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Dy.CIT, Circle 26(1) D 9, Vikas bhawan New Delhi Vs. Sh. Pawan Gupta 4 B/5, Tilak Nagar New Delhi
May, 25th 2015
                IN THE INCOME TAX APPELLATE TRIBUNAL
                     DELHI BENCHES : "F" NEW DELHI

              BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND
                     SHRI J.SUDHAKAR REDDY, AM

                               ITA No: 2791/Del/2012
                                   A.Y.: 2008-09

Dy.CIT, Circle 26(1)             vs.     Sh. Pawan Gupta
D 9, Vikas bhawan                        4 B/5, Tilak Nagar
New Delhi                                New Delhi

                                         PAN: ADKPG 6797 K

(Appellant)                                            (Respondent)

                         Assessee by : Sh.Taranjeet Singh Bhatia, C.A.
                         Revenue by: Sh. Vikram Sahay, Sr.D.R.


                           ORDER


PER J.SUDHAKAR REDDY, ACCOUNTANT                   MEMBER


      This appeal is filed by the Revenue directed against the order of the

Ld.CIT(A)-XXIV,   New Delhi dt.        27.3.2012   pertaining to the Assessment

Year (`A.Y.') 2008-09.


2.    Facts in brief:-    The facts of the case are brought out at para 2 of the

order of the Ld.CIT(A), which is extracted for ready reference.


" 2. Return of income was filed on 30.09.2008 declaring income at
Rs.84,31,980/-. A survey was conducted u/s. 133A of the IT. Act on
07.03.2008 by ADIT, Investigation Unit- VI, New Delhi at the business
premises of the assessee during which various discrepancies were noticed by
the survey team. The case was selected for scrutiny and statutory notice
u/s.143(2) were issued and served upon the appellant. The appellant is the
proprietor of a diagnostic centre running in the name and style or M/s. Star
Imaging & Path Lab at Tilak Nagar, New Delhi and other places in Delhi. After
calling for various details and examination of books of accounts, bills and
vouchers of all expenses claimed, the AO made following additions to the
income of the appellant :
                                 ITA 2791/Del/2012
                                    AY: 2008-09
                                   Pawan Gupta




      (a)    Rs.2,96,294/- on account of difference in cash found and cash as
per books.
      (b)    Rs.11,64,078/- being 10% of expenses claimed under the head
"Salary Paid".
      (c)    Rs.1,11,344/- being 10% of expenses on renovation of building.
      (d)    Rs.5,93,602/- being 10% of expenses on repairs and
maintenance.
      (e)    Rs.3,30,925/- being 1/6th of expenses debited to P&L A/c. under
the head Staff Welfare, Postage and Telephone, Miscellaneous expenses and
Travelling expenses for personal usage."






2.1.   The assessee carried the matter in appeal before the First Appellate

Authority. The First Appellate Authority has granted part relief.



2.2.   Aggrieved the Revenue is in appeal before us on the following grounds.


i)    On the facts and in the circumstances of the case, the Ld CIT(A) erred
in law as well as on facts by deleting the addition of Rs.2,96,294/- made by
the AO on a/c of unexplained cash by ignoring the facts stated in the
assessment order.
(ii)  On the facts and in the circumstances of the case, the Ld CIT(A) erred
in law as well as on facts by deleting the addition of Rs.11 ,64,078/- made
by the AO on a/c of excess payment of salary and bonus by ignoring the facts
stated in the assessment order.
(iii) On the facts and in the circumstances of the case, the Ld CIT(A) erred
in law as well as on facts by deleting the addition of Rs.1, 11,344/- made by
the AO on a/c of renovation expenses in spite of the fact that during the
course of survey, it was noticed that some expenses were incurred in cash
outside the books of accounts.
(iv)  On the facts and in the circumstances of the case, the Ld CIT(A) erred
in law as well as on facts by deleting the addition of Rs.5,93,602/- made by
the AO on a/c of repair and maintenance expenses by ignoring the facts
stated by the AO regarding increase in the turnover and lack of proportionate
increase in net profit of the assessee.
(v)   The appellant craves the right to add any other ground(s) of appeal
during the course of hearing of this appeal.


