The ITO, Ward-6(1), Surat V. M/s. Arihant Roadlines, Surat

ITA 105/AHD/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89649 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Income from undisclosed sources; Additional evidence
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ITA NO. 105/AHD/2012 ASST. YEAR 2008-09 INCOME-TAX OFFICER, WARD 6(1), SURAT. APPELLANT VS. M/S ARIIHANT ROADLINES, 1 ST FLOOR, HIRA MOTI MARKET, PUNA KUMBHARIYA ROAD, NEAR PARVAT PATIYA, SURAT.. RESPONDENT PAN :AAEFA 2300L APPELLANT BY : SHRI NARENDRA SINGH, SR. DR RESPONDENT BY :SMT. URVASHI SODHAN, AR DATE OF HEARING : 30.6.2015 DATE OF PRONOUNCEMENT : 30/06/2015 O R D E R PER SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 21.9.2011 ON THE FOLLOWING GROUNDS:- ITA NO._105/AHD/2012 ASST. YEAR 2008-09 2 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A)-IV, SURAT HAS ERRED IN DELETING AN ADDIT ION OF RS.41,54,322/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF DIFFERENCE IN CONTRACT RECEIPT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A)-IV, SURAT HAS ERRED IN NEGLECTING THE IN FORMATION GATHERED U/S 133(6) OF THE INCOME-TAX ACT AND MENTI ONED IN THE FORM NO.26AS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A)-IV, SURAT HAS ERRED IN ADMITTING THE ADD ITIONAL EVIDENCES AS PER THE PROVISIONS OF RULE 46A OF THE INCOME- TAX RULE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A)-IV, SURAT OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A )-IV, SURAT MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 2. THE ONLY ISSUE IS WITH REGARD TO THE DELETION OF ADDITION OF RS.41,54,322/- MADE ON ACCOUNT OF SUPPRESSION OF RE CEIPTS. THE ASSESSEE FILED THE RETURN OF INCOME FOR AY 2008-09 DECLARING TOTAL INCOME OF RS.15,573/- ON 30.9.2008 ALONG WITH AUDIT ED ACCOUNTS U/S 44AB OF THE I.T. ACT IN FORM NOS.3CB & 3CD. THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSEE IS ENGAGED IN T HE TRANSPORT BUSINESS. DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ITA NO._105/AHD/2012 ASST. YEAR 2008-09 3 ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SH OWN TOTAL FREIGHT RECEIPTS OF RS.48,51,212/-. AS PER INFORMAT ION RECEIVED U/S 133(6) THE TOTAL FREIGHT RECEIPTS OF THE ASSESSEE S HOULD HAVE BEEN 89,70,734/-. THE ASSESSING OFFICER ISSUED SHOW CAU SE NOTICE ASKING THE ASSESSEE AS TO WHY THE DIFFERENCE OF RS. 41,19,522/- BE NOT CONSIDERED AS ITS UNACCOUNTED INCOME. IN RESPON SE THE ASSESSEE SUBMITTED THAT THEY HAD RECEIVED ONLY RS.48,51,212/ - WHICH WAS REFLECTED IN THE TDS CERTIFICATES AND ALSO IN THE P ROFIT AND LOSS ACCOUNT. THE DETAILS OF FREIGHT RECEIPTS EARNED WAS GIVEN. THE STAND OF THE ASSESSEE WAS THAT IT ACTED AS A COMMISSION A GENT AND SUPPLY OF TRUCKS FROM THE MARKET FOR WHICH THEY RECEIVED C OMMISSION. IT WAS ALSO STATED ON BEHALF OF THE ASSESSEE THAT