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September, 03rd 2014
                                                   ITA NO. 1475/Del/2012

                DELHI BENCH "G", NEW DELHI

                      I.T.A. No.
                         A.Y. : 2008-09
ITO, WARD 21(3),               VS.          MR. SATISH KUMAR,
ROOM    NO.   D-3,                          H.NO. 24, VILLAGE-
VIKAS BHAWAN,                               GHOGA, NARELA,
NEW DELHI                                   DELHI ­ 110 039
                                            (PAN: ATLPK3637P)
(APPELLANT)                                 (RESPONDENT)

       Department by             :    Sh. Rakesh Kumar, Sr. DR
        Assessee by              :    Sh. Suresh K. Gupta, CA

                 Date of Hearing : 26-
                 Date of Order         28-8-2014
                                     : 28-


     This appeal by the Revenue is directed against the order
of the Ld. Commissioner of Income Tax (Appeals)-XXII, New
Delhi dated 10.1.2012 pertaining to assessment year 2008-09.

2.   The grounds raised read as under:-

                                                       ITA NO. 1475/Del/2012

           "1.   Whether on the facts and circumstances of the
                 case the Ld. CIT(A) has erred in giving of Rs.
                 7,02,611/- out of total claimed related expenses
                 of   Rs.   70,26,110/-    without       proving       the
                 genuineness of those expenses by the assessee
                 with the support of a/c books and vouchers.

           2.    Whether on the facts and circumstances of the
                 case the Ld. CIT(A) has erred in restricting the
                 addition of Rs. 65,267/- out of total addition of
                 Rs. 6,52,573/-, in spite of the fact that the
                 assessee    himself     surrendered     this    income
                 during the course of assessment proceedings.

           3.    The appellant craves leave to amend or alter all
                 or any of the aforesaid grounds of appeal and
                 amend, alter or add any other ground of

3.     The brief facts of the case are that the assessee is
engaged in the business of operating trucks on commercial
basis under the name and style of M/s Ghaziabad Patna
Roadways. The asssessee owns 5 trucks during the F.Y. 2007-
08 relevant to A.Y. 2008-09. In the assessment order passed by
the Assessing Officer, additions have been made on account of
disallowance of expenses out of conveyance, power and fuel,
repair and maintenance, salary, staff, welfare, telephone etc. of
Rs. 7,16,117/-. The Assessing Officer also observed that there
is a    mis-match     between the TDS certificate filed by the
assessee and income shown.            As per Assessing Officer,        the

                                                           ITA NO. 1475/Del/2012

assessee has offered less receipts of Rs. 6,52,573/-, therefore,
the same were added as income to the assessee.

4.    Against the above, assessee appealed before the Ld.
CIT(A). Ld. CIT(A) after elaborate consideration gave the relief
of Rs. 7,02,611/- out of total expenses of Rs. 70,26,110/- 2 10%
on account of disallowance of various expenses and also
restricting the addition to Rs. 65,267/- on account of mis-match
in TDS certificate.

5.    Against the above order dated 10.1.2012 of the Ld. CIT(A),
Revenue appealed before us.

6.    Ld. DR relied upon the order of the AO.

7.    Ld. Counsel of the assessee relied upon the order of the
CIT(A) and requested that the same may be upheld.                         With
regard ground no. 1, Ld. Counsel of the assessee submitted
that the relief on similar ground was also given by the Ld.
CIT(A) in case of Sh. Devender Kumar, brother of the assessee
and   the   same      was   upheld       by   the   ITAT   vide     ITA    No.
469/Del/2012 (A.Y. 2008-09) 21.6.2013 in loss of original bills
was accepted to be on account of the same being stolen
proved on the basis of the same FIR.

7.1 With regard to ground no. 2, Ld. Counsel of the assessee
submitted that similar stand was taken by the assessee's
brother Sh. Devendra Kumar and the relief was granted by the
CIT(A) was not contested by the revenue in the appeal before
the ITAT.    Hence, the finding of the Ld. CIT(A) on this issue
attains finality.

                                                  ITA NO. 1475/Del/2012

8.   We have heard both the           counsel and perused the
records. We find that with regard to ground no. 1 relating to
disallowances of various expenses Rs. 7,02,611/- out the total
expenses of Rs. 70,26,110/- @ 10%, the said issue is squarely
covered by the ITAT, Delhi Bench in ITAT No. ITA No.
469/Del/2012 (A.Y. 2008-09) dated 21.6.2013 in         assessee's
brother case wherein order of the CIT(A) was                upheld.
Therefore, we do    find any infirmity in the order of the Ld.
CIT(A), hence, we affirm the same.

9.   We find that with regard to ground no. 2 relating to
challenge to the relief granted by the CIT(A) of Rs. 5,87,306/-
on account of difference in TDS as per 26AS and the TDS
claimed as per the return of income is concerned, we find that
Ld. CIT(A)'s has adopted the consistent view in the case of the
case of the asseessee's brother Devender Kumar case in ITA
No. 469/Del/2012 (A.Y. 2008-09) dated 21.6.2013. We find that
Ld. CIT(A) was correct in observing that entire receipts which
was pertaining to excess TDS credit of Rs. 13443/- in AS26
account of the assessee cannot be treated as assessee's
income.    In this line of business, the margin of profit ranges
from 8% to 10% of the receipts. Considering the same the 10%
of the additional freight receipt of Rs. 6,52,573/- is taken as
additional income which to Rs. 65,257/-.       We find that Ld.
CIT(A)'s has rightly directed the AO to tax only Rs. 65,257/-
additional income from the amount of freight pertaining to the
excess TDS credited in the account of the assessee and
accordingly, granted the relief of Rs. 5,87,316/-. In our view the

                                                 ITA NO. 1475/Del/2012

decision of the Ld. CIT(A) on this issue does not need any
interference on our part, hence, the same is upheld.

10. In the background of the aforesaid discussions and
precedent, we upheld the order of the Ld. CIT(A) on both the
issues and decide the appeal against the Revenue.

11. In the result, the Appeal filed by the Revenue          stands

     Order pronounced in the Open Court on 28/8/2014.

     Sd/-                                           Sd/-

[S.V. MEHROTRA]                                    SIDHU]
                                             [H.S. SIDHU]

Date 28/8/2014

Copy forwarded to: -
1.   Appellant -

2.   Respondent -
3.   CIT
4.   CIT (A)
5.   DR, ITAT

                         TRUE COPY
                                             By Order,

                                           Assistant Registrar,
                                           ITAT, Delhi Benches

    ITA NO. 1475/Del/2012

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