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Sh. Rakesh Kumar Bhargava, Prop. M/s. Mapytron Systems, 17, Narinder Bhawan,448, Ring Road, AzadpurDelhi 110 033 Vs. ITO, Ward 19(2), New Delhi
September, 18th 2015
          IN THE INCOME TAX APPELLATE TRIBUNAL
               (DELHI BENCH ` G', NEW DELHI)

        BEFORE SHRI N. K. SAINI, ACCOUNTANT MEMBER
           AND SHRI KULDIP SINGH, JUDICIAL MEMBER
                        I.T.A. No. 3432/Del/2015
                       Assessment year : 2006-07
Sh. Rakesh Kumar Bhargava,           Vs.        ITO, Ward 19(2),
Prop. M/s. Mapytron Systems,                    New Delhi
17, Narinder Bhawan,
448, Ring Road, Azadpur
Delhi ­ 110 033
GIR / PAN:AAGPB6366G
          (Appellant)                     (Respondent)

                   Appellant by :     Ms. Ira Gupta, Adv.
                   Respondent by :    Shri Sujit Kumar, Sr. DR

      Date of hearing       :         24.08.2015
      Date of pronouncement :         17.09.2015

                                      ORDER

PER KULDIP SINGH, JM:

      Appellant assessee, by filing the present appeal has sought to set aside
the impugned order dated 29.08.2014 passed by Ld. CIT(A) XXII, New
Delhi for the Assessment Year 2006-07 on the sole effective ground that
"Ld. CIT(A) XXII has erred in holding that credit of Rs.9,14,516/- (Rupees
Nine Lac, Fourteen Thousand Five Hundred Sixteen Only) from 11 sundry
creditors were bogus and thereby upheld the addition made by the A.O. of
Rs.9,14,516/-.
                                          2            ITA No.3432/Del/2015




2.    The brief facts of the case are: during the processing of income tax
return filed by the assessee for the Assessment Year 2006-07, declaring an
income of Rs.1,38,320/-, the case was put under scrutiny through CASS and
consequently, notice u/s 143(2) dated 19.10.2007 was issued. The assessee
attended the assessment proceedings from time to time and claimed his
sundry creditors to the following effect:-


         1          M/s. Mayur Electronics                  Rs.28,159/-
         2          M/s. Verma Engineering Works            Rs.1,59,955/-
         3          M/s. S.L.B. Exports Ltd.                Rs.48,430/-
         4          M/s. J.K. Tube Co.                      Rs.24,248/-
         5          M/s. N.K.A. RCC Pipes Sup.              Rs.2,57,283/-
         6          M/s. Ved Generators                     Rs.1,49,377/-
         7          M/s. Katyal B.M.S.                      Rs.18,750/-

         8          M/s. R. K. Enterprises                  Rs.83,326/-

         9          M/s. Natraj Sanitary & P                Rs.68,354/-

         10         M/s. Walia Fabricators                  Rsa.72,368/-

         11         M/s. Rajni Build. M. Sup.               Rs.4,500/-

                                                            Rs.9,14,750/-



3.    To ascertain the genuineness and creditworthiness, the assessee was
required to furnish names, complete address and amount of creditors vide
questionnaire dated 07.01.2008.           The assessee filed his reply dated
29.01.2008 but failed to furnish requisite information. Then, vide letter
dated 01.07.2008, the assessee was asked to furnish confirmation of
                                         3               ITA No.3432/Del/2015




creditors, which he has furnished pertaining to the period 1998-99 to 2001-
02 and further submitted that all these payments are pending since 2000-01
due to delay of payment from M/s. NBC Corpn. Ltd. In order to verify the
claim made by the assessee, notices u/s 133(6) of the Act were issued for
confirmation from the parties concerned. Pursuant to the notices issued u/s
133(6), M/s. J. K. Tube Co. and M/s. S.L.B. Exports Ltd. have denied to
have any business transaction with the assessee during the relevant period of
2005-06 and 2006-07.       However, the assessee has filed confirmation
regarding following sundry creditors:-





        1          M/s. Mayur Electronics                     Rs.28,159/-
        2          M/s. Verma Engineering Works               Rs.1,59,955/-
        3          M/s. N.K.A. RCC Pipes Sup.                 Rs.2,57,283/-
        4          M/s. Ved Generators                        Rs.1,49,377/-
        5          M/s. Katyal B.M.S.                         Rs.18,750/-
        6          M/s. R. K. Enterprises                     Rs.83,326/-
        7          M/s. Natraj Sanitary & P                   Rs.68,354/-

