Latest Expert Exchange Queries
sitemapHome | Registration | Job Portal for CA's | Expert Exchange | Currency Converter | Post Matrimonial Ads | Post Property Ads
 
 
News shortcuts: From the Courts | News Headlines | VAT (Value Added Tax) | Service Tax | Sales Tax | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | ICAI | Corporate Law | Markets | Students | General | Indirect Tax | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing
 
 
 
 
Popular Search: ICAI offer Get Windows 7,Office 2010 in Rs.799 Taxes :: cpt :: ARTICLES ON INPUT TAX CREDIT IN VAT :: TAX RATES - GOODS TAXABLE @ 4% :: VAT Audit :: list of goods taxed at 4% :: VAT RATES :: form 3cd :: ACCOUNTING STANDARDS :: TDS :: Central Excise rule to resale the machines to a new company :: empanelment :: ACCOUNTING STANDARD :: articles on VAT and GST in India :: due date for vat payment
 
 
From the Courts »
  Vatsala Shenoy vs. JCIT (Supreme Court)
  Vatsala Shenoy vs. JCIT (Supreme Court)
 M.K.Overseas Pvt. Ltd. Vs. Pr.Commissioner Of Income Tax-06
 Arshia Ahmed Qureshi Vs. Pr. Commissioner Of Income Tax-21
 CHAUDHARY SKIN TRADING COMPANY Vs. PR. COMMISSIONER OF INCOME TAX-21
  Sushila Devi vs. CIT (Delhi High Court)
  Vatsala Shenoy vs. JCIT (Supreme Court)
 Deputy Director Of Income Tax Vs. Virage Logic International
 Commissioner Of Income Tax-3 International Taxation Vs. Virage Logic International India
 Pr. Commissioner Of Income Tax-06 Vs. Moderate Leasing And Capital Services Pvt. Ltd.
 ITO vs. Vikram A. Pradhan (ITAT Mumbai)

Shiv Kumar, Ramesh Sethi, 81-82, 1st Floor, Gokhale Market, Opp. Tis Hazari Courts New Delhi 110 054 Vs. ITO Ward -20(2) New Delhi.
September, 03rd 2015
                  IN THE INCOME TAX APPELLATE TRIBUNAL
                      DELHI BENCHES : "G" NEW DELHI

                  BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER
                               AND
                 SHRI T.S. KAPOOR, ACCOUNTANT MEMBER

                      ITA Nos. 3901,3902,3903/Del/2014
                        Assessment Years: 2008-09

             Shiv Kumar,             vs.     ITO
             Ramesh Sethi, 81-82,             Ward -20(2)
             1st Floor,                       New Delhi.
             Gokhale Market,
             Opp. Tis Hazari Courts
             New Delhi ­ 110 054
             (PAN AVWPK9672K)
             (Appellant)               (Respondent)
                     Assessee by :- None
                     Department by:- Shri Sujit Kumar , Sr. DR

                                  ORDER

PER T.S. KAPOOR, ACCOUNTANT MEMBER

       These are three appeals filed by assessee against the separate orders of

Ld. CIT(A) all dated 29/11/2013. ITA No. 3901/Del/2014 is against Ld. CIT(A)

order partly confirming the assessment completed by AO u/s 144 of the Income

Tax Act, 1961 whereas ITA No. 3902/Del/2014 relates to confirmation of penalty

imposed by AO u/s 271(1)(b) of the Income Tax Act, 1961 and ITA No.

3903/Del/2014 relates to confirmation of penalty u/s 271(1)(c) of the Income

Tax Act.

2.   These appeals were heard together. Therefore for the sake of convenience

a common and consolidated order is being passed. None was present on behalf
                                        2      ITA Nos. 3901,3902,3903/Del/2014
                                                    Shiv Kumar vs. ITO
of assessee. However it was felt that the appeals can be disposed off even in the

absence of representative of assessee. Therefore with the help of Ld. DR the

facts of the case were examined.

