Nisha Metal, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Central Circle-5, RAJKOT-GUJARAT

CO 15/RJT/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8806 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 1 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-07-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 08-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: SG BHUPTANI
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3); 194C; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT BEFORE SHRI T K SHARMA, JM AND SHRI D K SRIVASTAVA, AM ITA NO. 39 /RJ T/201 2 ASSESSMENT YEAR : 2006 - 07 ITO, WARD 5(2), RAJKOT V. M/S. NISHA METAL, STREET OF PIPALIYA HALL OPP. GELMA DAIR Y FARM, ATIKA, RAJKOT PAN : AABFN 8653 P C.O. NO. 15/RJT/2012 ASSESSMENT YEAR 2006 - 07 M/S. NISHA METAL, RAJKOT V. ITO, WARD 5(2), RAJKOT DATE OF HEARING : 23 .0 7 .2013 DATE OF PRONOUNCEMENT : 31 .0 7 .2013 REVENUE BY : SHRI AVINASH KUMAR, DR ASSESSEE BY : SHRI S G BHUPTANI, CA ORDER D K SRIVASTAVA : THIS ORDER IS BEING PASSED IN COMPLIANCE WITH THE DIRECTIONS GIVEN BY THE HONBLE J URISDICTIONAL HIGH COURT IN ITS JUDGMENT DATED 02.05.2013 IN CIT V. SIKAN DARKHAN N TUNVAR & OTHERS. 2. THE ASSESSEE IS A FIRM. IT IS ENGAGED IN THE BUSINESS OF TRADING IN SPARES. RETURN OF INCOME WAS FILED ON 26.03.2007 RETURNING THE TOTAL INCOME AT RS.1,27,650/ - PURSUANT TO WHICH ASSESSMENT U/S 143(3) OF THE INCOME - TAX ACT WA S COMPLETED ON 29.12.2008 ASSESSING THE TOTAL INCOME OF THE ASSESSEE AT RS.1,48,570/ - . NOTICE U/S 147/148 WAS SUBSEQUENTLY ISSUED ON 22.02.2010 PURSUANT TO WHICH ORDER OF RE - ASSESSMENT WAS PASSED BY THE ASSESSING OFFICER U/S 143(3)/147 ON 30.12.2010 ASSESS ING THE TOTAL INCOME OF THE ASSESSEE AT RS.43,53,010/ - , AFTER DISALLOWING A SUM OF RS.42,04,438/ - U/S 40(A)(IA). 3. PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE HAD CLAIMED TO HAVE INCURRED EXPENSES AMOUNTING TO RS.42,04,438/ - ON TRANSPORTATION. IT WAS THE CASE OF THE ASSESSING OFFICER THAT THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE U/S 194C OUT OF THE AFORESAID PAYMENT. THE ASSESSING OFFICER NOTICED THAT THAT THE TAX REQUIRED TO BE DEDUCTED AT SOURCE U/S 194C WAS NOT DEDUCTED BY THE ASSESSEE. HE THEREFORE DISALLOWED THE SAID SUM OF RS.42,04,438/ - U/S 40(A)(IA) WITH THE FOLLOWING OBSERVATIONS: - 2 629 - RJT - 2012 MONARCH FOUNDRY PVT LTD 5. THE ASSESSEE WAS ASKED FOR PROVIDING COPY OF ACCOUNT FROM HIS BOOKS OF ACCOUNT AND TO CLARIFY THE MATTER ALONG WITH SUPPORTING EVIDENCE I.E. BILLS, RE CEIPTS, VOUCHERS AND PARTY WISE TRANSACTION BUT THE ASSESSEE DOES NOT ABLE TO PROVIDE THE SAME WITHIN STIPULATED TIME. THE ASSESSEE HAS NOT GIVEN ANY SUBMISSION TILL DATE NORE FILLED RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT. THE ASS ESSEE HAS MADE TRANSPORT EXPENSES OF RS.42,04,438/ - AND NO TDS THEREON IS MADE THIS BRING THE ASSESSEE IN THE AMBIT OF PROVISION OF SECTION 194C WHICH IS AS UNDER. AT THE TIME OF CREDIT OR PAYMENT WHICH EVER IS EARLIER WHERE THE AMOUNT OF SOME CREDITED O R PAID EXCEED RS.20,000/ - THE TDS @ 2% IS REQUIRED TO BE MADE AND NON DEDUCTION OF TAX THE CLAIMED OF EXPENDITURE OF THE ASSESSEE IS DISALLOWABLE AND THEREFORE I HERE BY ADD BACK RS.42,04,438/ - TO HIS RETURN OF INCOME AND INITIATE PENALTY U/S 271(1)(C) OR CONCEALMENT OF INCOME TO THE TURN OF RS.42,04,438/ - . 