JINESH J. DOSHI , MUMBAI V. ACIT 29 (1), MUMBAI

ITA 1149/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3853 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 28-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH RAI
• Keywords: Additional evidence
• Section: 13

Judgement Text

SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , BEFORE SRI VIKAS AWASTHY , JUDICIAL MEMBER ./ ITA NO. 1149 / MUM/ 2019 ( / ASSESSMENT YE ARS 2013 - 14 ) JINESH J DOSHI 124 - C BHARAT INDUSTRIAL ESTATE, LB SD ROAD, BHANDUP (W), MUMBAI PIN - 400 078 / VS. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE - 29(1), MUMBAI ( / APPELLANT) ( / RESPONDENT) . / PAN NO. AENPD 2 971 A / APPELLANT BY : SHRI ANIL THAKRAR / RESPONDENT BY : SHRI S AURABH RAI, DR / DATE OF HEARING : 27.10. 2020 / DATE OF PRONOUNCEMENT : 29 .10.2020 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 40 , MUMBAI [IN SHORT THE CIT(A) ] DATED 14.01.2019 FOR THE ASSESSMENT YEAR 2013 - 14 , PAGE | 2 ITA NO. 1149/MUM/2019 JINESH J DOSHI, AY 2013 - 14 CONFIRMING DISALLOWANCE MADE BY THE ASSESSING OFFICER IN RESPECT OF SUNDRY CREDITORS . 2. SHRI ANIL THAKRAR, APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS MADE DISALLOWANCE IN RESPECT OF THREE SUNDRY CREDITORS NAMELY RRK & ASSOCIATES, SURAJ TRANSPORT AND STEEL & WOOD WITHOUT APPREC IATING THE FACTS O N RECORD . 2 .1 IN RESPECT OF RRK AND ASSOCIATES, THE LEARNED AR SUBMITTED THAT IT IS A FIRM OF ACCOUNTANT OF THE ASSESSEE. THE RETAINERSHIP FEE IS PAID BY THE ASSESSEE EVERY YEAR TO THE ACCOUNTANT AND PROVISION FOR THE SAME AMOUNT IS CREA TED FOR THE NEXT YEAR. THEREFORE, THE SAME AMOUNT IS SHOWN IN SUNDRY CREDITORS EVERY YEAR . THE LEARNED AR REFERRED TO THE BANK STATEMENT AT PAGE 13 OF THE PAPER BOOK. THE LEARNED AR POINTED THAT ON 11.05.2013 15,000/ - WAS PAID TO RAHUL, THE ACCOUNTANT OF THE ASSESSEE. THE LEARNED AR FURTHER SUBMITTED THAT THE ACCOUNTANT REPRESENTS THE ASSESSEE BEFORE VARIOUS TAX AUTHORITIES AND EVEN IN THE PRESENT CASE, HE APPEARED BEFORE THE CIT( A). 2.2 IN RESPECT OF SURAJ TRANSPORT, THE LEARNED AR POINTED THAT LITIGATION IS PENDING DUE TO WHICH THE AMOUNT IS OUTSTANDING. THE LEARNED AR IN SUPPORT OF HIS CONTENTION REFERRED TO PHOTO COPY OF AN AFFIDAVIT FILED BEFORE THE HON'BLE BOMBAY HIGH COURT IN A SUMMARY SUIT NO. 2463 OF 2009 FILED BY THE ASSESSEE AGAINST ZENITH FIRE SERVICES (INDIA) PVT. LTD. THE LEARNED AR POINTED THAT IN AFFIDAVIT IT HAS BEEN CATEGORICALLY STATED THAT THE DEFENDANT AS ALLEGED TO HAVE MADE