3.    Ld. DR pointed out that assessee initially filed return of income declaring

the income from business of automobile and auto parts and despite affording

many opportunities the assessee did not appear before AO and therefore AO had

to complete assessment u/s 144 of the Act. He further elaborated that assessee

had filed his return of income declaring income from automobile parts whereas

before Ld. CIT(A) he changed his stance and stated that he had earned income

from tuition and in fact before Ld. CIT(A) he also stated that the return was filed

by him by mistake and in fact he was not liable for income tax. Ld. DR submitted

that how can be a person file a return and then deny that it was not his return.

Therefore Ld. DR submitted that additions sustained by Ld. CIT(A) need to be

confirmed.




4.      We have heard Ld. DR and have gone through the material available on

record. We find that AO had made various additions u/s 144 of the Act. The

relevant findings of AO imposing additions are reproduced as under :-

      "A.       In the return of income against sale, the assessee has shown the
      total sales at Rs. 5,08,431/-. Whereas against the gross receipt at Rs.
      4,43,903/- has been shown. No reason for the difference has been given. In
      view of the above, the difference of the total turnover and gross receipt
      which comes to Rs. 64,528/- is added to the total income of the assessee.

                                                       (Addition of Rs. 64,528/-)
                                  3      ITA Nos. 3901,3902,3903/Del/2014
                                              Shiv Kumar vs. ITO
B. No capital has been shown as utilized. It is not possible to do the
business without capital to make sale of Rs. 5,08,431/-. The assessee may
require atleast Rs. 1,00,000/- (approx) as his capital. As the assessee did
not show any capital, Rs. 1,00,000/ - is added to the income of the
assessee as investment u/s 68 of the IT Act.

                                          (Addition of Rs. 1,00,000/-)

C. As per column 51 of the ITR the assessee has shown net profit of Rs.
2,10,750/- whereas as per the computation of income, the net profit has
been shown at 1,55,897/- only. On the basis of above, there is a net
difference of Rs. 54,853/- (2,10,750 - 1,55,897) in the profit declared by the
assessee. The difference of Rs. 54,853/- is added to the income of the
assessee.

                                                 (Addition of Rs. 54,853/- )

D.      As per the return, the assessee has shown gross expenses at Rs.
2,97,681/-. In the absence of the details of the expenses, it is difficult to
ascertain the nature of these expenses. In the absence of details, 1/4th of
the above expenses which comes to Rs. 74,420/- is disallowed and added
to the income of the assessee.

                                                 (Addition of Rs. 74,420/- )

E.     As per return, in column No. 6, the assessee has shown sundry
creditors at Rs 19,872/-. No details of the creditors has been provided. The
onus lies on the assessee to prove the genuineness of the creditor which
the assessee failed. In the absence of the details, Rs. 19,872/- outstanding
against creditors is added to the. income of the assessee

                                                 (Addition of Rs. 19,872/-)

F. The assessee has claimed deduction under chapter VI-A at Rs. 3,400/- for
which no evidence of payment is available on record. In the absence of the
evidence, the same I. added to the income of the assessee.

                                                 (Addition of Rs. 3,400/- )"
                                       4      ITA Nos. 3901,3902,3903/Del/2014
                                                   Shiv Kumar vs. ITO



5.   Ld. CIT(A) allowed part relief to the assessee by holding as under :-



     "8,4 Thus it is seen that the Appellant has been shifting his stand regarding
     the source of income, initially claiming in the Return that he was involved
     in trading of Auto Parts etc., subsequently claiming that he was having
     income from tuition and that he was running coaching Classes under the
     name and style of 'Oasis Acadmy' and then subsequently claimed that he
     had no income from tuition in the year under consideration. In view of
     these contradictory and false claims of the Appellant, it is clear that the
     claims of the Assessee are not reliable and it is apparent that the Assessee
     making various claims just to avoid tax and penal liability.

