SHYAM SUNDAR VASISHTA , BERMO V. ACIT CIRCLE-2(1), HAZARIBAG

ITA 103/RAN/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0624 (ITAT-RANCHI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 17-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: S S AGARWAL; DEBASIS SONNIGRAHI
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 194C

Judgement Text

1 ITA NO. 103 /RAN/20 1 8 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE SHRI N.S.SAINI , ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO. 103 / RAN/20 1 8 ASSESSMENT YEAR : 20 1 1 - 201 2 SHYAM SUNDAR VASISHTHA, KATHARA, BERMO V S ACIT, CIRCLE - 2(1), HAZARIBAGH PAN NO. : A CBPV 4766 D (APPELLANT ) .. RESPONDENT ASSESSEE BY : SHRI DEBASIS SONNIGRAHI , CA & S. S. AGARWAL, ADVOCATE REVENUE BY : SHRI A.K.MOHANTY , J CIT DATE OF HEARING : 2 9 . 11 .201 8 DATE OF PRONOUNCEMENT : 30 . 11 .201 8 O R D E R PER PAVAN KUMAR GADALE, JM : THE ASSESSEE HA S FILED THE APPEAL AGAINST THE ORDER OF CIT(A), HAZARIBAGH , DATED 14.02.2018 FOR THE ASSESSMENT YEAR 201 1 - 201 2 , WHEREIN THE FOLLOWING GROUNDS HAVE BEEN R AISED BY THE ASSESSEE : - 1. FOR THAT THE REASSESSMENT ORDER OF THE LEARNED ASSESSING OFFICER U/S 147/143(3) IS ERRONEOUS IN LAW, FACT AND PROCEDURE. 2. FOR THAT THE INITIATION OF REASSESSMENT PROCEEDINGS DUE TO CHANGE OF OPINION IS AGAINST THE PROVI SIONS OF LAW AND WELL SETTLED BY VARIOUS JUDICIAL PRONOUNCEMENT AND FOR THAT THE ORDER OF THE LEARNED ASSESSING OFFICER DATED 06 - 12 - 2017 PASSED U/S 147/143(3) OF INCOME TAX ACT IS NOT VALID AND LIABLE TO BE CANCELLED. 3 FOR THAT THE ACTION OF HONORABLE CO MMISSIONER OF INCOME TAX (APPEALS) HAZARIBAGH FOR DISMISSAL OF APPEAL OF THE APPELLANT ON TECHNICAL GROUND WITHOUT GIVING ANY OPPORTUNITY TO THE APPELLANT TO REMOVE THE ALLEGED INSUFFICIENCY IS NOT LEGAL, PROPER, JUSTIFIED AND AGAINST THE PRINCIPLES OF NAT URAL JUSTICE. 2 ITA NO. 103 /RAN/20 1 8 4 FOR THAT THE ACTION OF THE LEARNED ASSESSING OFFICER FOR MAKING ADDITION OF RS. 2,77,96,459/ - BY DISALLOWING RS. 2,41,45,693/ - UNDER THE HEAD TRANSPORTATION CHARGE RS. 32,07,707/ - , UNDER THE HEAD MACHINE HIRE CHARGE AND ALSO RS. 4,43,059/ - UNDE R THE HEAD MACHINE HIRE CHARGE WITHOUT CONSIDERING THE FACT AND RECORDS, SUBMISSION OF THE APPELLANT AND IGNORING THE RELEVANT PROVISIONS OF THE ACT IS NOT LEGAL, PROPER AND JUSTIFIED ACCORDINGLY THE ADDITION IS LIABLE TO BE DELETED. 5 FOR THAT THE APPELL ANT CRAVES AND LEAVES TO TAKE ADDITIONAL GROUND/GROUNDS AT OR BEFORE THE TIME OF HEARING 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN CIVIL AND TRANSPORTING CONTRACT BUSINESS AND FILED THE RETURN OF INCOME ON 28.10.2013 FOR THE ASSESSMEN T YEAR 201 1 - 201 2 DECLARING TOTAL INCOME OF RS. 28,00,985/ - . THE AO COMPLETED THE ASSESSMENT U/S.143(3) AND ASSESSED THE TOTAL INCOME OF RS.29,28,630/ - VIDE ORDER DATED 02.05.2014. LATER THE CASE WAS REOPENED AND THE ASSESSMENT WAS COMPLETED U/S.147/143(3) A ND ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS.3,07,25,089/ - BY MAKING ADDITION BY WAY OF DISALLOWANCE OF RS.2,73,53,400/ - FOR VIOLATION OF PROVISIONS OF SECTION 194C OF THE ACT BEING TRANSPORTING CHARGES OF RS.2,41,45,693/ - AND SECTION 194I BEING MACH INE HIRE CHARGES OF RS.32,07,707/ - AND U/S.40A(3) BEING CASH PAYMENT OF RS.4,43,059/ - . 3 . AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). HOWEVER, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE OBSERVING THAT NO GR OUNDS OF APPEAL AS PER FORM NO.35 HAS BEEN FILED BY THE ASSESSEE. 4 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 3 ITA NO. 103 /RAN/20 1 8 5 . LD. AR BEFORE US SUBMITTED THAT THE CIT(A) HAS NOT PROVIDED ANY OPPORTUNITY TO THE ASSESSEE TO REMOVE THE ALLEGED INSUFFICIENCY, THEREFORE, THE LD. AR PRAYED FOR ONE MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE CIT(A) WITH PROPER EVIDENCE. 6 . ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES. 7 . WE HAVE HEARD THE RIVAL SUBMIS SIONS AND PERUSED THE MATERIAL ON RECORD. WE ON PERUSAL OF THE CIT(A) ORDER, FOUND THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE OBSERVING THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AS THERE IS NOT GROUNDS OF APPEAL FILED ALONG WITH FOR M NO.35. WE CONSIDERING THE GROUNDS RAISED BY THE ASSESSEE AND IN THE INTEREST OF SUBSTANTIAL JUS TICE, WE PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE CIT(A) AND THE CIT(A) IS AT LIBERTY TO CONSIDER THE SUBMISSIONS AND PASS A REASONED ORDER AND THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE APPEAL. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 / 11 /201 8 SD/ - SD/ - (N.S.SAINI) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUD ICIAL MEMBER RANCHI , DATED 30 / 11 /2018 PRAKASH KUMAR MISHRA , SR. PS 4 ITA NO. 103 /RAN/20 1 8 COPY OF THE ORDER FORWARDED TO : BY ORDER, //TRUE COPY// SR.PS, ITAT, RANCHI 1. THE APPELLANT SHYAM SUNDAR VASISHTHA , KATHARA, BERMO 2. THE RESPONDENT ACIT, CIRCLE - 2(1), HAZARIBAGH 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE.