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Dy. Commissioner of Income Tax, Circle-I, Ghaziabad VS. M/s Hindon Forge Pvt. Ltd., C/o M/s Malik & Co., 305/7, Thapar Nagar, Meerut
August, 13th 2014
                                             ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                                  CO No. 351/Del/2012, CO No. 84/Del/13;
                                                          4678/Del/12 & CO No. 83/Del/13


               IN THE INCOME TAX APPELLATE TRIBUNAL
                        DELHI BENCH "C", NEW DELHI
           BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER
                                       AND
                  SHRI H.S. SIDHU, JUDICIAL MEMBER


                           I.T.A. Nos. 665/Del/2013,
                           4676 & 4677/Del/2012
                            A.Yrs. 2003-04, 2006-07
                                   & 2008-09
Dy. Commissioner of              VS.                        M/s Hindon Forge Pvt.
Income Tax,                                                 Ltd.,
Circle-I, Ghaziabad                                         C/o M/s Malik & Co.,
                                                            305/7, Thapar Nagar,
                                                            Meerut
                                                            (PAN: AAACH4606E)
(APPELLANT)                                                 (RESPONDENT)


                           C.O. NO. 351/DEL/2012
                           & CO No. 84/Del/2013
                           (In I.T.A. No.
                           4677/Del/2012 )
                                   A.Y. 2008-09
M/s Hindon Forge Pvt.            VS.                        Dy. Commissioner of
Ltd.,                                                       Income Tax,
C/o M/s Malik & Co.,                                        Circle-I,
305/7, Thapar Nagar,                                        CGO       Complex,
Meerut                                                      Hapur        Road,
(PAN: AAACH4606E)
                                                            Ghaziabad

(APPELLANT)                                                 (RESPONDENT)

                           I.T.A. No. 4678/Del/2012
                                  A.Y. 2009-10
Dy. Commissioner of              VS.                        M/s Hindon Forge Pvt.
Income Tax,                                                 Ltd.,
Circle-I, Ghaziabad                                         C/o M/s Malik & Co.,
                                                            305/7, Thapar Nagar,
                                                            Meerut
                                                            (PAN: AAACH4606E)
(APPELLANT)                                                 (RESPONDENT)


                                        1
                                           ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                                CO No. 351/Del/2012, CO No. 84/Del/13;
                                                        4678/Del/12 & CO No. 83/Del/13




                                     AND

                         C.O. NO. 83/Del/2013
                         (In I.T.A. No.
                         4678/Del/2012 )
                                 A.Y. 2009-10
M/s Hindon Forge Pvt.          VS.                        Dy. Commissioner of
Ltd.,                                                     Income Tax,
C/o M/s Malik & Co.,                                      Circle-I,
305/7, Thapar Nagar,                                      CGO       Complex,
Meerut                                                    Hapur        Road,
(PAN: AAACH4606E)
                                                          Ghaziabad

(APPELLANT)                                               (RESPONDENT)



         Department by                :     Sh. Satpal Singh, Sr. D.R.
          Assessee by                 :     Sh. HG Malik, Adv.


                        Date of Hearing : 11.08.2014
                        Date of Order          12.08.2014
                                             : 12.08.2014
                             ORDER
PER BENCH
     These 04 appeals by the Revenue and 03 Cross Objections by
the assessee relate to the assessment years 2003-04, 2006-07,
2008-09, 2009-10.       Since some of the issues involved in these
appeals are common, we are therefore, proceeding to dispose them
off by this consolidated order for the sake of convenience.

            2003-04
ASSTT. YEAR 2003-

2.   This appeal by the Revenue is against the order passed by the
Ld. CIT(A) dated 30.11.2012 deleting the penalty imposed by the AO
under section 271(1)(c) of the Act in relation to asstt. year 2003.04.



                                      2
                                         ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                              CO No. 351/Del/2012, CO No. 84/Del/13;
                                                      4678/Del/12 & CO No. 83/Del/13


3.   We have heard rival submissions and perused the relevant
records.    It is seen that the Ld. CIT(A) deleted the penalty by
considering   the   order   passed       by   the    Tribunal     in   quantum
proceedings deleting the additions, forming foundation for the
imposition of penalty. The Ld. AR was fair enough to state that the
Revenue's     appeal   against   the      Tribunal     order      in   quantum
proceedings for asstt. year 2003-04           has been       accepted by the
Hon'ble High Court to the extent that such order has been set aside
by restoring the matter to the lower authorities.          In view of the fact
that the quantum proceedings have come back to the lower
authorities, the Ld. AR candidly accepted that the instant penalty
proceedings be also restored. No objection was raised by the ld. DR
in this regard. In view of the above stated facts, we set aside the
impugned order and remit the matter to the file of the AO for a fresh
decision in consonance with and pursuant to the view to be taken by
him in the quantum proceedings on the issues on which such
penalty was imposed.




