ITO, Jaipur V. VIMAL KUMAR MANTRI, Jaipur

ITA 1047/JPR/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59556 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 16-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Keywords: Additional evidence
• Section: 194C

Judgement Text

1 ITA 1047-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI SANJAY ARORA ITA NO. 1047/JP/2010 ASSTT. YEAR : 2007-08. THE INCOME-TAX OFFICER, VS. SHRI VIMAL KUMAR MANT RI, WARD 4(3), 166, RADHA GOVIND COLONY, JAIPUR. DHER KA BALAJI, SIKAR ROAD, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.K. MEENA RESPONDENT BY : SHRI MANISH AGARWAL DATE OF HEARING : 05.03.2012. DATE OF PRONOUNCEMENT : 15.03.2012. ORDER DATE OF ORDER : 15/03/2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2007-08. 2. FIRST GROUND IS AGAINST DELETING ADDITION OF RS. 64,680/- MADE BY AO UNDER SECTION 40(A)(IA) OF THE IT ACT BY ADMITTING ADDITI ONAL EVIDENCE IN CONTRAVENTION OF PROVISIONS OF RULE 46A. 3. THE LD. D/R PLACED RELIANCE ON THE ORDER OF AO. 4. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). IT WAS FURTHER SUBMITTED THAT NO ADDI TIONAL EVIDENCE HAS BEEN ACCEPTED BY THE DEPARTMENT. IT WAS SUBMITTED THAT ASSESSEE FILE D ALL THE PURCHASE VOUCHERS AND THEY 2 WERE EXPLAINED BEFORE THE AO. HOWEVER, THE AO WITH OUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEE MADE ADDITION BY INVOKING PROVISIONS O F SECTION 40(A)(IA). THE SAID PURCHASE VOUCHERS WERE PRODUCED BEFORE LD. CIT (A) WHO AFTER CONSIDERING THE SUBMISSIONS WAS SATISFIED THAT THERE IS NO CASE OF ADDITION UNDER S ECTION 40(A)(IA). THEREFORE, THERE WAS NO CONTRAVENTION OF RULE 46A. 5. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) AND SUBMISSIONS OF THE ASSESSEE, WE FIND NO INFIRMITY IN THE FINDING OF LD . CIT (A). ON PERUSAL OF ASSESSMENT ORDER, IT IS SEEN THAT ON VARIOUS DATES IN CASE OF M/S. MANTRI IND. PAYMENT OF FREIGHT WAS MADE TO M/S. VIKAS CARRIER AND ON EACH DATE THE PAY MENT WAS EXCEEDING RS. 20,000/- AND ON SUCH TOTAL PAYMENT OF RS. 1,16,300/- NO TDS WAS MADE UNDER SECTION 194C OF IT ACT. SIMILARLY, IN CASE OF M/S. MANTRI POLE UDHYOG, NO T AX WAS DEDUCTED ON FREIGHT PAYMENT OF RS. 64,680/- TO M/S. VIKAS CARRIER. THEREFORE, THE AO MADE ADDITION OF RS. 2,08,892/- UNDER SECTION 40(A)(IA). IT WAS SUBMITTED THAT ASS ESSEE HAS FURNISHED COPIES OF BILLS/VOUCHERS REGARDING PAYMENT TO M/S. VIKAS CARR IER FROM WHICH IT WAS CLEAR THAT THE SAID PAYMENT WAS NOT IN RESPECT OF FREIGHT BUT IT W AS IN RESPECT OF PURCHASE OF GRIT AND SAND WHICH IS THE RAW MATERIAL FOR MANUFACTURING OF PCC POLES AND SINCE, NAME OF THE SUPPLIER IS M/S. VIKAS CARRIER WHICH IS AKIN TO TRA NSPORTER AND THEREFORE, DUE TO MISTAKE THE ACCOUNTANT HAS DEBITED THESE PAYMENT IN FREIGHT ACCOUNT INSTEAD OF PURCHASE OF MATERIAL. CONSIDERING SUCH FACTUAL CLARIFICATION, IT WAS REQUESTED TO DELETE THE SAID DISALLOWANCES. HOWEVER, THE AO MADE THE ADDITION. 