3.     We have heard Sh. Vikram Sahay, Ld.Sr.D.R. on behalf of the Revenue

and Shri Taranjeet Singh Bhatia, Ld.Counsel for the assessee.


                                                                                2
                                ITA 2791/Del/2012
                                   AY: 2008-09
                                  Pawan Gupta




4.    On a careful consideration of the facts and circumstances of the case,

orders of authorities below, material on record and case laws cited, we hold

as follows

5.    Ground no.1 is general in nature.


6.    Ground no.2 is against the deletion of an addition of Rs.2,96,294/-

made by the AO on account of unexplained cash.        During the course of

survey the cash on hand as per the books was Rs.23,36,547/- and where as

the actual cash physically found was Rs.17,33,117/-. The difference was

added by the AO for the reason that salary paid during that period

amounted to Rs.8,99,671/- and the assessee failed to explain the difference

of Rs.2,96,294/- i.e. (Rs.8,99,671 ­ Rs.6,03,377). The assessee's case was

that disbursement of salaries were being carried out when the investigating

team arrived and stopped the same. It was submitted by the time of such

stoppage, only an amount of Rs.6,03,377/- was disbursed and the balance

of Rs.2,96,294/- was disbursed on the next day i.e. 8th March   i.e. after the

survey team left the premises.      The Ld.CIT(A) deleted the addition by

accepting this explanation.   We find no infirmity in the same. Hence we

uphold the finding of the First Appellate Authority and dismiss this ground

of Revenue.


7.    Ground no.2 is against deletion of an addition of Rs.11,64,078/- on

the ground that there is excess payment of salary and bonus.             The

disallowance was made on adhoc basis. The First Appellate Authority has




                                                                                 3
                                     ITA 2791/Del/2012
                                        AY: 2008-09
                                       Pawan Gupta


dealt with this issue at para 5 page 4 and 5 of his order. At para 5 he held

as follows:


"5. The second addition pertains to a blanket disallowance of 10% of all expenses
claimed under the head "Salaries and Bonus", salary being Rs.1,02,94,238/- and
bonus being Rs.13,46,543/-, totaling upto Rs.l,16,40,781/-. The AO disallowed 10%
of the total amount, i.e. Rs.l1 ,64,078/- on the grounds that the appellant had falsely
booked and inflated the expenses under the head Salary and Bonus to reduce the
tax incidence on the diagnostic centre. The AO has mentioned that during the course
of survey operation, it was found from the salary paid account that the appellant had
claimed salary in the name of following four persons : (a) Smt. Dimple Bhardwaj
(Rs.l,35,000/-); (b) Ms. Rumi Agarwal (Rs.l,29,600/-); (c) Ms. Sweta Gupta
(Rs.3,60,000/-) and (d) Ms. Sangeeta Bawa (Rs.79,200/-). The AO has noted that the
names of these persons were neither reflected in the manual Attendance Register,
nor were they found present in the premises during the survey. On being asked to
clarify, the appellant submitted that the non-availability of the employees might just
be a co-incidence. The AO refuted this argument by quoting from the statement of Sh.
Alok Bhardwaj, S/o. Sh. Gopinath Sharma, whose statement was recorded by the
survey team and who was working there in the capacity of Senior Manager,
Business Development and Customer Operation's since June 2007 at a salary of
Rs.30,000/- per month. The survey team recorded the statement of Mr. Bhardwaj
whose wife Srnt. Dimple Bhardwaj was taking home a salary of Rs.15,000/- per
month. When confronted, Sh. Alok Bhardwaj accepted that it was being done at his
insistence as a measure of tax planning, since, he was employed by the Diagnostic
Centre at a salary of Rs.45,000/- per month. On this basis, the AO disallowed 10%
of Salary and Bonus expenses across the board on estimate basis amounting to
Rs.11,64,078/-. On the other hand, the appellant explained that three of the
employees namely Ms. Rumi Agarwal, Ms. Sweta Gupta and Ms. Sangeeta Bawa
were not an employee of Star Imaging and Path Lab, but were employees of its sister
concern M/s. Janta X-Ray Clinic. Ms.Rumi Agarwal was working there as an Office
Executive, Ms. Sweta Gupta as Senior Supervisor and Ms. Sangeeta Bawa as
Receptionist. The salary paid to them was being booked and duly reflected in the
accounts of M/s. Janta X-Ray Clinic. As regards, Smt. Dimple Bhardwaj, the
statement of Sh. Alok Bhardwaj was self explanatory and no inflation of expenses
under the head Salary and Bonus was being carried out by the appellant. I have