PAYMENT OF 2 LACS TO SURAJ TRANSPORT , THE ASSESSEE IS DISPUTING THE PAGE | 3 ITA NO. 1149/MUM/2019 JINESH J DOSHI, AY 2013 - 14 SAME. THE LEARNED AR FURTHER REFERRED TO THE LEDGER ACCOUNT AT PAGE 3 OF THE PAPER BOOK TO SHOW THAT ACTUAL CHARGES FOR TRANSPORTATION WERE 33,844/ - . TILL THE TIME LITIGATION IS PENDING, THE ACCOUN T OF S URAJ TRANSPORT WILL NOT SETTLE AND THE AMOUNT WO ULD APPEAR IN SUNDRY CREDITORS. 2.3 IN RESPECT OF STEEL AND WOOD, THE LEARNED AR SUBMITTED THAT THE AMOUNTS WERE PAID TO THE PARTY ON 28.08.2013. THIS FACT IS EVIDENT FROM BANK STATEMENT AT PAGE 14 OF THE PAPER BOOK. THE LEARNED AR PRAYED FOR REVERSING THE FINDINGS OF CIT(A) AND ALLOWING THE ASSESSEES CLAIM. 3. PER CONTRA, SHRI SAURABH RAI , REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. THE LEARNED DEPARTMENTAL REPRESENTATIVE ASSERTE D THAT T HE DOCUMENTS ON WHICH THE AR HAS PLACED RELIANCE WERE NEVER PRODUCED BEFORE THE AUTHORITIES BELOW . THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS CATEGORICALLY OBSERVED THAT THE ASSESSEE HAS FAILED TO FILE SATISFACTORY REPLY AND EVEN BEFORE CIT( A) NO DOCUMENTS WERE PRODUCED. THE BANK STATEMENT AT PAGE 13 AND 14 OF THE PAPER BOOK AND THE AFFIDAVIT IN THE SUIT AT PAGES 6 TO 12 OF THE PAPER BOOK ARE ADDITIONAL EVIDENCES. THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE SHOULD NOT BE ACCEPTED AT THIS L ATE STAGE. 4. CONTROVERTING THE SUBMISSIONS MADE ON BEHALF OF THE DEPARTMENT , THE LEARNED AR SUBMITTED THAT THE LEDGER ACCOUNTS WERE FURNISHED BEFORE THE AUTHORITIES BELOW. THE ASSESSEE HAD ALSO POINTED BEFORE THE CIT(A) THAT THE LITIGATION IS PENDING IN RESP ECT OF SURAJ PAGE | 4 ITA NO. 1149/MUM/2019 JINESH J DOSHI, AY 2013 - 14 TRANSPORT THEREFORE, THE AMOUNT IS SHOWN UNDER THE HEAD SUNDRY CREDITORS . THESE DOCUMENTS ARE FILED TO FURTHER SUBSTANTIATE THE CLAIM OF ASSESSEE ALTHOUGH EVIDENCE IN THE FORM OF LEDGER ACCOUNTS WERE FURNISHED BEFORE THE ASSESSING OFFICER TO S HOW THAT THE AMOUNTS WERE ACTUALLY OUTSTANDING IN BOOKS AND PAID LATER IN TIME. 5. BOTH SIDES HEARD, ORDERS OF THE LOWER AUTHORITIES PERUSED . THE ONLY ISSUE RAISED IN PRESENT APPEAL BY THE ASSESSEE IS IN RESPECT OF DISALLOWANCE OF THREE SUNDRY CREDITORS AMOUN TING TO 2,44,634/ - . THE CONTENTION OF THE ASSESSEE IS THAT THE AMOUNTS IN RESPECT OF SUNDRY CREDITORS RRK & ASSOCIATES AND STEEL AND WOOD HAVE BEEN PAID IN SUBSEQUENT FINANCIAL YEARS. SO FAR AS, THIRD CRED ITOR SURAJ TRANSPORT IS CONCERN ED , THE AMOUNT IS STILL UND ER LITIGATION, HENCE, THE