Batra Henley Cables, Grandlay Cinema Complex,New Friends Colony,New Delhi. vs Income Tax Officer, Ward 12(7), New Delhi.
March, 28th 2014
1 ITA No.123/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH `A' NEW DELHI
BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT
SHRI R.P. TOLANI, JUDICIAL MEMBER
Assessment Year : 1997-98
Batra Henley Cables, vs Income Tax Officer,
Grandlay Cinema Complex, Ward 12(7),
New Friends Colony, New Delhi.
Appellant by: Ashwani Kumar
Respondent by : Gagan Sood, DR
PER R.P. TOLANI, J.M.
In this appeal, the assessee has raised various issues which can be
summarized as under:-
i) Ld. Commissioner of Income Tax(A) was not justified in
upholding the addition of Rs.99,14,298/- being the difference
between the profit of Rs.28,998/- as per P&L account and the
profit of Rs.99,43,296/- on account of alleged undeclared value
of clearance of wires ad cable deposited in four banks.
ii) Ld. Commissioner of Income Tax(A) was not justified in
upholding the following additions:-
2 ITA No.123/Del/2013
a) a sum of Rs.7,632/- i.e. 1/6th out of telephone expenses on
the ground of absence of bills;
b) a sum of Rs.6,054/- i.e. 1/6th out of vehicle running and
maintenance in the absence of vouchers;
c) a sum of Rs.2,183/- i.e. 1/6th out of rebate and discount;
(iii) a sum of Rs.2,45,000/- on account of unexplained sources
in the capital accounts of the partners.
2. Ld. counsel for the assessee at the outset contends that the books of
accounts of the assessee were impounded by the Central Excise Department.
Against the additions, assessee preferred an appeal before the ITAT in ITA
No. 997/Del/2004 dated 22.2.2008 setting aside the assessment and restoring
the matter back to the file of Assessing Officer with a direction to make a
fresh assessment. The assessee was directed to produce books of accounts
which were lying in the custody of Central Excise Department. During fresh
assessment proceedings also, the assessee could not get release of books of
accounts from Central Excise Department. In these compelling
circumstances, Assessing Officer was forced to again pass assessment
without the books of accounts. The additions were repeated and confirmed
by the Commissioner of Income Tax(A). Ld. counsel contends that now the
books of accounts have been released by the Central Excise Department and
3 ITA No.123/Del/2013
assessee is in a position to produce the same before the Assessing Officer.
Since the earlier order of ITAT was to the effect that the assessment should
be framed after verification of the books of accounts, in the interest of
substantial justice, it is pleaded that the impugned assessment being without
verifications of books needs again to be set aside.
3. Ld. counsel for the assessee gave an undertaking that the assessee will
fully cooperate with the fresh assessment proceedings if they are directed
and produce the relevant information before the Assessing Officer. It is
pleaded that this situation has arisen because of the reasons beyond the
control of the assessee and so far assessee has not been heard based on the
books of accounts. Therefore, it is desirable and in the interest of principles
of natural justice that the present assessment may be set aside and restored
back to reframe the assessment expeditiously. Ld. counsel relied on the
order of Assessing Officer.
4. We have heard the rival submissions and perused the material
available on record. ITAT vide its order directed the Assessing Officer to
reframe the assessment looking at the crucial reason that the books of
accounts remained in the custody of Central Excise Department. Thus, the
emphasis was on proper assessment based on verification of the books of
accounts which could not be achieved in the second round as the books
4 ITA No.123/Del/2013
could not be produced by the Central Excise Department. The fault is not
attributable to the assessee. It has been admitted that books of accounts have
now been released and an undertaking has been given that they will be
produced before the Assessing Officer and full cooperation will be rendered
by the assessee in expeditiously finalizing the assessment. In our considered
view and if the present assessment is set aside in these peculiar
circumstances and restored back to the Assessing Officer to reframe the
same afresh after giving the assessee an adequate opportunity of being heard
in accordance with law.
5. In the result, the assessee's appeal is allowed for statistical purposes.
Order pronounced in the open court on 24.3.2014.
(G.D. AGRAWAL) (R.P. TOLANI)
VICE PRESIDENT JUDICIAL MEMBER
DT. 24th MARCH 2014
Copy forwarded to:-
4. CIT 5. DR By order