PART IES WHO CLAIMED TO HAVE CONTENDED MAKING PAYMENTS WILL NOT BE ABLE TO PRODUCE ANY RECEIPT SIGNED BY THE ASSESSEE. AFTER CONSIDERI NG THE SUBMISSIONS OF ASSESSEE ASSESSING OFFICER HELD THAT ASSESSEE HAD SUPPRESSED RECEIPTS AND THEREBY INCOME OF RS.41,54, 322/- AND ACCORDINGLY HE ADDED THE SAME TO THE INCOME OF ASSE SSEE. ITA NO._105/AHD/2012 ASST. YEAR 2008-09 4 3. THE MATTER WAS CARRIED IN APPEAL BEFORE THE FIRS T APPELLATE AUTHORITY. THE CIT(A) CONSIDERED THE SUBMISSIONS RA ISED ON BEHALF OF THE ASSESSEE AND GRANTED RELIEF TO THE ASSESSEE WHICH HAS BEEN OPPOSED BY THE REVENUE STATING THAT CIT(A) ERRED IN DELETING THE ADDITION OF RS.41,54,322/- MADE BY ASSESSING OFFICE R ON ACCOUNT OF DIFFERENCE IN CONTRACT RECEIPTS. THE ORDER OF CI T(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. ON T HE OTHER HAND THE LD. AR SUPPORTED THE ORDER OF CIT(A). 4. AFTER GOING THROUGH THE MATERIAL ON RECORD, WE F IND THAT AS STATED ABOVE THE ADDITION IS MADE BY ASSESSING OFFI CER ON ACCOUNT OF SUPPRESSION OF RECEIPTS. DURING THE APPELLATE PR OCEEDINGS THE ASSESSEE SUBMITTED THAT IN THE VEHICLE HIRE CHALLAN S OF ANKITA LOGISTICS PVT. LTD. ASSESSEES NAME IS MENTIONED AS THE BROKER WHICH ITSELF SHOWS THAT THEY HAD ACTED ONLY AS INTE RMEDIARY AND PAYMENTS WERE NOT RECEIVED FROM ANKITA LOGISTICS PV T. LTD. AS REGARDS BAL ROADLINES, IT WAS SUBMITTED THAT AS PER INFORMATION GIVEN TO THE ASSESSING OFFICER FREIGHT PAID TO THE ASSESSEE WAS RS.15,52,405/- WHEREAS IN THE TDS CERTIFICATE PROVI DED BY THEM THE AMOUNT IS MENTIONED AS RS.3,78,834/-. IN THIS R EGARD, IT WAS ITA NO._105/AHD/2012 ASST. YEAR 2008-09 5 SUBMITTED ON BEHALF OF THE ASSESSEE THAT IT ACTED O NLY AS A BROKER FOR THIS PERSON ALSO BUT TDS WAS MADE IN HIS NAME. IT WAS CLARIFIED THAT THE ASSESSEE HAS NOT CLAIMED THE BENEFIT OF TD S AS THE CORRESPONDING REVENUE WAS NOT HIS INCOME. AS REGARD S M/S BLRPVT. LTD. IT WAS SUBMITTED THAT THE PARTY HAD IS SUED CLARIFICATORY LETTER DATED 21.03.2011 (AFTER THE DA TE OF ASSESSMENT) ALONG WITH COMPLETE TRANSACTION DETAILS AND RELEVAN T TDS CERTIFICATE WHICH MADE IT CLEAR THAT TRANSACTIONS W ITH THE ASSESSEE WERE ONLY FOR RS.2,20,950/- AND THAT THEY HAD INADV ERTENTLY CREDITED RS.10,00,000/- WHICH BELONGED TO ANOTHER P ARTY OF SIMILAR NAME M/S ARIHANT ROADWAYS. IN THIS REGARD IT WAS RE QUESTED THAT THIS ADDITIONAL EVIDENCE BE ADMITTED. AS REGARDS SA YED AHMED ABDUL RASID SHAIKH, PROP. M/S ARROW LOGISTICS, IT W AS SUBMITTED THAT THE TRUCKS WERE OWNED BY THE PARTNERS SATISH M ISHRA AND SUBHASH PANDEY AND THEY HAD ACCOUNTED THE RECEIPTS IN THEIR RETURN OF INCOME. THE ASSESSEE ENCLOSED THE R.T.O. BOOK TO ESTABLISH THE REGISTERED OWNERSHIP OF PARTNERS AND INCOME-TAX RET URNS THEREOF. AS REGARDS EASTERN WESTERN ROADWAYS AND KHETAN SHIV PRAKASH, IT WAS SUBMITTED THAT THE ASSESSEE HAD ACTED ONLY AS A BROKER AND