6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, THE LD. CIT (A) DELETED THE ADDITION IN PART. THE ADDITION OF RS. 13,956/- WAS SUSTAINED BY LD. CIT (A). HOWEVER, REMAINING AMOUNT OF ADDITION WAS DELE TED BY HOLDING THAT THEY WERE NOT 3 ON ACCOUNT OF FREIGHT BUT ON ACCOUNT OF PURCHASE. P URCHASE VOUCHERS WERE EXAMINED BY LD. CIT (A) AND THEN ONLY THE REMAINING ADDITIONS W ERE DELETED. THE FINDINGS OF LD. CIT (A) ARE FINDING OF FACT, THEREFORE, WE SEE NO REASO N TO INTERFERE WITH THE FINDINGS AS NO PAYMENT WAS MADE ON ACCOUNT OF FREIGHT BUT THE PAYM ENTS WERE MADE ON ACCOUNT OF PURCHASE OF RAW MATERIAL WHERE PROVISIONS OF SECTIO N 40(A)(IA) WAS NOT APPLICABLE. ACCORDINGLY, THE DELETION MADE BY LD. CIT (A) IS CO NFIRMED. 7. SECOND ISSUE IN RESPECT OF DELETION OF ADDITION OF RS. 96,249/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED LIABILITY AGAINST ADMISSION OF ADDITIONAL EVIDENCE BY LD. CIT (A). 8. SIMILAR ARGUMENTS WERE MADE BY BOTH THE PARTIES IN THIS REGARD ALSO. AFTER CONSIDERING ORDERS OF AO AND LD. CIT (A), WE FIND N O INFIRMITY IN THE FINDING OF LD. CIT (A). 9. ON PERUSAL OF ASSESSMENT ORDER, IT IS SEEN THAT THERE WAS A DIFFERENCE OF RS. 96,249/- UNDER THE HEAD CURRENT LIABILITY AS SHOWN IN THE RETURN OF INCOME AND BALANCE SHEET AND, THEREFORE, THE AO ADDED THIS DIFFERENCE IN THE INCOME. IT WAS ARGUED BEFORE LD. CIT (A) THAT WHILE FILING THE RETURN, DUE TO CALCUL ATION ERROR TOTAL OF SUNDRY CREDITORS SHOWN LOWER BY RS. 96,249/- AND A COMPENSATORY ERRO R WAS ALSO COMMITTED WHILE SHOWING LESSER SUNDRY DEBTORS AND BANK BALANCE TO T HIS EXTENT. IT WAS EXPLAINED TO THE AO AND LIST OF SUNDRY CREDITORS, SUNDRY DEBTORS AND EVIDENCE FOR BANK BALANCE WAS FURNISHED. HOWEVER, AO WAS NOT SATISFIED, THEREFOR E, HE MADE THIS ADDITION. COPIES OF SUNDRY CREDITORS/SUNDRY DEBTORS, BANK EVIDENCE WERE FILED BEFORE LD. CIT (A). AFTER CONSIDERING THESE DETAILS, IT WAS NOTICED BY LD. CI T (A) THAT DIFFERENCE AROSE DUE TO CALCULATION ERROR WHICH HAS BEEN RECONCILED AND IF THE RECONCILED FIGURE IS TAKEN INTO 4 ACCOUNT, THEN THERE IS NO DIFFERENCE REMAINS. THER EFORE, THERE IS NO QUESTION OF MAKING ANY ADDITION. ACCORDINGLY THE ADDITION WAS DELETED BY LD. CIT (A). 10. HERE ALSO, WE SEE NO REASON TO INTERFERE WITH T HE FINDING OF LD. CIT (A) AS LD. CIT (A) HAS GIVEN A FINDING OF FACT AFTER ASCERTAINING FACTUAL ASPECTS AND NO ADDITIONAL EVIDENCE HAS BEEN ACCEPTED BY LD. CIT (A). ACCORD INGLY, WE CONFIRM THE ORDER OF LD. CIT (A) IN THIS RESPECT ALSO. 11. REMAINING ISSUE IS IN RESPECT OF DELETING THE A DDITION OF RS. 5,57,956/- MADE ON ACCOUNT OF UNDISCLOSED INTEREST BY ADMITTING ADDITI ONAL EVIDENCE IN CONTRAVENTION OF RULE 46A. 12. AFTER CONSIDERING THE ORDERS OF AO AND LD. CIT (A) AND