6. IN VIEW OF ABOVE DISCUSSION AND FACTS OF THE CASE AND VALUABLE DIRECTION OF ADDL. CIT, RANGE - 5, RAJKOT. I CAME TO THE CONCLUSION THAT THE PROVISION OF SECTION 194C APPLICABLE TO THIS CASE AND CONTRAV ENTION OF THIS SECTION LEADS TO DISALLOWANCE U/S 40(A)(IA) OF THE ACT. FURTHER ON VERIFICATION OF THE TRANSPORT EXPENSE AMOUNT ON RECORD NO TDS MADE IS FOUND THEREIN. 4. ON APPEAL BY THE ASSESSEE, THE LD CIT(A) RESTRICTED THE IMPUGNED DISALLOWANCE TO RS . 1,12,887/ - WITH THE FOLLOWING OBSERVATIONS: - 6. I HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMISSIONS OF APPELLANT AND ASSESSING OFFICER. ASSESSING OFFICER REPORTED AFTER SUBMISSION AND ADMISSION OF ADDITIONAL EVIDENCE BY THE APPELLANT IN RESPECT OF TRAN SPORTATION CHARGES THAT PAYMENTS OF RS.42,04,438/ - WERE MADE TO DIFFERENT TRUCK OWNERS. ASSESSING OFFICER SUBMITTED THAT IN CASE OF TRUCK NUMBER GJ - 3Y - 8849 THE TOTAL PAYMENT IN ONE YEAR WAS RS.53,235/ - AND IN CASE OF TRUCK NUMBER AP - 21W - 3848 THE TOTAL PAYM ENT IN ONE YEAR WAS RS.59,652/ - . THE INDIVIDUAL PAYMENTS TO ALL TRUCKS ARE BELOW RS.20,000/ - . THE APPELLANT HAS ACCEPTED THAT THERE IS A DEFAULT IN DEDUCTING TDS ON A SUM OF RS.1,12,887/ - 3 629 - RJT - 2012 MONARCH FOUNDRY PVT LTD U/S 194C OF THE INCOME - TAX ACT. THEREFORE I DIRECT THE ASSESSING OFF ICER TO RESTRICT THE DISALLOWANCE U/S 40(A)(IA) TO RS.1,12,887/ - . 5. AGGRIEVED BY THE ORDER PASSED BY THE LD CIT(A), THE REVENUE FILED APPEAL BEFORE THIS TRIBUNAL WHICH WAS DISMISSED VIDE ORDER DATED 31.07.2012 WITH THE FOLLOWING OBSERVATIONS: - 8. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THEIR SUBMISSIONS. PERUSAL OF THE APPELLATE ORDER PASSED BY THE CIT(A) SHOWS THAT THE AO HIMSELF HAS REPORTED TO THE CIT(A) THAT INDIVIDUAL PAYMENTS TO ALL TRUCKS (EXCEPT TWO TRUCKS) WERE BELOW RS.20,000 / - AND HENCE TAX WAS NOT REQUIRED TO BE DEDUCTED AT SOURCE AND RESULTANTLY THE IMPUGNED DISALLOWANCE WAS UNCALLED FOR. THE LD CIT(A) HAS THUS DECIDED THE ISSUE ON THE BASIS OF REPORT SUBMITTED BY THE AO TO HIM. AT THE TIME OF HEARING BEFORE US ALSO, THE DE PARTMENT COULD NOT REBUT THE AFORESAID FACT RECORDED IN THE ORDER OF THE CIT(A). IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE CIT(A) IS CONFIRMED. RESULTANTLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. THE ISSUE IN THE PRESENT APPEAL BEFORE US IS A NARROW COMPASS . THE ONLY ISSUE THAT IS REQUIRED TO BE CONSIDERED IS WHETHER THE ORDER OF LD . CIT(A) ON THE FACTS OF THE CASE SHOULD BE CONFIRMED OR NOT. AS ALREADY STATED BY US IN OUR ORDER DATED 31.07.2012, THE FINDINGS RECORDED BY THE LD CIT(A) WERE NOT REBUTTED BY THE LD . DEPARTMENTAL REPRESENTATIVE. THE SAME POSITION CONTINUOUS EVEN NOW. IN THIS VIEW OF THE MATTER, THE ORDER PASSED BY THE LD CIT(A) IS CONFIRMED. RESULTANTLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 7. AT THE TIME OF HEAR ING, THE LD . AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE DID NOT PRESS THE CROSS - O BJECTIONS. THE M EMORANDUM OF CROSS - O BJECTIONS IS THEREFORE DISMISSED AS NOT PRESSED. 8. IN VIEW OF THE FOREGOING, THE APPEAL FILED BY THE REVENUE AND THE MEMORANDUM OF THE C ROSS O BJECTIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 31 . 0 7 . 201 3 SD/ - SD/ - (T. K. SHARMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT: 31 .0 7 .2013 B T 4 629 - RJT - 2012 MONARCH FOUNDRY PVT LTD COPY OF ORDER FORWARDED TO: - 1 . APPELLAN T ITO, WARD 5(2), RAJKOT 2 . RESPONDENT - M/S. NISHA METAL, STREET OF PIPALIYA HALL, ATIKA, RAJKOT 3 . CONCERNED CIT - III , RAJKOT 4 . CIT(A) - IV , RAJKOT 5 . DR, ITAT, RAJKOT 6 . GUARD FILE. BY ORDER TRUE COPY PRIVATE SECRE TARY, ITAT, RAJKOT