NOT RECEIVED PAYMENT FOR FREIGHT. IT WAS SUBMITTED THAT THE CLARIFICATIONS IN RESPECT OF EASTERN WESTERN ROADWA YS, KHETAN SHIVPRAKASH, ANKITA LOGISTICS PVT. LTD. AND BAL ROA DLINES COULD BE GIVEN IF THE ASSESSEE WAS PROVIDED WITH THE EVID ENCES WHICH THE ITA NO._105/AHD/2012 ASST. YEAR 2008-09 6 ASSESSING OFFICER HAD RELIED. IN THESE CIRCUMSTANCE S VIDE LETTER DATED 10.06.2011 THE ASSESSING OFFICER WAS DIRECTED TO PROVIDE THE DETAILS COLLECTED DURING THE ASSESSMENT PROCEEDINGS TO THE ASSESSEE. THE ASSESSING OFFICER PROVIDED THE EVIDENCES COLLEC TED TO THE ASSESSEE. THE ASSESSEE MADE ITS SUBMISSION VIDE LET TER DATED 22.06.2011 ON THE BASIS OF MATERIAL RECEIVED FROM T HE ASSESSING OFFICER. THE SUBMISSION OF THE ASSESSEE DATED 31.05 .2011 AND 22.06.2011 ALONG WITH ADDITIONAL EVIDENCES WERE FOR WARDED TO THE ASSESSING OFFICER ON 27.6.2011 AND HIS COMMENTS WER E REQUESTED BY 6.7.2011. HOWEVER, NO REPORT WAS RECEIVED FROM T HE ASSESSING OFFICER AND A REMINDER WAS ISSUED ON 16.8.2011ASKIN G FOR THE REPORT BY 24.8.2011. THE ASSESSING OFFICER WAS ALSO INFORMED THAT IF REMAND REPORT IS NOT RECEIVED THE APPEAL WOULD B E DECIDED ON MERITS WITHOUT FURTHER OPPORTUNITY TO HIM. HOWEVER, NO REPORT WAS RECEIVED FROM THE ASSESSING OFFICER. SO THE CIT(A) DECIDED THE ISSUE ON THE BASIS OF MATERIAL ON RECORD. FROM THE CLARIFICATION RECEIVED FROM M/S BLR LOGISTICS PVT. LTD. IN THEIR LETTER DATED 21.3.2011 CIT(A) OBSERVED THAT THE ASSESSEE HAD REC EIVED ONLY RS.2,20,950/- FROM THEM AND THIS AMOUNT WAS DULY AC COUNTED FOR BY THE ASSESSEE. IN VIEW OF THIS, THE ADDITION OF R S.10,00,000/- MADE ON ACCOUNT OF DIFFERENCE IN RECEIPTS FROM THIS PARTY WAS RIGHTLY DELETED BY CIT(A). NEXT ADDITION OF RS.66,0 87/- WAS MADE ON ACCOUNT OF RECEIPTS FROM SAYED AHMED ABDUL RASID SHAIKH, ITA NO._105/AHD/2012 ASST. YEAR 2008-09 7 PROP. M/S ARROW LOGISTICS. THE PARTNERSOWNERSHIP O F THE TRUCKS (USED FOR THIS PARTY) HAD BEEN ESTABLISHED AND THE RECEIPTS HAD ALSO BEEN OWNED UP BY THE PARTNERS IN THEIR INDIVIDUAL R ETURNS. THEREFORE, NO ADDITION WAS WARRANTED IN THE HANDS O F THE ASSESSEE. ACCORDINGLY, THIS ADDITION WAS RIGHTLY DELETED BY C IT(A). AS REGARDS ADDITION IN RESPECT OF ANKITA LOGISTICS PVT . LTD. THE VEHICLE HIRE CHALLANS CLEARLY MENTION THE ASSESSEE AS THE B ROKER. THESE CHALLANS ALSO HAVE THE NAME OF THE OWNER OF THE TRU CK AND THE AMOUNT OF FREIGHT PAYABLE AND ADVANCES MADE. THE PA YMENT VOUCHER FOR THE REMAINDER AMOUNT WAS MADE OUT TO CA SH AND ALTHOUGH THE NAME MENTIONED BY ANKITA LOGISTICS PVT . LTD. WAS OF THE ASSESSEE, BUT THERE WAS NO SIGNATURE OR ACKNOWL EDGEMENT OF THE ASSESSEE ON THESE VOUCHERS. IT SHOWS THAT ASSESSEE HAD NOT RECEIVED THE FREIGHT FROM THIS PARTY AND THEREFORE NO ADDITI ON SHOULD HAVE BEEN MADE IN RESPECT OF FREIGHT RECEIPTS FROM ANKIT A LOGISTICS PVT. LTD. AND SAME WAS RIGHTLY DELETED. AS