SAME IS REFLECTED UNDER SUNDRY CREDIT ORS. THE PARTY RRK AND ASSOCIATES IS STATED TO BE THE ACCOUNTANT OF THE ASSESSEE. THE ASSESSEE HAS FILED A BANK STATEMENT FROM BANK OF BARODA , VEENA NAGAR BRANCH. A PERUSAL OF THE SAME SHOWS TH AT PAYMENT OF 15,000/ - HAS BEEN MADE TO RAHUL ON 11.05.2013. SIMILARLY, IN RESPECT OF STEEL AND WOOD , THE BANK STATEMENT REFLECTS THAT THE PAYMENTS HAVE BEEN MADE ON 28.02.2013. HENCE, NO DISALLOWANCE IN RESPECT OF ABOVE IS WARRANTED. 6. ADMITTEDLY, THE BANK STATEMENT S WE RE NEVER PRODUCED BEFORE THE ASSESSING OFFICER OR BEFORE CIT(A). HENCE, IT IS AN ADDITIONAL EVIDENCE FILED BY THE ASSESSEE . THOUGH THE ASSESSEE HAD FILED LEDGER ACCOUNTS BEFORE THE ASSESSING OFFICER BUT THAT DOES NOT CONCLUSIVELY PROVE THAT THE CREDITORS H AVE BEEN DISCHARGED AT LATER POINT OF TIME. AFTER EXAMINING THE FACTS OF THE CASE , T HE ADDITIONAL EVIDENCE S FURNISHED BY ASSESSEE ARE ACCEPTED. PAGE | 5 ITA NO. 1149/MUM/2019 JINESH J DOSHI, AY 2013 - 14 7. SINCE, THE BA NK STATEMENT AND AFFIDAVIT FILE D IN SUMMARY SUIT HAVE BEEN BROUGHT ON RECORD FOR THE FIRST TIME BY WAY OF ADDITIONAL EVIDENCE, I DEEM IT APPROPRIATE TO RESTORE THE ISSUE BACK TO THE ASSESSING OFFICER FOR LIMITED PURPOSES OF VERIFICATION OF THE BANK STATEMENT AND ASCERTAIN GENUINENESS OF THE CLAIM MADE BY ASSESSEE IN THE LIGHT OF BANK STATEMENT. THE LEA RNED AR STATED AT BAR THAT HE HAS NO OBJECTION IF THE CASE IS RESTORED TO ASSESSING OFFICER FOR THE LIMITED PURPOSE OF VERIFICATION OF DOCUMENTS FILED AS ADDITIONAL EVIDENCES. 8. IN SO FAR AS SURAJ TRANSPORT IS CONCERNED, THE AMOUNT PAYABLE TO SAID PARTY IS UNDER DISPUTE. THE ASSESSEE HAS FURNISHED PHOTO COPY OF THE AFFIDAVIT FILED BEFORE THE HON'BLE BOMBAY HIGH COURT IN SUMMARY SUIT NO. 2463 OF 2009 . THE ASSESSEE IS DIRECTED TO FURNISH BEFORE THE ASSESSING OFFICER A CERTIFIED COPY OF THE SUMMARY SU IT ALONG WITH THE STATUS OF THE SUIT. THE ASSESSING OFFICER AFTER VERIFYING THE GENUINENESS OF THE ASSESSEES CLAIM SHALL ALSO CONSIDER TO DELETE THE DISALLOWANCE IN RESPECT OF SURAJ TRANSPORT. 9. IN THE R ESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTI CAL PURPOSES IN THE TERMS AFORESAID . 10. ORDER P RONOUNCED IN THE OPEN COURT ON THURSDAY , THE 29 TH DAY OF OCTOBER, 2020 . SD/ - ( / VIKAS AWASTHY ) ( / JUDICIAL MEMBER ) , / MUMBAI, DATED: 29 . 10 .2020 , . / SUDIP SARKAR, SR.PS PAGE | 6 ITA NO. 1149/MUM/2019 JINESH J DOSHI, AY 2013 - 14 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (ASSTT. REGISTRAR) , / ITAT, MUMBAI