     8.5 It is claimed by the Assessee that the notices did not reach him and
     hence he could not comply to the same. Perusal of the Assessment Order
     u/s 144 dated 27.12.2010 in the case of the Assessee for the A.Y. 2008-09,
     shows that the notice was served through affixture. In the absence of the
     latest address of the Appellant the service by affixture upon the last known
     address is fully valid. It is also seen that the Assessee has no evidence for
     his claims that he went away from Delhi in December, 2008 and returned
     back after two years in December 2010 and also that he did not receive
     any notices from the Assessing Officer. On one hand the assessee claims to
     be engaged in Automobile business, on the other hand claims that he is
     having tuition income and running Oasis Academy and then, to avoid the
     taxes and penalties claims that he was not having any income from tuition
     in AY 08- 09 and has even filed an affidavit claiming that the Return for the
     AY 08-09 was inadvertently filed, alongwith Balance Sheet, P&L Account
     etc. There can be an inadvertent mistake, in some action but each and
     every action can not be brushed aside, claiming it to be an inadvertent
     action. The Assessee drew up his Balance Sheet, P&L Account etc. and even
     filed Return on the basis of such documents; and now to avoid taxes and
     penalties is claiming them to be inadvertently filed. In view of the nature of
     the action, it is very clear that the conduct of the Assessee was deliberate,
     it can not be taken as a minor inadvertent mistake.
                                   5      ITA Nos. 3901,3902,3903/Del/2014
                                               Shiv Kumar vs. ITO



8.6 The Assessee has claimed that he did not get reasonable opportunity
for making compliance before the Assessing Officer. However. it is seen
that sufficient opportunity was given to him in Appeal but the Assessee did
not avail of that opportunity and did not submit all the information,
details, documents etc. and rather changed his claims regarding the
income of the year under consideration after detailed queries were made
by Order Sheet entry dated 30.05.13 (in Appeal No. 82/11-12), and also did
not give the full details, documents and information etc. asked for. It .was
clear that the Assessee was evading in making compliance to escape from
the tax and penal liability. In view of this situation, each of the additions
made by the Assessing Officer were examined and other than an addition
of Rs. 1,00,0001- made on adhoc basis by the Assessing Officer, all other
additions were confirmed.

8.7 It is seen that the conduct of the Assessee was deliberate, and with an
intention to prevent the truth from coming out, the Assessee kept on
shifting his stand about his income for AY 08-09 and having initially
claimed in the Return that he was involved in trading of Auto Parts etc.,
subsequently claimed that he was having income from tuition and that he
was running coaching classes under the name and style or 'Oasis Acadmy'
and then subsequently claimed that he had no income from tuition in the
year under consideration. In view of these contradictory and false claims of
the Appellant, it is clear that the claims of the Assessee are not reliable and
it is apparent that the Assessee making various claims just to avoid tax and
penal liability.

8.8. The Assessing Officer has added an amount of Rs. 1,00,000/- on a
purely adhoc basis without any evidence for his contention that the
Assessee would have made an investment of Rs. 1,00,000/- which was
taxed by the Assessing Officer U/S 68 of the IT Act. The Assessee has stated
that the Appellant has already shown his actual investment in the Balance
Sheet. The Assessing Officer has not been able to point out any investment
by the Assessee over and above that shown in the Balance Sheet and
hence, I am unable to sustain this addition which is hereby deleted.
                                       6      ITA Nos. 3901,3902,3903/Del/2014
                                                   Shiv Kumar vs. ITO



      8.9 The Assessing Officer has added a difference of Rs.54,853/- to the
      income of the basis that the Assessee has disclosed net profit of Rs.
      2,10,750/- whereas in the computation of income, the net profit has been
      shown at Rs. 1,55,897/- only. In the absence of any proper explanation by
      the Assessee, no relief can be given and this addition is hereby confirmed.

