Vimit Construction, Ankleshwar V. The Dy.CIT, Bharuch Circle, Bharuch

ITA 1168/AHD/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5974 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K BHARADWAJ

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CAMP AT SURAT BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER VIMIT CONSTRUCTION, 9, LALA COMPLEX, OPP. SARDAR COMPLEX, GIDC ESTATE, ANKLESH W AR - 393002 PAN: AABFV9695B (APPELLANT) VS THE DCIT, BHARUCH CIRCLE, BHARUCH (RESPONDENT) REVENUE BY : S H RI A.K. BHARADWAJ , SR. D . R. ASSESSEE BY: SHRI HIREN VEPARI, A.R. DATE OF HEARING : 24 - 04 - 2 017 DATE OF PRONOUNCEMENT : 04 - 05 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASSESSEE'S APPEAL FOR A.Y. 2009 - 10, ARISES FROM ORDER OF THE CIT(A) - V, BARODA DATED 26 - 02 - 2014 IN APPEAL NO. CAB/(A)V - 117/13 - 14, IN PROCEEDINGS UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961; IN SHORT 'THE ACT'. I T A NO . 1168 / A HD/20 14 A SSESSME NT YEAR 2009 - 10 I.T.A NO. 1168 /AHD/20 14 A.Y. 2009 - 10 PAGE NO VIMIT CONSTRUCTION VS. DCIT 2 2. THE ASSESSE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - '1. THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING PENALTY U/S. 271(1)(C) PARTICULARLY WHEN THERE WAS NEITHER CONCEALMENT OF INCOME NOR FURNISHING OF INACCURATE PARTICULARS BY THE APPELLANT. 2. CONFIRMING PENALTY U/S. 271(1)(C) ON THE GRO UND OF APPELLANT'S INABILITY TO PRECISELY RECONCILE THE DIFFERENCE OF TDS CLAIMED WITH ONLINE 26AS STATEMENT, WHICH EMANATE FROM VARIOUS 'TAX DEDUCTOR' SOURCES IS UNCALLED FOR. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, PENALTY IS REQUIRED TO BE DELETED.' 3. IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 93,22,360/ - WAS FILED ON 28 TH SEPTEMBER, 2009. THEREAFTER, THE CASE WAS SELECTED UNDER SCRUTINY BY ISSUING NOTICE U/S. 143(2) ON 19 TH SEPTEMBER. DURING THE COURSE OF ASSESSING PROCEEDINGS, IT WAS NOTICED BY THE ASSESSING OFFICER THAT SALE DISCLOSED BY THE ASSESSEE IN THE P & L A/C WAS COMPARED WITH THE SALE AS PER TDS CLAIMED BY THE ASSESSEE IN THE RETURN OF INCOME FILED. IT WAS FOUND THAT AN AMOUNT OF RS. 15,83,73,946/ - AS SALES WAS DISCLOSED IN THE P & L A/C WHEREAS THE TOTAL SALE AS PER TDS CLAIMED BY THE ASSESSEE WAS RS. 18,06,89,889/ - . IN THIS CONNECTION, THE ASSESSEE EXPLAINED THAT TDS MADE IN COURSE OF SALE INCLUSIVE OF SERVICE TAX BUT THE ASSESSEE HAS CREDITED THE NET SALE EXCLUSIVE OF SERV ICE TAX IN THE A/C. AND HAS NOT DEBITED SERVICE TAX. THE ASSESSING OFFICER FOUND THAT CONTENTION OF THE ASSESSEE WAS CORRECT BUT AFTER RE - CONCILIATION OF THE INFORMATION GIVEN BY THE ASSESSEE, IT WAS FOUND THAT ASSESSEE HAS NOT EXPLAINED THE BALANCE FIG URE OF RS. 9,20,717/ - . SIMILARLY, THE ASSESSING OFFICER FOUND THAT F.D. INTEREST DISCLOSED IN THE P & L A/C WAS RS. 8,48,930/ - WHEREAS THE F.D. INTEREST RECEIVED BY THE ASSESSEE AS PER TDS CLAIM MADE BY HIM IN THE RETURN OF INCOME WAS 9,23,259/ - . I N THIS CONNECTION, THE ASSESSEE I.T.A NO. 1168 /AHD/20 14 A.Y. 2009 - 10 PAGE NO VIMIT CONSTRUCTION VS. DCIT 3 STATED THAT BALANCE OF RS.74,329/ - WAS ACCOUNTED IN THE SUBSEQUENT YEAR, THEREFORE, THE ASSESSING OFFICER MADE ADDITI ON OF RS. 9,95,046/ - ( 9,20,717/ - + 74,329/ - ). THE ASSESSING OFFICER HAS INITIATED PROCEEDINGS U/S. 271(1)( C) OF THE ACT STATING THAT ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME THEREAFTER IMPOSED PENALTY OF RS. 3,38,200/ - AND HELD THAT ASSESSEE HAD COMMITTED DEFAULT U/S. 271(1)(C) OF THE ACT. 4. AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFIC ER, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE ID. CIT(A) HAS SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: - 4.2 I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE FACTS OF THE CASE AS ALSO THE OBSERVATION OF THE AO AND THE ARGUMENTS PUT FORTH BY THE AR OF THE APPELLANT. SO FAR AS ADDITION OF RS. 74329 IN RESPECT OF DIFFERENCE IN BANK INTEREST IS CONCERNED, DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS CLAIMED BY THE APPELLANT HAS CLAIMED THAT DIFFERENCE AMOUNT WAS OFFER ED FOR TAXATION IN THE SUBSEQUENT ASSESSMENT YEAR. IN THE SUBMISSION BEFORE THE UNDERSIGNED, THE APPELLANT IS CLAIMING THAT DUE TO SOME CORRECTION STATEMENT FILED BY DENA BANK THE DIFFERENCE HAS REDUCED TO RS. 71839. THE APPELLANT IS FURTHER CLAIMING THAT IT HAS OFFERED AN AMOUNT OF RS. 72818(RS. 7053+ RS. 65765) IN THE SUBSEQUENT YEAR. CLEARLY, CLAIMS ARE NOT MATCHING BECAUSE EVERYTIME THE APPELLANT IS COMING UP WITH A DIFFERENT FIGURE. IN SUPPORT OF THE CLAIM OF OFFERING RS. 72818 IN THE SUBSEQUENT YEAR, THE APPELLANT HAS FURNISHED A COPY OF INTEREST ACCOUNT OF FDR GIVEN BY THE DENA BANK AND ITS OWN LEDGER ACCOUNT IN RESPECT OF 'INTEREST INCOME ON I FDR'. IT IS SEEN FROM THE INTEREST STATEMENT OF DENA BANK THAT AMOUNT OF RS. 7053 WAS CREDITED ON 31/12/2008 WHEREAS AMOUNT OF RS. 65765 WAS CREDITED ON 31/12/2008. NO TDS WAS MADE ON THESE INTEREST CREDITS AND THEREFORE, THEY ARE NOT PART OF ENTRIES IN 26AS STATEMENT WHERE ONLY THOSE ENTRIES ARE APPEARING AGAINST WHOM SOME TAX IS DEDUCTED AT SOURCE. THEREFORE, CLAIM OF THE APPELLANT IS NOT CORRECT. SIMILARLY, RECONCILIATION GIVEN BY THE APPELLANT IN RESPECT OF SOLVAY SPECIALITIES INDIA PRIVATE LIMITED IS ALSO NOT VERIFIABLE. FIRSTLY, TOTAL AMOUNT OFFERED BY THE APPELLANT IN RESPECT OF THIS PARTY AND THE AMOUNT O N WHICH TAX HAS BEEN DEDUCTED BY THE PARTY HAS NOT BEEN I.T.A NO. 1168 /AHD/20 14 A.Y. 2009 - 10 PAGE NO VIMIT CONSTRUCTION VS. DCIT 4 GIVEN. THE APPELLANT