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Sh. Nishit Saxena Versus ITO, Ward 27 (3) , New Delhi

2017 (1) TMI 562 - ITAT DELHI

Reopening of assessment - reasons to believe - difference in TDS certificate and receipts shown in the P&L account - Held that:- In light of the ratio laid down by in the case of CIT vs. Orient Craft Ltd. (2013 (1) TMI 177 - DELHI HIGH COURT) find that the above decision would be squarely applicable in the present case because no fresh material is brought by the Revenue on record but the assessment has been reopened on the basis of the Form 26AS and the TDS certificate issued by the employer of .....

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- ITA No. 2971/Del/2016 - Dated:- 3-1-2017 - Shri H. S. Sidhu, Judicial Member Appellant by : Sh. Ved Jain, CA & Sh. Ashish Chadha, CA Respondent by : Anil Kumar Sharma, Sr. DR ORDER This appeal filed by the Assessee against the Order dated 18.12.2015 passed by the Ld.CIT(A)-15, New Delhi for Assessment Year 2009-10 on the following grounds:- 1. On the facts and circumstances of the case, the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad both in the ey .....

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order of the AO rejecting the contention of the assessee that the reason recorded for reopening of the assessment are bad in law, and as such the reopening of the assessment is illegal and liable to be quashed. 3. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law in upholding the reopening of assessment done by the AO, without there being any live nexus between the reasons recorded and the belief formed by the assessing officer that any income has .....

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A) has erred in confirming the said addition despite the fact that the banquet tip income received by the assessee is on account of the reimbursement of various expenses incurred by the assessee. 5. The appellant craves leave to add, amend or alter any of the grounds of appeal. 2. The brief facts of the case are that the return of Income was filed on 24.09.2009 declaring an income of ₹ 3,95,432/-. The assessee is employed in the Hotel ITC Maurya, New Delhi, The main sources of Income are s .....

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s per AO, there was a short declaration of salary income by ₹ 11,03,O54/-. Information were also sought by AO from ITC Maurya, the employer who informed that the other income included "Banquet Tips" which showed that the amount of ₹ 9,33,420/- was also paid by the employer to the assessee. In view of this discrepancy, the case was reopened as per provisions of Section 147 of the Act and notice u/s 148 was issued on 16.12.2012. The reasons recorded for reopening the assessme .....

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sessee. In the profit and loss account against the aforesaid receipts. In reply, assessee explained that he was handling banquet services which included services like hiring of bar tenders, flower decoration services, hiring of casual staff and renting of equipment etc. It was further explained that against the aforesaid receipts, expenses have been incurred by assessee which are not in the knowledge of employer, the ITC Maurya. The assessee also objected to the reopening of assessment proceedin .....

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there are no corresponding withdrawals as per bank statements filed by assessee on the dates on which the payments are stated to be made. It is also observed by AO that the information called for from ITC Maurya confirmed that the amount of ₹ 9,33,420/- as mentioned in Form No. 16 was on account of banquet services and they were not aware If the employee concerned had incurred any expenses against this banquet service charges amount. In view of this, AO concluded that banquet service charg .....

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; 14,37,819/- vide his order dated 14.3.2014 passed u/s. 143(3)/147 of the I.T. Act, 1961. 3. Against the aforesaid assessment order, assessee preferred an appeal before the Ld. CIT(A), who vide his impugned order dated 18.12.2015 has dismissed the appeal of the assessee. 4. Aggrieved with the order of the Ld. CIT(A), assessee is in appeal before the Tribunal. 5. At the time of hearing Ld. Counsel for the assesse stated that CIT(A) has erred both on facts and in law in confirming the order of th .....

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ashed. He further stated that Ld. CIT(A) has erred, both on facts and in law in upholding the reopening of assessment done by the AO, without there being any live nexus between the reasons recorded and the belief formed by the assessing officer that any income has escaped assessment. To support this contention he relied upon the Hon ble Delhi High Court decision in the case of CIT vs. Orient Craft Ltd. 354 ITR 536 (Delhi). Ld. Counsel of the assessee further stated that AO has grossly erred in r .....

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lowing Tribunal s decisions:- i) Rafeeq Iqbal vs. ITO (ITAT, Hyderabad) - ITA No. 709/Hyd/2013 dated 13.9.2013. - 2013 (11) TMI 8 - ITAT Hyderabad. ii) Meheria Reid & Co. vs. ITO ITA No. 53 & 54 Kol of 2010 dated 28.12.2012 - 2013 (2) TMI 348 - ITAT Kolkata. iii). M/s Krishna Reddy Contractors vs. ITO - ITA No. 1347/Hyd/2013 dated 30.6.21014 - 2014 (7) TMI 644 - ITAT Hyderabad. 6. On the other hand, Ld. DR relied upon the orders of the authorities below and requested that the appeal of t .....

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ssessment done by the AO, without there being any live nexus between the reasons recorded and the belief formed by the assessing officer that any income has escaped assessment. For the sake of convenience, the contents of the reasons recorded are reproduced as under:- Reasons for the belief that the income has escaped assessment in the case of Sh. Nishit Saxena (PAN: ANZPS6159C) for the assessment year 2009-10. Paper return of income for AY 2009-10 was filed by Sh. Nishit Saxena (PAN ANZPS6159C) .....

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ovided by the deductor of tax in its TDS return, for financial year 2008-09 relevant to the assessment year 2009-10 the amount of total tax deducted was ₹ 3,74,755/- out of total payments covered u/s. 192B of the I.T. Act i.e. salary payments amounting to ₹ 13,91,076/-. Therefore, there is short declaration of salary income of ₹ 11,03,054/- . Perusal of the form no. 16 issued by ITC Ltd. to the assessee for financial year 2008-09 relevant to the assessment year 2009-10 total in .....

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8 of the Income Tax Act, 1961. Date: 14-11-2012 Sd/- (Ombir Singh) Income tax Officer, Ward 27(3), New Delhi 7.1 After going through the orders passed by the Revenue Authorities and the arguments advanced by the Ld. Counsel for the Assessee, reasons recorded by the AO and the judgments cited by the assessee in the case of CIT vs. Orient Craft Ltd. 354 ITR 536 (Delhi), I find that in this case the Hon ble has held as under (Head Notes):- Held, dismissing the appeal, that the reasons disclosed tha .....

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