      8.10 The Assessing Officer has disallowed l/4th of the expenses claimed at
      Rs. 2,97,686/- in absence of the details of the expenses and has observed
      that even the nature of these expenses cannot be ascertained. The
      Assessee could not submit any evidence to controvert these observations.
      though it was claimed in the Written Submissions dated 30.05.13 that all
      the expenses are for business purpose only. It is noteworthy that the claim
      of genuineness of expenses is contrary to the subsequent claims of the
      Assessee. In view of the entire facts. the addition amounting to Rs 74/420/-
      is hereby confirmed.

      8.11 Sundry Creditors amount to Rs. 19,872/-- were added back to the
      Income of the Assessee in the absence of any details and the Assessee
      being unable to discharge the onus of proving the genuineness of the
      Creditors. For this addition also the Assesee could not submit any evidence
      to controvert these observations, though it was claimed in the written
      Submissions dated 30.05.13 that all the Creditors are totally genuine. It is
      noteworthy that the claim of genuineness sof Creditors is contrary to the
      subsequent claims of the assesee. In view of the entire facts, the addition
      amounting to Rs. 19,872/- is hereby confirmed.

      8.12 The Assessee claimed deduction under Chapter-VIA amounting to Rs.
      3,400/- which was disallowed in the absence of any evidence. No evidence
      was given in the appellate proceedings also and hence the disallowance
      has to be confirmed."






6.   From the orders of authorities below making additions and partly confirming

them we find that both authorities have not passed speaking orders and
                                           7      ITA Nos. 3901,3902,3903/Del/2014
                                                       Shiv Kumar vs. ITO
moreover the necessary clarifications stated by assessee were not properly

examined. Assessing Officer has also completed assessment u/s 144 of the Act.

Therefore in view of the substantial justice we are of the view that appeals

confirming the assessment and confirming the penalties needs to be looked after

again by AO. The AO will provide sufficient opportunity to the assessee of being

heard. In view of the above appeals filed by the assessee are allowed for

statistical purposes.

7.        In the result, the appeals filed by the assessee are allowed for statistical

purposes.

8.        This decision was pronounced in the Open Court on 2nd September, 2015.

                   sd/-                                      sd/-

               (H.S. SIDHU)                        (T.S. KAPOOR)
             JUDICIAL MEMBER                   ACCOUNTANT MEMBER


Dated: the 2nd September, 2015
`veena'

Copy of the Order forwarded to:

1.    Appellant
2.    Respondent
3.    CIT
4.    CIT(A)
5.    DR
6.    Guard File                           By order
                                                              Dy. Registrar


Sl.                       Description                 Date
No.

 1.   Date of dictation by the Author              1.9..2015
                                             8    ITA Nos. 3901,3902,3903/Del/2014
                                                       Shiv Kumar vs. ITO
2.   Draft placed before the Dictating Member      2.9.2015

3.   Draft placed before the Second Member

4.   Draft approved by the Second Member

5.   Date of approved order comes to the Sr. PS

6.   Date of pronouncement of order

7.   Date of file sent to the Bench Clerk

8.   Date on which file goes to the Head Clerk

9.   Date of dispatch of order

 
 
Home | About Us | Terms and Conditions | Contact Us
Copyright 2016 CAinINDIA All Right Reserved.
Designed and Developed by Binarysoft Technologies Pvt. Ltd.
Binarysoft Technologies - Our Vision

Transfer Pricing | International Taxation | Business Consulting | Corporate Compliance and Consulting | Assurance and Risk Advisory | Indirect Taxes | Direct Taxes | Transaction Advisory | Regular Compliance and Reporting | Tax Assessments | International Taxation Advisory | Capital Structuring | Withholding tax advisory | Expatriate Tax Reporting | Litigation | Badges | Club Badges | Seals | Military Insignias | Emblems | Family Crest | Software Development India | Software Development Company | SEO Company | Web Application Development | MLM Software | MLM Solutions