Jayendra S. Shetti., Belagavi V. The Income Tax Officer, Ward-1 (4), Belagavi., Belagavi

CO 107/PAN/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4332 (ITAT-PANAJI)
• Duration Of Justice: 29 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 22-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAVIRAJ Y V
• Keywords: Additional evidence
• Section: 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 121 /P A N/201 6 (ASST. YEAR : 20 08 - 09 ) ITO, WARD - 1(4), BELAGAVI. VS. SHRI JAYENDRA S. SHETTI, PROP : BHAVANA SALES CORPORATION, STEEL & CEMENT DEALERS, UGARKHURD , TQ : ATHANI, BELAGAVI. PAN NO. ABNPS 1009 H (APPELLANT) (RESPONDENT) C.O.NO. 107/PAN/2016 ( ITA NO. 121 /P A N/201 6) (ASST. YEAR : 20 08 - 09 ) SHRI JAYENDRA S. SHETTI, PROP :BHAVANA SALES CORPORATION, STEEL & CEMENT DEALERS, UGARKHURD, TQ : ATHANI, BELAGAVI. VS. ITO, WARD - 1(4), BELAGAVI. PAN NO. ABNPS 1009 H (APPLICANT ) (RESPONDENT) ASSESSEE BY : SHRI PRAKASH HEGDE C A DEPARTMENT BY : SHRI RAVIRAJ Y.V. - DR DATE OF HEARING : 20 / 0 9 /201 6 . DATE OF PRONOUNCEMENT : 20 / 0 9 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER ITA NO. 121/PAN/2016 IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , BELAGAVI , IN APPEAL NO. 632/BGM/2010 - 11, DATED 28 /0 4 /201 6 FOR THE ASSESSMENT YEAR 2008 - 09 AND C.O. NO.107/PAN/2016 IS A CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUES AP PEAL. 2 ITA NO. 121/PAN/2016 C.O.NO.107/PAN/2016 2. SHRI RAVIRAJ Y.V. , STANDING COUNSEL REPRESENTED ON BEHALF OF THE REVENUE AND SHRI SHRI PRAKASH HEGDE, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 3 . IT WAS SUBMITTED BY THE STANDING COUNSEL THAT IN THE REVENUES APPEAL, THE REVENUE HAS CHALLENGED THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN ADMITTING THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962 . IT WAS SUBMITTED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT IN THE CROSS OBJECTION, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE ADDITIONS REPRESENTING THE CASH PAYMENTS MADE TO THE SUNDRY CREDITO RS AND T HE ADDITION IN RESPECT OF THE AMOUNTS PAYABLE TO THE SUNDRY CREDITORS . I T WAS SUBMITTED BY THE STANDING COUNSEL ON B E HA L F OF THE REVENUE THAT THE BOOKS OF ACCOUNTS OF THE ASSESSEE, WHICH WERE AUDITED HAD BEEN RECAST AND ON THE BASIS OF THE RECAST B OOKS OF ACCOUNTS, THE COMMISSIONER OF INCOME TAX (APPEALS) HAD DELETED THE ADDITIONS IN RESPECT OF THE DIFFERENCE BETWEEN THE BALANCE SHOWN IN THE CREDITORS ACCOUNTS AS PER THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND THE CONFIRMATIONS PROVIDED BY THE CREDITORS. IT WAS THE SUBMISSION THAT COMMISSIONER OF INCOME TAX (APPEALS) HAD DELETED THE ADDITION ON THE GROUND THAT PAYMENTS HAVE BEEN MADE THROUGH ACCOUNT PAYEE CHEQUES AND THROUGH BANKING CHANNEL S AND THE PAYMENTS APPEARED IN THE BANK STATEMENTS IN RESPECT OF THE CREDITORS. IT WAS THE SUBMISSION THAT IN RESPECT OF SUCH CREDITORS WHERE THE PAYMENTS HAVE BEEN MADE BY CASH AND WHERE THE PAYMENTS WERE SHOWN AS PAYABLE, COMMISSIONER OF INCOME TAX (APPEALS) DID NOT GRANT RELIEF, AGAINST WHICH THE ASSESSEE HAS FILED THE CROSS OBJECTION. IT WAS THE SUBMISSION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HAS VIOLATED THE PROVISIONS OF RULE 46A OF THE IT RULES, 1962 INSOFAR AS HE HAS ENTERTAINED THE RECAST BOOKS OF ACCOUNTS WITHOUT VERIFYI NG THE ADJUSTMENTS THAT TOOK - PLACE IN THE PROFIT & LOSS ACCOUNT S. IT WAS THE 3 ITA NO. 121/PAN/2016 C.O.NO.107/PAN/2016 SUBMISSION THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) INSOFAR AS RELIEF WAS GRANTED WAS LIABLE TO BE REVERSED. 4 . IN REPLY, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE PAYMENTS HAD BEEN MADE THROUGH BANKING CHANNELS AND WERE ALSO REFLECTED IN THE CREDITORS BANK STATEMENTS. IT WAS THE FURTHER SUBMISSION THAT THE CASH PAYMENTS MADE TO THE CREDITORS WE RE ALSO RECORDED IN THE BOOKS AND WERE LIABLE TO BE ALLOWED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERUSAL OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) CLEARLY SHOWS THAT COMMISSIONER OF INCOME TAX (APPEALS) HAS GONE THROUGH THE RECAST BOOKS OF ACCOUNTS OF THE ASSESSEE. THOUGH, IT IS NOTICED THAT RECAST BOOKS OF ACCOUNTS HAD BEEN SENT TO THE ASSESSING OFFICER FOR REMAND REPORT , IT IS NOTICED THAT THE ASSESSING OFFICER HAS REITERATED HIS STAND MADE IN THE ASSESSMENT ORDER . T HIS HAS NOT BEEN REBUTTED BY THE COMMISSIONER OF INCOME TAX (APPEALS). IN RESPECT OF THE ASSESSEES CROSS OBJECTION, THE ASSESSEE HAS ALSO BEEN SAYING THAT THEY ARE IN A POSITION TO PROVE THE PAYMENTS MADE TO THE CREDITORS. THIS BEING SO, IN THE INTEREST OF JUSTICE AND FAIR PLAY , WE ARE OF THE VIEW THAT THE ISSUES IN BOTH THE REVENUES APPEAL AND THE ASSESSEES CROSS OBJECTION ARE LIABLE TO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNIT Y TO SUBSTANTIATE HIS CASE AND WE DO SO. 6 . IN THE RESULT, APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE SHALL STAND PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 20 TH DAY OF SEPTEMBER , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 20 TH SEPTEMBER , 201 6 . 4 ITA NO. 121/PAN/2016 C.O.NO.107/PAN/2016 VR/ - COPY TO: 1 . THE ASSESSEE. SHRI JAYENDRA S. SHETTI, PROP : BHAVANA SALES CORPORATION, STEEL & CEMENT DEALERS, UGARKHURD , TQ : ATHANI, BELAGAVI. 2 . THE REVENUE. ITO, WARD - 1(4), BELAGAVI. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI