Sh. Alok Singla, Sonepat V. ITO, Sonepat

CO 37/DEL/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4268 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K JAIN
• Keywords: TDS; Set aside
• Section: 143(3); 147; 148

Judgement Text

1 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI G. D. AGRAWAL, VICE PRESIDENT AND SMT SUCHITRA KAMBLE , JUDICIAL MEMBER I.T.A .NO.-03/DEL/2014 (ASSESS MENT YEAR 2007-08) ITO WARD-3 SONEPAT (APPELLANT) VS ALOK SINGLA H. NO. 1132, SECTOR, 14 SONEPAT AZHPS3355E (RESPONDENT) C.O . NO.-37/DEL/2016 (ASSESS MENT YEAR 2007-08) ALOK SINGLA H. NO. 1132, SECTOR, 14 SONEPAT AZHPS3355E (APPELLANT) VS ITO WARD-3 SONEPAT (RESPONDENT) APPELLANT BY SH. S. K. JAIN, SR. DR RESPONDENT BY SH. GAUTAM JAIN, ADV. SH. PIYUSH KUMAR KAMAL. ADV ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 21/10/2013 PASSED BY CIT(A), ROHTAK AND THE CROSS O BJECTION IS FILED BY THE ASSESSEE. DATE OF HEARING 08.08.2016 DATE OF PRONOUNCEMENT 19.09.2016 2 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 2. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- (ITA NO.0 3/DEL/2014) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.1,81,578/- MADE BY THE A.O AS THE ASSESSEE FAILE D TO GIVE ANY RELIABLE AND SUSTAINABLE EVIDENCE IN SUPPO RT OF VARIOUS EXPENSES VIZ. TRAVELLING AND CONVEYANCE, LO ADING & UNLOADING AND FREIGHT & CARTAGES EXPENSES CLAIMED BY THE ASSESSEE AS DISCUSSED IN DETAIL BY THE A.O WHIL E FRAMING THE ASSESSMENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.49,03,790/- OUT OF TOTAL ADDITION AMOUNTING TO RS.51,35,739/- MADE ON ACCOUNT OF CONTRA ENTRIES CL AIMED BUT NOT PROVED BY THE ASSESSEE; THE LD ERRONEOUSLY CONSIDERED THE REMAND REPORT SUBMITTED BY THE A.O D URING THE 1 ST ROUND OF APPELLATE PROCEEDINGS, WHEREAS THE INSTAN T ORDER OF THE LD CIT(A) PERTAINS TO THE CASE SET AS IDE BY THE HONBLE ITAT IN ITA NO. 3544/DEL/2010 DATED 21/4/2011 TO THE FILE OF THE A.O FOR FRESH ADJUDICA TION. 3. THE GROUNDS OF APPEAL ARE AS FOLLOWS:- (C.O NO.3 7/DEL/2016) 1. THAT INITIATION OF PROCEEDINGS U/S 147 OF THE ACT AND COMPLETION OF ASSESSMENT U/S 147/143(3) OF THE ACT WITHOUT SATISFYING THE STATUTORY PROVISIONS CONTAIN ED IN THE ACT IS WITHOUT JURISDICTION AND THEREFORE DESERVES O BE QUASHED AS SUCH. 2. THAT FURTHERMORE IN ANY CASE ADDITION MADE OF RS.51,35,739/- IN THE IMPUGNED ORDER OF ASSESSMENT FRAMED U/S 147/143(3) OF THE ACT IS BEYOND THE SCOP E OF ASSESSMENT AND IS EXCESS OF JURISDICTION AND THEREF ORE UNTANABLE. 4. THE ORIGINAL ASSESSMENT U/S 143(3) OF THE INCOME TAX ACT, 1961 WAS COMPLETED ON 21/12/2009. AN ASSESSED INCO ME OF RS.7,96,73,660/- AS AGAINST THE RETURN INCOME OF RS .3,43,270/-. 3 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 THE ADDITION OF RS.7,93,40,390/- WAS DELETED BY THE CIT(A)S ROHTAK EXCEPT FOR DISALLOWING RS.70,020/-, ON ACCOUNT OF A DVERTISEMENT EXPENSES. THE ITAT ON THE DEPARTMENTS APPEAL BEFO RE IT VIDE ORDER DATED 21/04/2013 SET ASIDE THE ADDITION OF RS.51,45 ,739/- TO THE FILE OF THE ASSESSING OFFICER AND REJECTED THE OTH ER GROUNDS OF APPEAL. PRIOR TO THE ORDER OF THE ITAT IT WAS FOUN D THAT INCOME AMOUNTING TO RS.1,81,578/- HAD ESCAPED ASSESSMENT W ITHIN THE MEANING OF SECTION 147 READ WITH SECTION 148 OF THE INCOME-TAX ACT, AND THEREFORE, AFTER DULY RECORDING THE REASON S AND OBTAINING THE NECESSARY APPROVAL NOTICE U/S 148 WAS ISSUED ON 20 TH MARCH 2011. THIS AMOUNT RELATED TO EXPENDITURE ON FREIGH T, LOADING/UNLOADING AND TRAVELLING ON BEHALF OF THE C ONSIGNER TO THE REIMBURSED. 5. THE ASSESSING OFFICER WHILE PASSING THE FRESH OR DER HAS OBSERVED THAT NO DOCUMENTARY EVIDENCE HAS BEEN FURN ISHED EITHER BY THE ASSESSEE OR BY M/S LUMINOUS POWER TECHNOLOG IES PVT. LTD. THAT THE PARTICULARS GIVEN IN REGARD TO CONTRA ENTR IES ARE CORRECT. THEREFORE, THE ASSESSEE COULD NOT VERIFY THE GENUIN ENESS OF THE CONTRA ENTRIES WITH THE DOCUMENTARY EVIDENCE IN THE FORM OF ANY BILLS/INVOICES/CHEQUES ETC AND MADE ADDITION OF RS. 51,35,739/-, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE C IT(A) HELD THAT THE ASSESSEE HAS SUBMITTED COPIES OF THEIR EXPENSES ON ACCOUNT OF TRAVELLING AND CONVEYANCE, LOADING/UNLOADING AND FR EIGHT AND CARTAGES BEFORE THE CIT(A). A COPY OF AGREEMENT WITH M/S LUMINOUS POWER TECHNOLOGIES PVT. LTD. WAS ALSO FILE D BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE CIT(A). TH E ASSESSING OFFICER 4 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 IN HIS ORDER HAS NOT PROVED THAT THE SAID AMOUNTS W ERE NOT REIMBURSED BY M/S LUMINOUS POWER TECHNOLOGIES PVT. LTD. THUS, THE ASSESSEES APPEAL WAS ALLOWED ON THIS GROUND. THE CIT(A) FURTHER HELD THAT (EXTRACTS OF PARA 3 & 4 OF THE C IT(A)S ORDER):- (5) THE ENTRIES AMOUNTING TO RS.408157/- AND RS.3,509/- HAVE EFFECT ON THE ACCOUNT OF THE ASSESSEE. IN HIS PRESENT CLAIM ASSESSEE SPECIFIES THAT THE ENTRIES RELATE TO THE COMMISSION AND OTHERS WHICH WERE BEING CREDITED TO OUR ACCOUNT AND SIMULTANEOUSLY REVERSED BECAUSE COMPANY HAD ISSUED CHEQUES FOR THE SAME. THE CHEQUES HAVE ALREADY BEEN ACCOUN TED FOR IN OUR ACCOUNTS IN VARIOUS HEADS. THIS VERSION OF TH E ASSESSEE HAS ALSO BEEN EXAMINED AND IT IS FOUND THAT THE M/S LUMINOUS POWER TECHNOLOGIES PVT. LTD SAID IN ITS CERTIFICATI ON DATED 26/4/2010 THAT RS.4,08,157/- BELONGS TO THE COMMISS ION WHILE THE ASSESSEE IN ITS SUBMISSION AND ITS ANNEXURE DAT ED 6/5/2010 STATED THAT THE ENTRIES AMOUNTING TO RS.4, 08,157/- RELATES TO INTEREST ON SECURITY AT RS.55,487/- (9.5 .2006); COMMISSION RECEIVED RS.43,917/-; REIMBURSEMENT OF E XPENSES RS.46,527/- ; SALARY TO RS.3,500/- REIMBURSEMENT O F EXPENSES RS.82,518/-; COMMISSION AND BROKERAGE RS.82,518/- (29.06.2006); AND RS.93,8=690/- (01.08.2006). THE VERSION OF THE ASSESSEE HAS BEEN EXAMINED AND IT IS SEEN THAT THE ENTRIES OF COMMISSION AMOUNTING TO RS.82,518/- (INCLUDING R DS) AND RS.93,690/- (INCLUDING TDS) HAVE BEEN FOUND TO BE G ENUINE. THE A.O HAS ALSO STATED THAT A BALANCE OF RS.231949 /- HAS BEEN CERTIFIED BY M/S LUMINOUS POWER TECHNOLOGIES P VT. LTD AS COMMISSION ENTRIES WHILE THIS HAS NOT BEEN STATED T O BE SO IN THE BOOKS OF THE ASSESSEE. 4. I HAVE CONSIDERED THE A.OS REMAND REPORT AS WEL L AS THE ASSESSEES SUBMISSIONS AND REPLY TO THE REMAND REPO RT. THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THAT THE SUM OF RS.2,31,949/- WAS ANYTHING WHAT COMMISSION ENTRIES. THEREFORE, THIS AMOUNT OF RS.2,31,949/- OUT OF AN A DDITION OF RS.51,35,739/- STANDS CONFIRMED. THIS GROUND OF AP PEAL IS PARTLY ALLOWED. 5 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 6. THE LD. DR RELIED ON THE ORDER OF THE ASSESSING OFFICER HELD THAT THE ASSESSEE COULD NOT MADE ANY ATTEMPT TO PRO DUCE THE DOCUMENT BEFORE THE ASSESSING OFFICER. HENCE, CIT( A) WAS NOT CORRECT IN ALLOWING THE APPEAL OF THE ASSESSEE. 7. THE LD. AR SUBMITTED THAT IN THE REMAND REPORT I TSELF EXPENSES WERE ADMITTED BY THE ASSESSING OFFICER TO THE EXTENT OF 4,08,157/-. THUS, MAKING ADDITION OF RS.51,35,739/ - WAS NOT CORRECT ON PART OF THE ASSESSING OFFICER. THE CIT( A) HAS TAKEN PROPER COGNIZANCE OF THE SAME. THE ASSESSEE PRODUC ED ALL THESE DOCUMENTS RELATED TO VARIOUS EXPENSES VIDE TRAVELLI NG AND CONVEYANCE LOADING/UNLOADING AND FREIGHT AND CARTAG ES EXPENSES. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ASSESSEE PRODUCED ALL THE RELEVANT DOCUMENTS BEFORE THE ASSESSING OFFICER. THE CIT(A) HAS CORRECTLY DEALT THE ISSUE. IN FACT, IN THE REMAND REPORT ITS ELF THE EXPENSES INCURRED CLEARLY STATED OUT TO RS.4,08,157/- AND CI T(A) HAS GIVEN A CLEAR FINDING BY DISALLOWING RS.2,31,949/- TO THAT EXTENT. THERE IS NO REQUIREMENT FOR INTERFERING THE WELL REASONED OR DER OF THE CIT(A). 9. IN RESULT, APPEAL IS DISMISSED. C.O OF THE ASSE SSEE IS DISPOSED OFF. THE ORDER IS PRONOUNCED IN THE OPEN COURT 19 TH OF SEPTEMBER, 2016. SD/- SD/- (G. D. AGRAWAL) (S UCHITRA KAMBLE) VICE PRESIDENT JUD ICIAL MEMBER 6 IT A NO. 3/DEL/2014 & C.O 37/DEL/2016 DATED: 19/09/2016 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 08.07.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 08.08.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2016 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS .0 9 .2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 1 9 .0 9 .2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.