                                                                                          4
                                        ITA 2791/Del/2012
                                           AY: 2008-09
                                          Pawan Gupta


given careful consideration to the arguments of both the AO as well as the appellant.
The fact that three out of four lady employees mentioned in the survey report were
not working for the appellant, but for its sister concern M/s. Janta X-Ray Clinic, has
not been disputed, countered or rebutted by the AO. As regards the salary paid to
Smt. Dimple Bhardwaj, it appears to be an internal arrangement worked out by the
Senior Manager of the Centre Sh. Alok Bhardwaj for his personal benefit. No case can
be made out for booking of bogus expenses on this count and action if any, should be
taken by the AO of Sh. Alok Bhardwaj. The books of accounts, bills and vouchers of
the appellant are audited by a Chartered Accountant and no other discrepancy has
been pointed out by the AO in the books of accounts of the appellant. The AO has not
resorted to the provisions of Section 145(3) of the Act to reject the books of accounts
of the appellant. Under such circumstances. making an ad-hoc disallowance of 10%
out of all salaries and bonus expenses does not appear justified. The addition of
Rs.11,64,078/- is therefore deleted."



7.1.   The Ld.Sr.D.R. could not controvert this factual findings of the First

Appellate Authority. Hence we do not find any infirmity in the same. Thus

we dismiss ground no.2 of the Revenue.





8.     Ground no.3 is on the issue of disallowance of renovation expenses on

an adhoc basis.       The Ld.CIT(A) directed the AO to verify whether the

renovation expenses in question were capitalised by the assessee or not. If a

particular expenditure has been crystallised, the question of an adhoc

disallowance and addition to the taxable income does not arise. Thus we

dismiss this ground of Revenue.


9.     Ground no.4 is against the deletion of an addition of Rs.5,93,602/-

made by the AO on account of repairs and maintenance expenses here also

an adhoc disallowance of 10% has been made.                  After considering the

submissions of the assessee the First Appellate Authority observed that no




                                                                                          5
                                   ITA 2791/Del/2012
                                      AY: 2008-09
                                     Pawan Gupta


particular defects are pointed out in the books of accounts and under those

circumstances        the board disallowance of 10% from all repairs and

maintenance expenses debited to the profit and loss a/c cannot be upheld.

We find no infirmity in these findings.                In the result ground no.4 is

dismissed.


10.     Ground no.5 is general in nature.


11.     In the result, the Revenue 's appeal is dismissed.


        Order pronounced in the Open Court on 22nd May, 2015.



              Sd/-                                             Sd/-

         (G.C.GUPTA)                                     (J.SUDHAKAR REDDY)
      VICE PRESIDENT                                    ACCOUNTANT MEMBER


Dated: the 22nd May, 2015


*manga


Copy of the Order forwarded to:
 1.    Appellant;
 2.Respondent;
3.CIT;
 4.CIT(A);
5.DR;
 6.Guard File

                                                              By Order




                                                            Asst. Registrar



                                                                                      6

 
 
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