authority but did not raise any serious rejection on the

request of the Ld. Counsel for the assessee.


5.    I have heard the both parties and perused the orders passed by the

Revenue Authorities especially the documentary evidence filed by the

assessee in the shape of Paper Book containing pages 1 to 299 in which

the   assessee   has      attached           various         documentary                evidences   for

substantiating his claim.           I am not commenting on the documentary

evidence filed by the assessee in the shape of Paper Book but I am of the

considered view that in the interest of justice, the issues in dispute

required reconsideration at the level of Ld. First Appellate Authority.

Therefore, in the interest of justice, I am setting aside the issue in

dispute to the Ld. First Appellate Authority to decide the same afresh as

per law, after giving full opportunity to the assessee and also to consider

the evidences filed by the assessee mentioned above.
                   Vipin Gupta vs. ITO / I.T.A.No.1253/Del/2019/A.Y.2015-16 Page 6 of 6




6.     In the result, the appeal filed by the assessee is allowed for

statistical purposes.


       The order pronounced in the open court on 02.12.2019

                                                                                                 Sd/-
                                                                                        (H.S. SIDHU)
                                                                                   JUDICIAL MEMBER

Dated: 2nd December, 2019
*Kavita Arora, Sr. PS

Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard
file of ITAT.

                                                                                            By order



                                   Assistant Registrar, ITAT: Delhi Benches-Delhi

Home | About Us | Terms and Conditions | Contact Us
Copyright 2019 CAinINDIA All Right Reserved.
Designed and Developed by Ritz Consulting