M/s. United Infocom, Jaipur V. Income Tax Officer, Ward-5(1), Jaipur

ITA 133/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3492 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 05-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: FORM 26AS
• Section: 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,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 VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 133/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S UNITED INFOCOM C/O SANTOSH KASLIWAL, PARTNER, B-15, GOVIND DEV COLONY, GANGORI BAZAR, JAIPUR. CUKE VS. THE ITO, WARD-5(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABFU 8694 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH JAIN (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/02/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 28/02/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-IV, JAIPUR DATED 16.11.2018 FOR THE ASSESSME NT YEARS 2008-09. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSMENT PROCEEDINGS IN THIS CASE WERE COMPLETED BY THE ASSESSING OFFICER U/S 144 R/W 147 OF THE IT ACT. DURING THE C OURSE OF APPELLATE PROCEEDINGS, THE ADJOURNMENT APPLICATION FILED BY T HE ASSESSEE WAS REJECTED BY THE LD. CIT(A) AND THE APPEAL OF THE A SSESSEE HAS BEEN ITA NO. 133/JP/2019 M/S UNITED INFOCOM VS. ITO 2 DISMISSED EX-PARTE. IT WAS SUBMITTED THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN TELECOMMUNICATION SERVICES AS FRANC HISEE OF RELIANCE COMMUNICATION SINCE THE YEAR 2005 AND HAS FILED ITS INCOME TAX RETURN REGULARLY AND FOR THE ASSESSMENT YEAR 2008-09 ALSO, THE ASSESSEE FIRM HAS FILED ITS INCOME TAX RETURN WITH IT WARD 5(1) D ECLARING TURNOVER OF RS. 10,86,531/- FROM M/S UNITED INFOCOM IN ADDITION TO COMMISSION AND OTHER INCOME OF RS. 5,57,537/- CLAIMING REFUND OF R S. 56,550/-. IT WAS SUBMITTED THAT THE RETURN OF INCOME WAS DULY PROCES SED AND THE REFUND HAS BEEN GRANTED BY THE DEPARTMENT. IT WAS FURTHER SUBMITTED THAT DESPITE SUCH FILING OF THE INCOME TAX RETURN BY THE ASSESSEE, THE ASSESSING OFFICER HAD ISSUED A NOTICE U/S 148 OF TH E ACT PROPOSING TO ASSESS INCOME FOR A.Y. 2008-09 FOR THE REASONS THAT THE ASSESSEE HAS NOT FILED ITS RETURN OF INCOME. IT WAS FURTHER SUBM ITTED THAT THE ASSESSING OFFICER HAS CONSIDERED COMMISSION RECEIPT S OF RS. 5,38,942/- FOR RELIANCE COMMUNICATION INFRASTRUCTURE LTD. AS REFLECTED IN FORM 26AS AND BASIS THE SAME, HE HAS ESTIMATED THE RECE IPT OF RS. 5,50,000/- AND CALCULATED ARBITRARY INCOME @ 55 % I.E. RS. 3,02,500/- WITHOUT LOOKING INTO THE FACT THAT THE A SSESSEE IS A REGULAR INCOME TAX PAYER AND HAS FILED ITS INCOME TAX RETUR N WHEREIN THE COMMISSION RECEIPT OF RS. 5,32,106/- DULY DISCLOSED BY THE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSMENT SO MA DE BY THE ASSESSING OFFICER SHOULD BE QUASHED AND NECESSARY R ELIEF MAY BE GRANTED TO THE ASSESSEE. 