HAS NOT FILED ANY CONFIRMATION FROM SOLVAY SPECIALITIES INDIA PRIVATE LIMITED IN SUPPORT OF ITS CLAIM. MOREOVER, WHEN THE BILL IN RESPECT OF AMOUNT OF RS. 644515.36 WAS RAISED BY THE APPELLANT ON 5/12/07 AND PAYMENT WAS ALSO RECEIVED FROM SOLVAY SPECIALITIES INDIA PRIVATE LIMITED, AS PER RECONCILIATION GIVEN BY THE APPELLANT, HOW DOES THE OCCASION TO DEDUCT EAX AGAIN ON AN AMOUNT OF RS. 644515.36 ARISES. THEREFORE, EXPLANATION OF T HE APPELLANT IN RESPECT OF SOLVAY SPECIALITIES INDIA PRIVATE LIMITED IS ALSO NOT CORRECT. SO FAR AS CLAIM OF THE APPELLANT THAT IN RESPECT OF ENTRIES IN 26 AS, THE APPELLANT IS ON THE MERCY OF TAX DEDUCTOR IS CONCERNED, THE APPELLANT CAN ALWAYS TAKE UP TH E MATTER OF ANY DISCREPANCY WITH THE TAX DEDUCTOR WHO CAN ISSUE A CERTIFICATE TO THE APPELLANT AND ALSO FILE A CORRECTION STATEMENT. THUS, RECONCILIATION OF ANY MISTAKE IN THE 26AS STATEMENT IS ALWAYS POSSIBLE. IF THE APPELLANT CHOOSES NOT TO RECONCILE, IT CANNOT TAKE SHELTER BEHIND THE PLEA THAT THERE IS A POSSIBILITY OF MISTAKE IN 26AS STATEMENT. ONUS IS ON THE APPELLANT TO PROVE THAT THERE IS A MISTAKE IN 26AS STATEMENT. IN VIEW OF THESE REASONS, I'M OF THE OPINION THAT FINDING OF THE AO THAT THE APPELL ANT HAS FURNISHED INACCURATE PARTICULARS OF INCOME IS JUSTIFIED. THEREFORE, LEVY OF PENALTY AMOUNTING T O RS. 338200 UNDER SECTION 271(1 )(C) OF THE IT ACT IS HEREBY CONFIRMED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AS PER RECORD. DURING THE COURSE OF APPELLATE PROCEEDINGS, LD. COUNSEL SUBMITTED PAPER BOOK CONTAINING BANK STATEMENT, TDS CERTIFICATE, COPY OF 26AS ETC. HE CONTENDED THAT ERROR IN CALCULATION OF TOTAL RECEIPT WAS OCCURRED BECAUSE OF INABILITY OF THE ASSESSEE TO RECON CILE IT WITH 26AS STATEMENT CONTAINING TRANSACTIONS WITH VARIOUS DEDUCTIONS. HE ALSO CONTENDED THAT ALL THESE INFORMATION WERE MADE AVAILABLE AS PER RECORD AND THERE WAS NO CONCEALMENT OR FURNISHING OF INACCURATE PARTICULARS OF INCOME . THE LD. COUNSEL HA S ALSO PLACED RELIANCE IN THE CASE OF R.R. CARRYING CORPORATION OF ITAT CUTTAK I.T.A NO. 1168 /AHD/20 14 A.Y. 2009 - 10 PAGE NO VIMIT CONSTRUCTION VS. DCIT 5 BENCH (2009) 30 DTR (CTK) (TRIB) 569. AS PER OUR CONSIDERED OPINION, IT IS EVIDENT FROM THE ABOVE MENTIONED FACT THAT THERE WAS NO CASE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AS INFORMATION WAS AVAILABLE AS PER RECORD AND THE MISTAKE WAS HAPPENED BECAUSE THE ASSESSEE WAS NOT ABLE TO RECONCILE THE DIFFERENCES AS ELABORATED SUPRA IN THIS ORDER. THEREFORE, WE CONSIDERED THE LD. CIT(A) WAS NOT JUSTIFIED IN SUSTAINING THE PENALTY LEVIED BY THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 04 - 05 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 04 /05 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,