SUBMISSIONS OF BOTH THE PARTIES, WE AGAIN FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). ON PERUSAL OF ASSESSMENT ORDER, IT IS SEEN THAT AS PER AIR INFORM ATION OF THE DEPARTMENT TOTAL TDS DEDUCTED BY PNB ON THE INTEREST PAYMENT WAS RS. 74, 822/- WHEREAS THE ASSESSEE HAS CLAIMED TDS AT RS. 29,555/- ON INTEREST RECEIPT OF RS. 2,90,707/-. IN THIS RESPECT, THE ASSESSEE WAS GIVEN A SHOW CAUSE NOTICE AND AFTER CO NSIDERING THE REPLY, THE AO WAS NOT SATISFIED, THEREFORE, HE WORKED OUT INTEREST ON THE BASIS OF DIFFERENCE OF TDS AT RS. 5,57,956/- WHICH WAS ADDED TO THE INCOME OF THE ASS ESSEE. IT WAS ARGUED THAT ASSESSEE HAS HAVING FDR OF RS. 21,23,067/- WITH PNB AS ON 31 .3.2007 ON WHICH BANKER HAS PAID INTEREST AFTER DEDUCTING TDS AS PER FORM NO. 16A WH ICH WAS FILED WITH THE RETURN OF INCOME. AS PER THIS CERTIFICATE, INTEREST INCOME W AS RS. 2,90,707/- AND SINCE, IN THE IMMEDIATE PRECEDING YEAR INTEREST INCOME OF RS. 1,1 1,226/- WAS OFFERED THEREFORE, THE BALANCE AMOUNT OF RS. 1,79,481/- WAS OFFERED DURING THE YEAR UNDER APPEAL. THE AO WAS REQUESTED TO VERIFY THIS FACT FROM THE BANK BUT AO PREFERRED NOT TO MAKE ANY VERIFICATION. 5 UNDER THESE CIRCUMSTANCES, ON REQUEST OF THE ASSESS EE, THE BANKER REVERIFIED THE FACT OF TDS AND AS PER CERTIFICATE GIVEN THE TDS SHOWN IN A ST MODULE WAS INCORRECT. OTHERWISE ALSO CONSIDERING THE FDR WORTH OF RS. 21, 23,067/- IF THE CONTENTION OF THE AO IS CORRECT THEN RATE OF INTEREST SHALL BE 34.75% WH ICH IS IMPOSSIBLE RATE ON FDR BY PNB. AFTER CONSIDERING THESE FACTS, THE LD. CIT (A) WAS SATISFIED WITH THE CONTENTIONS, ACCORDINGLY HE DELETED THE ADDITION. 13. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. CIT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A). THE LD. CIT (A) HAS AS CERTAINED THE FACTUAL ASPECTS, BANK CERTIFICATE WAS ALSO AVAILABLE BY WHICH IT WAS CERT IFIED THAT INTEREST OF RS. 2,90,707/- WAS ONLY PAYABLE TO THE ASSESSEE FOR THE YEAR UNDER CON SIDERATION. IT WAS ALSO FOUND THAT TDS DEDUCTION WAS ONLY OF RS. 29,555/-. THESE FINDINGS OF LD. CIT (A) ARE FINDINGS OF FACT WHICH IN OUR CONSIDERED VIEW DOES NOT REQUIRE ANY I NTERFERENCE. NO ADDITIONAL EVIDENCE WAS FILED BEFORE LD. CIT (A) EXCEPT SUPPORTING EVID ENCE WHICH WAS A CERTIFICATE ISSUED FROM THE BANK AND WHICH WAS CONSIDERED BY LD. CIT ( A) AND WAS FOUND THAT CONTENTION OF THE ASSESSEE WAS CORRECT. IN VIEW OF THESE FACTS A ND CIRCUMSTANCES, WE CONFIRM THE FINDING OF LD. CIT (A) IN RESPECT ALSO. 14. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 15. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 ..3.2012. SD/- SD/- ( SANJAY ARORA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- 6 COPY FORWARDED TO :- THE ITO WARD 4(3), JAIPUR. SHRI VIMAL KUMAR MANTRI, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 1047/JP/2010) BY ORDER, AR ITAT JAIPUR. `