IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA No.6001/Del/2016 Assessment Year: 2010-11 M/s. Dynamic Engineers ACIT 62-C, Sahipur Village,, Vs Circle 19 (1) Shalimar Bagh, New Delhi New Delhi-110088 (APPELLANT) (RESPONDENT) Appellant by Sh. Vinay Bahl, CA Respondent by Ms. Ashima Neb, Sr. DR Date of hearing: 28/08/2019 Date of Pronouncement: 13/09/2019 ORDER PER R.K. PANDA, AM: This appeal filed by assessee is directed against order dated 22.09.2016 of CIT(A)-2, New Delhi relating to A. Y. 2010-11. 2. Facts of case, in brief, are that assessee is partnership firm engaged in business of manufacturing and trading of electrical, Electronics, Refrigeration and Air conditioning parts. It filed its return of income on 13.10.2010 declaring total income of Rs.1,69,97,990/-. Assessing Officer completed assessment u/s 143 (3) determining total income at Rs.2,25,48,120/- wherein he made addition of Rs.46,77,200/- on account of suppression of profit, Rs.1,16,223/- u/s.14 read with Rule 8 D and Rs.7,56,704/- on account of rebates and discounts. 3. During course of appeal proceedings Ld. CIT(A) asked assessee to produce books of account in order to examine claim of assessee. It was submitted to Ld. CIT(A) that books were stolen and therefore, could not be produce. 4. Ld. CIT(A) noted from assessment record that assessee had produced copy of ledger account etc in its submission dated 24.01.2013 and, therefore, it is apparent that assessee was maintaining books of account. On being questioned by CIT(A) as to whether accounts were being maintained in computer software it was submitted that assessee was maintaining accounts in computer software. However, they do not have any record and printed copy of same has been stolen. Ld. CIT(A) observed that when assessee is maintaining accounts on computer, therefore, it is impossible that they are not having any copy of same. He, therefore, held that submission of assessee cannot be examined in absence of books of account. He also rejected claim of assessee that there was no need of having backup of records especially when income tax proceedings were still pending in case of assessee. He, therefore, upheld addition made by Page | 2 Assessing Officer on account of estimation of net profit. So far as disallowance made by Assessing Officer u/s.14A read with Rule 8 D is concerned Ld. CIT(A) directed Assessing Officer to restrict disallowance to 67,139/- as against Rs.1,16,223/- disallowed by Assessing Officer. He, however, upheld addition of Rs.7,56,704/- made by Assessing Officer out of rebate and discount. 5. Aggrieved with such order of CIT(A), assessee is in appeal before Tribunal by raising following grounds:- 1. That order passed u/s. 143 (3) of Act dated 08.03.2013 by ACIT, Circle 19 (1), New Delhi and orders passed by CIT(A)-XII, New Delhi dated 22.09.2016 are bad in law and against facts of case. 2. That Assessing Officer was incorrect to make following disallowances, without proper appreciation of facts of case and evidences on record furnished by appellant:- On account of Amount (Rs.) A. Para 1 of Asstt. Order Net Profit 46,77,200 B. Para 2 of Asstt. Order disallowance U/s. 1,16,223 14A C. Para 3 of Asstt. Order Rebate & discount 7,56,704 Total 55,50,127 3. That detailed statement of facts and submissions shall be filed before date of hearing. 4. That appellant craves to add, amend, alter, withdraw any ground of appeal. 6. Ld. Counsel for assessee at outset filed copy of FIR filed on 21.04.2015 for lost bag containing account Page | 3 records of assessee. He submitted that assessee in mean time has reconstructed its books of account and given opportunity assessee is in position to produce same either before Assessing Officer or before CIT(A). He accordingly submitted that matter may be set aside to file of Assessing Officer or CIT(A) as case may be since addition was sustained by CIT(A) mainly on account of non production of books of account. 7. Ld. DR on other hand strongly supported order of CIT(A) and submitted that appeal filed by assessee should be dismissed since books of account so reconstructed now cannot be relied upon. 8. We have considered rival arguments made by both sides and perused orders of authorities below. We find as against returned income of Rs.1,69,97,990/-, Assessing Officer completed assessment on total income of Rs.2,25,48,120/- by making three additions totaling to Rs.55,50,127/-, details of which have already been given at paragraph 2 of this order. We find Ld. CIT(A) asked assessee to produce books of account, however, assessee failed to produce same on ground that books of account were stolen. We find Ld. CIT(A) sustained addition of Rs.46,77.200/- made by Assessing Officer on account of estimating net profit and Rs.7,56,704/-out of rebate and discount. He, however, restricted disallowance made by Assessing Officer u/s.14A read with Rule 8 D to Rs.67,139/-as against Rs.1,16,223/- disallowed by Page | 4 Assessing Officer. It is submission of Ld. Counsel for assessee that books of account were stolen for which FIR has been lodged. It is also his submission that assessee in mean time has reconstructed its books of account on basis of various details available with it and therefore given opportunity, assessee is in position to substantiate its case before any of lower authorities. Considering totality of facts of case and in interest of justice we deem it proper to restore issue to file of Ld. CIT(A) with direction to grant one more opportunity to assessee to substantiate its case and decide issue as per fact and law. grounds raised by assessee are accordingly allowed for statistical purpose. 9. In result, appeal filed by assessee is allowed for statistical purpose. Order pronounced in open court on 13.09.2019. Sd/- Sd/- (SUCHITRA KAMBLE) (R.K PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER *Neha* Date:-13 .09.2019 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Page | 5 Date of dictation 28.08.2019 Date on which typed draft is placed before dictating 29.08.2019 Member Date on which approved draft comes to Sr.PS/PS Date on which fair order is placed before Dictating Member for Pronouncement Date on which fair order comes back to Sr. PS/ PS Date on which final order is uploaded on website of ITAT Date on which file goes to Bench Clerk Date on which file goes to Head Clerk. date on which file goes to Assistant Registrar for signature on order Date of dispatch of Order Page | 6 Dynamic Engineers v. ACIT, Circle-19(1), New Delhi