SHRI BALU RAM SHARMA, AJMER V. INCOME TAX OFFICER, WARD-2-2, AJMER

ITA 1057/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0897 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJEEV JAIN CA MS
• Keywords: Additional evidence; Difference of opinion; Condonation of delay; Change of opinion; TDS
• Section: 143(3); 40(a)(ia); 48; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1057/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 SH. BALU RAM SHARMA, PROP. M/S MAYA MOTORS, PARBATPURA BYEPASS, AJMER CUKE VS. ITO, WARD-2(2), AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BIKPS6799D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. SANJEEV JAIN (CA) JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/06/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 04/06/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 12.06.2019 WHEREIN THE ASSESSEE HAS TAK EN THE FOLLOWING GROUNDS OF APPEAL: 1. LD. CIT(APPEALS) ERRED IN LAW AS WELL AS ON FA CTS OF THE CASE BY CONFIRMING ACTION OF THE AO IN ISSUING NOTICE U/S 1 48 AS THE REASONS RECORDED FOR ISSUANCE OF NOTICE U/S 148 ARE NOT JUS TIFIED. 2. LD. CIT (APPEALS) ERRED IN LAW AS WELL AS ON FAC TS OF THE CASE BY CONFIRMING AN ADDITION OF RS. 36,000/- ON ACCOUNT O F ACCOUNT MAINTENANCE EXPENSES INCURRED BY THE ASSESSEE, BEIN G PART TIME ACCOUNTANT SALARY AND NOT BEING A PROFESSIONAL EXPE NSE ON WHICH TDS WAS NOT REQUIRED TO BE DEDUCTED. 3. LD. CIT(APPEALS) ERRED IN LAW AS WELL AS ON FACT S OF THE CASE BY CONFIRMING ADDITION OF RS. 2,46,485/- ON ACCOUNT OF ADVERTISEMENT EXPENSE INCURRED BY THE ASSESSEE BEING SMALL PAYMEN TS MADE TO ITA NO. 1057/JP/2019 SH. BALU RAM SHARMA, AJMER VS. ITO, AJME R 2 DIFFERENT PERSONS AT DIFFERENT TIMES ON DIFFERENT D ATES ON WHICH TDS WAS NOT REQUIRED TO BE DEDUCTED. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE WAS ENGAGED IN BU SINESS OF TRADING OF TRACTORS UNDER THE NAME AND STYLE OF M/S MAYA MOTOR S. IT WAS SUBMITTED THAT THE ASSESSMENT WAS ORIGINALLY COMPLETED U/S 143(3) ON 23.06.2017 WHEREIN THE ITO HAD ASKED FOR ALL INCOME AND EXPENDITURE RE FLECTED IN THE RETURN FILED FOR THE YEAR UNDER CONSIDERATION AND AFTER CONSIDER ING THE DETAILS AND SUBMISSIONS FILED BY THE ASSESSEE, THE ASSESSMENT W AS COMPLETED U/S 143(3) OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT NO N EW INFORMATION OR MATERIAL HAS COME IN THE POSSESSION OF THE ASSESSING OFFICER BASIS WHICH HE HAS REOPENED THE ASSESSMENT BY ISSUANCE OF NOTICE U/S 1 48 OF THE ACT AND IT IS CLEARLY A CASE OF CHANGE OF OPINION AND WHICH THE C OURTS HAVE HELD NOT PERMISSIBLE FOR REOPENING THE ASSESSMENT. 