REGARDS ADDI TION MADE ON ACCOUNT OF FREIGHT RECEIPTS FROM EASTERN WESTERN RO ADWAYS AND KHETAN SHIVPRAKASH ARE CONCERNED THESE HAD BEEN MAD E ON THE BASIS OF FORM 26AS DOWNLOADED BY THE ASSESSING OFFI CER. NO INFORMATION WAS RECEIVED FROM THESE PERSONS U/S 133 (6). THE ASSESSEE HAD NOT CLAIMED BENEFIT OF ANY TDS MADE BY THESE PERSONS. THEREFORE, THE SUBMISSIONS OF THE ASSESSEE IN RESPECT OF THESE PERSONS WERE ACCEPTED BY THE CIT(A) AS NO EVI DENCE ITA NO._105/AHD/2012 ASST. YEAR 2008-09 8 REGARDING ACTUAL RECEIPTS HAD BEEN BROUGHT ON RECOR D BY REVENUE. REGARDING ADDITION OF RS.15,52,405/- MADE ON ACCOUN T OF FREIGHT RECEIPTS FROM BAL ROADLINES. IT WAS MENTIONED THAT THIS AMOUNT WAS ALSO REFLECTED IN FORM 26AS. IT WAS SUBMITTED B Y THE ASSESSEE THAT AS PER TDS CERTIFICATE GIVEN TO THEM, THIS PER SON HAD GIVEN RS.3,78,834/- TO THE ASSESSEE WHEREAS IN ITS REPLY TO THE ASSESSING OFFICER IT HAD SHOWN PAYMENTS OF RS.15,52,405/- IN CASH TO THE ASSESSEE. THE ASSESSEE ALSO SUBMITTED COPY OF THE P ROFIT AND LOSS ACCOUNT OF THE SAID BAL ROADLINES, WHICH SHOWS ONLY RS.89,370/- BEING CLAIMED AS FREIGHT EXPENSES. THE STAND OF THE ASSESSEE WAS THAT IT WAS NOT POSSIBLE FOR A PERSON MAKING EXPENS ES OF RS.89,370/- ONLY WOULD MAKE PAYMENTS OF RS.15,52,40 5/- TO THE ASSESSEE FOR THE SAME PURPOSE. IT WAS PLEADED THAT THERE WAS SOME MISTAKE IN THE ACCOUNTS OF BAL ROADLINES AND THE AS SESSEE HAD ACTED ONLY AS A BROKER FOR THE PARTY SHOULD NOT BE PENALIZED FOR THE LAPSE OF THIRD PARTY. THE ASSESSEE SUBMITTED THAT I T HAD NOT CLAIMED BENEFIT OF TDS AS CORRESPONDING REVENUE WAS NOT HIS INCOME. THE CONCERN ASSESSING OFFICER HAD NOT RESPONDED TO THE LETTERS ISSUED BY CIT(A). SO THE CIT(A) HELD THAT ASSESSING OFFICE R HAD NOT MADE ANY EFFORT TO OBTAIN VEHICLE HIRE CHALLAN FROM THIS PARTY. CONSIDERING THE FACT THAT THE AMOUNTS OF FREIGHT ME NTIONED BY M/S BAL ROADLINES WAS DIFFERENT AT DIFFERENT PLACES IT COULD NOT BE HELD AS CONCLUSIVE EVIDENCE AGAINST THE ASSESSEE WH ICH HAD ALSO ITA NO._105/AHD/2012 ASST. YEAR 2008-09 9 NOT CLAIMED BENEFIT OF TDS. IN THIS BACK GROUND THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION IN RESPECT OF BA L ROADLINES AND ASSESSEE SHOULD NOT SUFFER FOR THE FAULT OF THIRD P ARTY. IN VIEW OF THIS FACTUAL MATRIX, WE FIND NO INFIRMITY IN THE OR DER OF CIT(A). WE UPHOLD THE SAME. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 30 TH OF JUNE, 2015 SD/- SD/- (ANIL CHATURVEDI) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMB ER DATED : 30/6/2015 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY.REGISTRAR,ITAT, AHMEDABAD ITA NO._105/AHD/2012 ASST. YEAR 2008-09 10 1. DATE OF DICTATION: 30.6.2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 30/6/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 1/7/2015 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: