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 19.01.217.
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
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