        8          M/s. Rajni Build. M. Sup.                  Rs.4,500/-



4.    The assessee has also furnished some copies of bills in support of
claim of creditors but the copies of bills pertaining to M/s. Ved Generators,
Sumit Katyal and N. K. Agarwal do not reflect charging of interest nor any
such instruction have been given.            Consequently, A.O. arrived at the
conclusion that Inspector of Income Tax of the concerned ward be deputed
for inquiry report of M/s. R, J, Enterprises Verma Engineering works, Natraj
                                       4                ITA No.3432/Del/2015




Sanitary and Hardware Paints and Ved generators and the same sundry
creditors are not existing at the given address. Consequently, the A.O.
arrived at the conclusion that there is no liability of assessee towards the
claimed sundry creditors and the claim of Rs.9,14,750/- is a bogus liability
and liability which has ceased to exist. Ld. CIT(A) vide impugned order,
upheld the order passed by the A.O. Feeling aggrieved, the appellant, has
come up before Tribunal by way of the present appeal.
6.    Ld. A.R. for the assessee challenged the impugned order by
contending inter alia that A.O. as well as Ld. CIT(A) have erred in holding
that all the eleven sundry creditors as claimed by the assessee, are not
existing and the entries claimed by the assessee are bogus one; that the A.O.
has not filed any affidavit to the effect that the assessee has failed to produce
such sundry creditors, therefore, the confirmation letters as detailed at page 5
of the impugned order have been wrongly treated as stereotyped; that the
assessee has not been given sufficient time to file reply nor it was asked to
produce such sundry creditors nor he was confronted with the confirmations
field by sundry creditors, and prayed for setting aside the impugned order.
8.    On the other hand, Ld. D.R. relied upon the order of A.O. as well as
Ld. CIT(A) and contended that since out of eleven sundry creditors claimed
by the assessee, two were found to be not existing and confirmations made
by eight sundry creditors were found to be stereotyped, nor any material has
been placed on record to support the confirmations, the assessee has no
liability towards the said eleven creditors and the claim of Rs.9,14,750/- was
bogus one and the A.O. has rightly made the addition of Rs.9,14,750/- and
prayed for dismissal of the present appeal of the assessee.
                                       5                ITA No.3432/Del/2015




9.    Undisputedly, M/s. J. K. Tubes and S.L.B. Exports Ltd. have denied
the claim of transaction with the assessee whereas, remaining nine parties
were called upon to supply the information during assessment proceedings
and remand proceedings u/s 133(6) of the Act. However, the notices sent to
them have been received back unserved and without compliance. For ready
reference, the outcome of the notices issued to the assessee is reproduced as
under:-
S.No. Name & address                                      status
1     Shri Yrav Dewal                                     Returned back unserved
      Prop. M/s. Natraj Sanitary Hardware & Paints,       by       the     postal
      Miyawali Nagar, New Rohtak Road, Delhi-110 087      authorities.
2     Shri R. K. Aggarwal                                 Returned back unserved
      Prop. M/s R K Enterprises                           by       the     postal
      2nd Floor, 1528, Bhagirath Palace                   authorities.
      Delhi-110006
3     Shri Sumit Kr. Katyal                               Returned back unserved
      Prop. M/s S K Katyal B M Suppliers                  by       the     postal
      Derawal Nagar, G. T. Road, Delhi110009              authorities.
              And
      2/21, Roop Nagar, Delhi-110007
4     Shri Ved Prakash                                    Neither letter received
      Prop. M/s Ved Generators                            back      nor        any
      Shop No.9, New Market, Opp. OBC Nangloi, Delhi-     compliance to the letter.
      110041
5     Shri Madan Lal                                     Returned back unserved
      Prop. M/s Rajni Building Material Supplier Badli   by       the     postal
      Village, Outer Ring Road, Delhi.                   authorities.
6     Shri Narinder Kumar Aggarwal Prop. M/s N K         Neither letter received
      Aggarwal A-80 DDA Colony,                          back        nor     any
      Khayola, Delhi-110018.                             compliance to the
                                                         letter.
7     Shri Mohan Lal Verma                               Neither letter received
      Prop. M/s Verma Engineering Works                  back        nor     any
      Flat No. 91, Pocket B-5, Sector-18, Rohini, Delhi- compliance to        the
      110085.                                            letter.
8     Shri Akash Bhargava Prop.M/sMayur Electronics & Returned back unserved
      Electricals  New Railway Road, Gurgaon-122001.     by       the     postal
                                                         authorities.
                                      6                ITA No.3432/Del/2015