3. PER CONTRA, THE LD. DR SUBMITTED THAT THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER U/S 144 R.W.S.147 OF THE A CT AND EVEN IN RESPONSE TO NOTICE U/S 148 OF THE ACT, NO RETURN OF INCOME HAS BEEN ITA NO. 133/JP/2019 M/S UNITED INFOCOM VS. ITO 3 FILED BY THE ASSESSEE, THEREFORE, BASIS THE INFORMA TION AVAILABLE ON RECORD, THE ASSESSING OFFICER HAS CARRIED OUT BEST JUDGMENT ASSESSMENT AND ASSESSED RS. 3,03,550/- AS INCOME IN THE HANDS OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT EVEN BEFORE THE LD. CIT( A) IN SPITE OF AS MANY AS SIX OPPORTUNITIES GIVEN TO THE ASSESSEE/AR, NO COMPLIANCE HAS BEEN MADE BY THE ASSESSEE. REGARDING FILING OF RETU RN OF INCOME, IT WAS SUBMITTED THAT THERE IS NOTHING IN THE ASSESSMENT O RDER THAT THE ASSESSEE HAS FILED ANY RETURN OF INCOME PRIOR TO IS SUANCE OF NOTICE U/S 148 OF THE ACT AND IT WAS SUBMITTED THAT WHERE THE BENCH SO DECIDE, THE MATTER MAY BE REMANDED TO THE FILE OF THE AO TO EXAMINE AS TO WHETHER THE ASSESSEE HAS FILED HIS RETURN OF INCOME OR NOT AS THERE IS NOTHING ON RECORD TO SUPPORT THE SAID CONTENTION SO RAISED BY THE LD. AR. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT CASE OF THE ASSES SEE WAS REOPENED U/S 147 OF THE ACT FOR THE REASONS THAT THE ASSESSE E HAS NOT FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION A ND THEREAFTER BASIS INFORMATION AVAILABLE ON RECORD, THE ASSESSMENT HAS BEEN COMPLETED U/S 144 R.W.S. 147 OF THE ACT WHEREIN COMMISSION IN COME HAS BEEN BROUGHT TO TAX. THE LD. AR HAS CONTENDED THAT THE ASSESSING OFFICER HAS NOT TAKEN INTO CONSIDERATION THE RETURN ALREADY FILED BY THE ASSESSEE PRIOR TO ISSUANCE OF NOTICE U/S 148 OF THE ACT WHER EIN IT HAS DISCLOSED A TURNOVER OF RS. 10,86,531/- BESIDES COMMISSION INCO ME OF RS. 5,32,106/- AND OTHER INCOME OF RS. 3,441/-. IT WAS SUBMITTED THAT WHERE COMMISSION INCOME HAS ALREADY BEEN OFFERED TO TAX, THE SAME CANNOT BE BROUGHT TO TAX AGAIN. IT WAS FURTHER SUB MITTED THAT THE SAID ITA NO. 133/JP/2019 M/S UNITED INFOCOM VS. ITO 4 RETURN OF INCOME HAS BEEN DULY PROCESSED BY THE INC OME TAX DEPARTMENT AND EVEN THE REFUND CLAIMED BY THE ASSES SEE HAS BEEN GRANTED BY THE INCOME TAX DEPARTMENT. IT IS A SETTL ED LEGAL PROPOSITION THAT WHERE THE INCOME HAS ALREADY BEEN OFFERED TO T AX, THE SAME INCOME CANNOT BE BROUGHT TO TAX AGAIN IN THE HANDS OF THE ASSESSEE. FROM THE PERUSAL OF THE ASSESSMENT ORDER, WE HOWEVE R FIND THAT THERE IS NOTHING WHICH HAS BEEN STATED AS TO FILING OF RE TURN OF INCOME BY THE ASSESSEE AND THEREFORE, THERE IS NO FINDING WHICH H AS BEEN RECORDED BY THE ASSESSING OFFICER TO THIS EFFECT. THEREFORE, T HE ASSESSEES CLAIM OF HAVING FILED ITS RETURN OF INCOME AND OFFERING THE COMMISSION INCOME TO TAX NEEDS TO BE VERIFIED. WE THEREFORE SET-ASIDE TH E MATTER TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SAID CLAIM OF THE ASSESSEE AND DECIDE THE MATTER A FRESH AFTER PROVIDING REASONABL E OPPORTUNITY TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO ATTEND TO THE PROCEEDINGS BEFORE THE ASSESSING OFFICER AND PROVIDE NECESSARY INFORMATION AND DOCUMENTATION AS MAY BE CALLED FOR. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/02/2020. 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:-28/02/2020. * SANTOSH ITA NO. 133/JP/2019 M/S UNITED INFOCOM VS. ITO 5 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S UNITED INFOCOM, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(1), JAIPUR. 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. 133/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.