4.   In the Result, the Revenue's appeal is allowed for statistical
purposes.

            2006-07
ASSTT. YEAR 2006

5.   This appeal by the Revenue arises out of the order of the Ld.
CIT(A) dated 15.6.2012. The ground nos. 1, 2 and 4 are against the
order holding that not crediting the excise duty receivable to the
profit and loss account did not constitute a rectifiable mistake and
thereby deleting the addition of Rs. 96,08,516/- so made by means
of order passed under section 154 of the Act.




                                     3
                                       ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                            CO No. 351/Del/2012, CO No. 84/Del/13;
                                                    4678/Del/12 & CO No. 83/Del/13


6.   Briefly stated the facts of this ground are that the assessee
showed a sum of Rs. 96.08 lacs to the balance sheet as Excise duty
receivable. This amount was not credited to the Profit and loss
account.   The AO passed order under section 154 treating this
amount as assessee's income chargeable to tax.               The Ld. CIT(A),
following the view taken by him for the asstt. year 2003-04, deleted
the addition.   In this connection, the ld. CIT(A) observed that the
assessee did not claim any deduction at the time of payment of
excise duty and likewise the excise duty receivable was also not
offered for taxation.

7.   After considering the rival submissions and perusing the
relevant material on record, it is observed that this issue came up
for adjudication before the Tribunal for the asstt. year 2003-04 and
2005-06. Vide order dated 27.9.2012 in ITA No. 1091 and
1092/Del/2012,    the Tribunal has upheld the view taken by the Ld.
CIT(A) in deleting the addition. A copy of such tribunal order has
been placed     at Pages 4 to 12 of the Paper Book.               The Ld. DR
reiterated the submissions as were advanced before the Tribunal
while arguing the appeals for such earlier years. It is seen that the
Tribunal has taken a decision on this issue in assessee's favour after
hearing the ld. DR.     Admittedly the facts for the instant year are
identical and no differentiation in the facts or legal position              has
been brought to our notice by the ld. DR. Respectfully following the
precedent, we uphold the      impugned order on this score.               These
grounds are not allowed.

8.   The only other ground which survives for our consideration is
ground no. 3 which is about the deletion of addition pursuant to
variation in the figures of sales as per the trading account and as


                                   4
                                        ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                             CO No. 351/Del/2012, CO No. 84/Del/13;
                                                     4678/Del/12 & CO No. 83/Del/13


per the sales tax order. The facts apropos this ground are that the
assessee company had shown total sales including export and
domestic sales at Rs. 147060415/- in its Profit and loss account.
During the course of assessment proceedings, the assessee filed
month-wise details of total sales which summed up to Rs.
153064877/-.       The assessee was called upon to explain the
differential amount of Rs. 6004462/-. In the absence of the assessee
furnishing any explanation to reconcile the difference or tendering
any reply, the AO made addition of Rs. 60.04 lacs. The Ld. CIT(A)
was pleased to delete this addition by relying on some calculation
which is now place at Page 13 of the Paper Book.

9.    Having heard the rival submissions and perused the relevant
material on record, it is noticed that the AO has recorded a
categorical finding that the assessee did not furnish any explanation
about the difference in the figures of turnover included in the annual
accounts and month-wise details furnished during the course of
assessment proceedings. Page 13 of the Paper Book reconciling the
two figures appears to have been placed before the Ld. CIT(A) for
the first time. It can be seen from the impugned order that the Ld.
CIT(A) did not call upon for any remand report from the AO. In our
considered opinion, the ends of justice would meet adequately if the
impugned order on this score is set aside and the matter is restored
to the file of the AO.   We order accordingly and direct him to decide
this issue afresh in light of the details to be furnished by the
assessee reconciling the two figures.

10.   In the result, Revenue's appeal is partly allowed for statistical
purposes.



                                    5
                                      ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                           CO No. 351/Del/2012, CO No. 84/Del/13;
                                                   4678/Del/12 & CO No. 83/Del/13


            2008-09
ASSTT. YEAR 2008

11.   The Revenue has filed the appeal against the order passed by
the Ld. CIT(A) on 14.6.2012.     The assessee has also filed cross
objections against the order of the ld. first appellate authority.             It
can be seen that the assessee filed cross objection twice,               which
have been numbered as CO No. 351/Del/12 and CO No. 84/Del/13.
Admittedly, both the cross objections        have similar grounds.             It
appears that the Cross objection has been inadvertently filed in
duplicate. As such Cross Objection No. 84/Del/2013 is dismissed as
infructuous and Cross Objection No. 351/Del/2012 will be taken for
our decision on merits.

12.   The only issue raised by the Revenue in this appeal is against
the action of the Ld. CIT(A) in deleting the addition on account of
excise duty shown by the assessee as receivable which was not
credited to the Profit and loss account. Both the sides are in
agreement that the facts and circumstances of this ground are
similar to those for asstt. year 2006-07. Following the view taken
hereinabove, we uphold the impugned order in deleting the addition
on account excise duty shown as receivable but not credited to the
Profit and loss account.

13.   The only effective ground raised by the assessee in its Cross
objection is against confirmation of disallowance of Rs. 2.60 lacs out
of the expenses on ad hoc basis.      Briefly stated the facts of this
ground are that      the assessee claimed total expenses of Rs.
3908781. The AO observed that during the course of assessment
proceedings that    the assessee could not produce certain bills /
vouchers of the amounts claimed under the heads Advertisement
expenses,   Conveyance,    Furnace    repairs,     Office     maintenance,

                                  6
                                        ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                             CO No. 351/Del/2012, CO No. 84/Del/13;
                                                     4678/Del/12 & CO No. 83/Del/13


Packing and forwarding expenses, Printing and stationery, Traveling
expenses, Vehicle running and maintenance, Freight and carriage
etc..     On account of this defect, the AO made a lump sum
disallowance of Rs. 2.60 lacs. The Ld. CIT(A) echoed the same.




14.     After considering the rival submissions and perusing the
relevant material on record, it is found as an undisputed position
that certain expenses claimed by the assessee were not backed by
proper evidence. When we consider the total amount of expenses
claimed as deduction by the assessee to the tune of Rs. 39.08 lacs
and the amount disallowed on ad hoc basis Rs. 2.60 lacs, we find
that such estimate of disallowance as reasonable. We therefore,
uphold the impugned order on this score.

15.     In the result, the appeal by the Revenue and the Cross
Objections filed by the assessee are dismissed.

            2009-10
ASSTT. YEAR 2009

16.     The only issue raised by the Revenue in its appeal is against
the addition on account of excise duty shown as receivable from the
Government which was not credited to the Profit and loss account.
Both sides are in agreement that the facts and circumstances of the
grounds raised by the Revenue are mutatis mutandis similar to
those for the assessment year 2007-08 and 2008-09. Following the
view taken hereinabove, we approve the decision taken by the Ld.
CIT(A) in deleting the addition on this score.

17.     The only issue raised by the assessee in its Cross Objection is
against confirmation of disallowance of Rs. 3.50 lacs out of expenses
on ad hoc basis.         Here again, we find that the facts and
circumstances are similar to those for asstt. year 2008-09. The only

                                    7
                                         ITA NOS. 665/Del/2013, 4676-4677/Del/2012&
                                              CO No. 351/Del/2012, CO No. 84/Del/13;
                                                      4678/Del/12 & CO No. 83/Del/13


distinguishing feature is that the quantum of expenses claimed as
deduction by the assessee in this year stands at Rs. 31.53 lacs
against which the disallowance of expenses has been sustained at
Rs. 3.50 lacs. Considering the totality and facts and circumstances
and view taken by us for the preceding year, we are of the
considered opinion that the disallowance of expenses should be
sustained at the same percentage as was there for the preceding
year. Accordingly, the disallowance is reduced to Rs. 2.09 lacs as
against Rs. 3.50 lacs sustained in the first appeal.                  Thus, the
assessee gets relief of Rs. 1.41 lacs.

18.   In the result, the Revenue appeal is dismissed and Cross
objection filed by the assessee is partly allowed.

      Order pronounced in the Open Court on 12/8/2014.

      Sd/-                                                       Sd/-

       SIDHU]
 [H.S. SIDHU]                                         [R. S. SYAL ]
JUDICIAL MEMBER                                   ACCOUNTANT MEMBER
Date 12/8/2014
"SRBHATNAGAR"
Copy forwarded to: -
1.    Appellant
2.    Respondent
3.    CIT
4.    CIT (A)
5.    DR, ITAT


                            TRUE COPY
                                                         By Order,



                                                         Assistant Registrar,
                                                         ITAT, Delhi Benches

                                   8

 
 
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