9     Shri H S Walia Prop. M/s Walia Steel Works & Steel Returned back unserved
             by the Fabricators, Palam Vihar, Polom-Delhi by       the    postal
                                                          authorities.
             Road, Gurgaon, Haryana


10.   We have heard authorized representatives of the parties to the appeal
and gone through documents placed on record in the light of the facts and
circumstances of the case.
11.   Keeping in view the undisputed fact that the assessee has placed
before Assessing Officer the confirmations made by his nine sundry
creditors as required u/s 133(6) of the Act, documents relied upon by the
parties and submissions made before the Bench, we are of the considered
view that Ld. CIT(A) has erred in passing the impugned order dated
29.08.2014 in affirming the addition of Rs.9,14,750/- made by the A.O. vide
order dated 16.12.2008 for the following reasons:-
      i)    that both, the A.O. as well as Ld. CIT(A) being judicial
      authorities, were under obligation to adhere to the rule of natural
      justice by providing opportunity of being heard to the assessee to
      produce nine sundry creditors whose confirmations have been duly
      placed on record during assessment / remand proceedings;
      ii)   that when the assessee has discharged its onus u/s 68 of the Act
      by providing confirmation letter from the sundry creditors, the onus
      stands shifted to the A.O. to controvert the same by bringing cogent
      evidence on record, that the said parties are not existing and their
      creditworthiness and genuineness is highly doubtful. The A.O. has
      rather summarily dismissed the confirmation letters on the sole
                                      7                ITA No.3432/Del/2015







      ground that the same are stereotyped and has never given findings that
      the confirmation filed by the assessee in respect of the nine sundry
      creditors are fake one and of non existing entities;
      iii)   that no doubt Inspector, income tax deputed by the A.O.
      reported that M/s. R. K. Enterprises, Natraj Sanitary and Verma
      Engineering works are non-existing, but the assessee has never been
      provided opportunity to produce them, or to fill their latest addresses
      but outrightly, ignored the confirmations and business transactions
      submitted by the assessee;
      iv)    that notices sent to nine parties detailed at page 20 of the
      impugned order are shown to have been received back unserved but
      thereafter, no opportunity has been provided to the assessee to provide
      their latest address or to produce the parties before the A.O. nor any
      effort has been made to serve them through substitute service;
      v)     that confirmation filed by assessee pertaining to nine parties /
      sundry creditors detailed at page 20 of the impugned order ought not
      to have been rejected merely on the ground that the letters sent to
      them by the A.O. have been received back unserved except with
      thorough probe;
      vi)    that it is abundantly clear from the facts on record that A.O. has
      failed to verify confirmations filed by the assessee rather rejected the
      same on the basis of conjectures and surmises.
12.   In view of what has been discussed above, the impugned order dated
29.08.2014 passed by ld. CIT(A) affirming the addition of Rs.9,14,750/-
made by A.O. vide order dated 16.012.2008 is not sustainable in the eyes of
                                          8             ITA No.3432/Del/2015




law, hence, hereby set aside. Consequently, the case is restored to the file of
A.O. for verification of confirmations filed by assessee by providing
opportunity of being heard to the assessee.
12.     In the result, appeal field by the assessee is allowed for statistical
purposes.
13.     Order pronounced in the open court on 17th Sep., 2015.
        Sd./-                                                          Sd./-
 ( N. K. SAINI)                                 (KULDIP SINGH)
ACCOUNTANT MEMBER                           JUDICIAL MEMBER
Date: 17.09. 2015
Sp
Copy forwarded to:-
   1. The appellant
   2. The respondent
   3. The CIT
   4. The CIT (A)-, New Delhi.
   5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.
True copy.
                                                     By Order
                                                  (ITAT, New Delhi).
S.No.                     Details                 Date      Initials   Designation
  1      Draft dictated on                           24/8               Sr. PS/PS
                                                    25/8,
  2      Draft placed before author                                     Sr. PS/PS
                                                 4,7,10/9
         Draft proposed & placed before the
  3                                                                      JM/AM
         Second Member
         Draft discussed/approved by Second
  4                                                                      AM/AM
         Member
  5      Approved Draft comes to the Sr. PS/PS   17/9/15                Sr. PS/PS
  6      Kept for pronouncement                     17/9                Sr. PS/PS
  7      File sent to Bench Clerk                   17/9                Sr. PS/PS
         Date on which the file goes to Head
  8
         Clerk
 9       Date on which file goes to A.R.
 10      Date of Dispatch of order

 
 
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