3. PER CONTRA, THE LD. DR SUBMITTED THAT THE MATTE R HAS BEEN REOPENED ON THE GROUND THAT THE ACCOUNT MAINTENANCE EXPENSES AM OUNTING TO RS 36,000/- AND ADVERTISEMENT EXPENSES AMOUNTING TO RS 2,46,485 /- WERE CLAIMED BY THE ASSESSEE AND THE ASSESSEE HAD FAILED TO DEDUCT TDS ON SUCH EXPENSES AND THE PROVISIONS OF SECTION 40(A)(IA) WERE CLEARLY AT TRACTED AND BASIS SUCH INFORMATION IN POSSESSION OF THE ASSESSING OFFICER, HE HAS REOPENED THE ASSESSMENT PROCEEDINGS BY ISSUANCE OF NOTICE U/S 1 48 OF THE ACT. IT WAS SUBMITTED THAT IT IS A CLEARLY A CASE OF VIOLATION OF PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND THERE CANNOT BE A TWO OPIN IONS ABOUT IT. IT WAS ACCORDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN ACTION OF THE AO IN REOPENING THE ASSESSMENT PROCEEDINGS. FURTHER, LD DR DRAWN OUR REFERENCE TO THE ORDER OF THE LD CIT(A) WHEREIN THE ASSESSEE HAS STATED THAT HE WISHES TO FILE CERTAIN ADDITIONAL EVIDENCES IN SUPPORT OF ITS CLAIM OF THE AFORESAID EXPENSES AS THE ASSESSEE WAS NOT IN POSSESSION OF T HESE DOCUMENTS WHEN THE ITA NO. 1057/JP/2019 SH. BALU RAM SHARMA, AJMER VS. ITO, AJME R 3 ASSESSMENT PROCEEDINGS WERE FINALIZED BY THE AO. I T WAS ACCORDINGLY SUBMITTED THAT WHERE THE DETAILS OF THE EXPENSES WE RE NOT FILED BY THE ASSESSEE AT FIRST PLACE, THERE IS NO QUESTION OF FO RMING ANY OPINION BY THE AO AND THE CONTENTION OF THE LD AR REGARDING CHANGE OF OPINION IS DEVOID OF MERITS AND THE SAME MAY BE REJECTED. FURTHER, SHE RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE MATTER HAS B EEN LISTED FOR HEARING ON COUPLE OF OCCASIONS BEFORE THE LD CIT(A), HOWEVER, THERE WAS NO COMPLIANCE ON PART OF THE ASSESSEE EXCEPT AN APPLICATION DATED 14.01.2019 SEEKING CONDONATION OF DELAY IN FILING THE APPEAL AS WELL A S PERMISSION SEEKING FILING OF ADDITIONAL EVIDENCE. THE LD CIT(A) HAS CONDONED TH E DELAY, HOWEVER, THERE IS NO FINDING REGARDING ADMISSION OF ADDITIONAL EVIDEN CE AS SOUGHT BY THE ASSESSEE AND THE MATTER HAS BEEN DECIDED EX-PARTE BY THE LD CIT(A) SUMMARILY WITHOUT DECIDING ON MERITS. THEREFORE, I N THE INTEREST OF JUSTICE AND FAIR PLAY AND ESPECIALLY WHERE THE MATTER HAS N OT BEEN DECIDED ON MERITS, WE BELIEVE THAT THE ASSESSEE DESERVES ONE MORE OPPO RTUNITY TO PUT FORTH HIS ARGUMENTS AND CONTENTIONS AND WE ACCORDINGLY SET AS IDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO EXAMINE THE MATTER AFRESH TAKI NG INTO CONSIDERATION THE ADDITIONAL EVIDENCE AS FILED BY THE ASSESSEE AND AF TER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. THE CONTENTIONS SO AD VANCED BEFORE US ARE THEREFORE LEFT OPEN AND THE ASSESSEE IS FREE TO RAI SE THE SAME BEFORE THE LD CIT(A). THE ASSESSEE IS ALSO DIRECTED TO APPEAR BE FORE THE LD. CIT(A) AND FILE THE NECESSARY INFORMATION AND DOCUMENTATION IN SUPP ORT OF HIS CONTENTIONS, AS SO ADVISED AND ENSURE IN TIMELY COMPLETION OF THE P ROCEEDINGS. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ITA NO. 1057/JP/2019 SH. BALU RAM SHARMA, AJMER VS. ITO, AJME R 4 ORDER PRONOUNCED IN THE OPEN COURT ON 04/06/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04/06/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. BALU RAM SHARMA, AJMER 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(2), AJMER 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1057/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR