M/s. B.D. Singh, Burdwan V. ACIT, Circle - 3, Asansol, Asansol

ITA 1478/KOL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59643 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2012
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 03-11-2011
• Court: TRIBUNAL
• Department Lawyers: ANJAN PD ROY
• Assessee Lawyers: S M SURANA
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , !' !' !' !' /AND #! $'# #! $'# #! $'# #! $'# , ) [BEFORE SHRI PRAMOD KUMAR, AM & SHRI MAHAVIR SINGH, JM] '% '% '% '% / I.T.A NO. 1473/KOL/2011 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR : 2007-08 INCOME-TAX OFFICER, WD-1(2), ASANSOL VS. M/S. B. D. SINGH (PAN:AAGFB 7827 A) (+, /APPELLANT ) (-+,/ RESPONDENT ) & '% '% '% '% / I.T.A NO. 1478/KOL/2011 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR : 2007-08 M/S. B. D. SINGH VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-3, ASANSOL (+, /APPELLANT ) (-+,/ RESPONDENT ) FOR THE REVENUE: SHRI ANJAN PD. ROY FOR THE ASSESSEE: SHRI S. M. SURANA DATE OF HEARING: 27.02.2012 DATE OF PRONOUNCEMENT: 23.03.2012 . / ORDER PER MAHAVIR SINGH, JM ( #! $'# #! $'# #! $'# #! $'#, , , , ) THESE CROSS APPEALS BY REVENUE AND ASSESSEE ARE ARI SING OUT OF ORDER OF CIT(A), ASANSOL IN APPEAL NO.125/CIT(A)/ASL/R-3/ASL/2009-10 DATED 1 8.08.2011. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-3, ASANSOL U/S. 143(3) OF THE INCOME T AX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2007-08 VIDE HIS ORD ER DATED 18.12.2009. 2. THE FIRST ISSUE IN REVENUES APPEAL IN ITA NO.14 73/K/2011 IS AS REGARDS TO THE ORDER OF CIT(A) ALLOWING EXPENSES CLAIMED BY ASSESSEE UNDER THE HEAD HYWA RUNNING EXPENSES. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NO.1: 1. THAT LD. CIT(A) ERRED IN ALLOWING RELIEF AGAINS T THE DISALLOWANCES OF ENTIRE EXPENSES CLAIMED BY THE ASSESSEE UNDER THE HEAD HYWA RUNNING EXPENSES. ASSESSEE PRODUCED FRESH EVIDENCE LETTER DATED 29.12.2009 FROM M/S. CISC IN SUPPORT OF THE CLAIM OF EXPENDITURE BEFORE CIT(A) DURING THE COURSE OF APPELLATE PROCEE DINGS VIOLATING RULE 46A. 2 ITA 1473 & 1478/K/2011 M/S. B,.D. SINGH A.Y. 07-08 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ONLY GRIEVANCE OF THE REVENUE IS THAT THE CIT(A) HAS ENTERTAINED FRESH EVIDENCE WITHOUT PROVIDING OPPORTUNITY TO ASSESSING OFFICER. WHEN WE HAVE GONE THROUGH THE CASE RECORDS, WE FIND THAT ASSESSING OFFICER HAS DISALLO WED ENTIRE HYWA RUNNING EXPENSES AS THE ASSESSEE WAS UNABLE TO PRODUCE LEDGER RELATING TO T HESE EXPENSES WITHOUT SUPPORTING BILLS AND VOUCHERS. THE ASSESSEE HAS CLAIMED THESE EXPENSES ON ACCOUNT OF HIRING OF DUMPERS FROM ANOTHER SISTER CONCERN M/S. CISC FOR THEIR SITE AT BASUNDHARA (ORISSA). THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS FILED COPY OF TDS C ERTIFICATES AND ALSO CONFIRMATION FROM CISC DATED 29.12.2009. THE CIT(A) FORWARDED THESE EVIDE NCES TO ASSESSING OFFICER VIDE HIS OFFICE LETTER NO. CIT(A)/ASL/2010-11/194 DATED 21.09.2010. IT IS ALSO ON RECORD A LETTER NO. 3236- 37/CIT/ASL/2010-11 DATED 27/28.09.2010 OF ITO, TECH NICAL FOR CIT, ASANSOL ASKING THE ASSESSING OFFICER TO SEND THE REQUIRED REMAND REPOR T. A REMINDER WAS ISSUED TO THE ASSESSING OFFICER BY CIT(A) VIDE HIS LETTER NO. CIT(A)/ASL/20 10-11/20-21 DATED 12.04.2011. COPY OF THIS LETTER WAS MARKED BY CIT, ASANSOL. ON 26.04.2011, LETTER NO. JCIT/CIR-3/ASL/RR/20121-12/07 DATED 25.04.2011 WAS RECEIVED FROM THE ASSESSING OF FICER BY CIT(A) WHEREIN HE COMMITTED TO SUBMIT THE REQUIRED REPORT AT THE EARLIEST. SINCE THEN ALMOST 4 MONTHS PASSED BUT NO REPORT HAS BEEN FORWARDED BY THE ASSESSING OFFICER TO CIT(A). IN VIEW OF THIS, HE DELETED THE ADDITION BY GIVING FOLLOWING FINDING: I THEREFORE PRESUME THAT HE HAS NO COMMENTS TO OFF ER ON THIS ISSUE. IT IS FURTHER SEEN FROM THE DOCUMENTS SUBMITTED BEFORE ME THAT THE HIR ER OF THE HYWAS, M/S C.1.S.C. HAVE CONFIRMED THAT THE TRANSPORT/HIRE CHARGES PAYABLE T O THE APPELLANT FOR THE F.Y. 2006-07 WAS RS.39,86,886.92. TDS ON THAT AMOUNTING TO RS.44 ,731/- IS SEEN TO HAVE BEEN DEDUCTED AND PAID INTO THE GOVERNMENT ACCOUNT ON DI FFERENT DATES AS PER COPY OF THE CERTIFICATE ISSUED. M/S C.L.S.C., AS PER THEIR CONF IRMATION HAS ALSO DEBITED RS.27,83,669.08, ON ACCOUNT OF HYWA RUNNING EXPENSE S AND REMITTED THE BALANCE AMOUNT OF RS.12,38,705.16 TO THE APPELLANT. I FIND BOTH THE FIGURES OF RECEIPTS AS WELL AS EXPENDITURE REFLECTED IN THE P/L ACCOUNT OF THE APP ELLANT FOR THE YEAR ENDING 31.03.2007. THE COPY OF TDS CERTIFICATE FILED ALSO CONFIRMS THE AMOUNT OF DEDUCTION. UNDER THE CIRCUMSTANCES, 1 FIND NO GROUND TO DISBELIEVE THE A PPELLANTS CLAIM OF HYWA RUNNING EXPENSES. THIS DISALLOWANCE IS THEREFORE DIRECTED T O BE DELETED. 4. WE FIND THAT THERE IS NO VIOLATION OF RULE 46A O F THE I. T. RULES, 1962 AS THE CIT(A) AT LEAST FOUR TIMES REQUIRED THE ASSESSING OFFICER TO SEND REMAND REPORT ON THE EVIDENCES I.E. NEW EVIDENCES WHICH WERE FORWARDED TO HIM WITH THE SUBM ISSIONS OF THE ASSESSEE BUT ASSESSING OFFICER HAS NOT TAKEN ANY PAIN TO REVERT BACK OR SE ND HIS REMAND REPORT. IN VIEW OF THIS, THE PLEA OF THE REVENUE THAT THE CIT(A) HAS ENTERTAINED NEW EVIDENCES IN VIOLATION OF RULE 46A OF THE RULES IS WITHOUT ANY BASIS. HENCE, WE CONFIRM THE O RDER OF CIT(A) BECAUSE REVENUE HAS NO OBJECTION ON THE ISSUE OF MERITS. THIS ISSUE OF RE VENUES APPEAL IS DISMISSED. 3 ITA 1473 & 1478/K/2011 M/S. B,.D. SINGH A.Y. 07-08 5. THE NEXT ISSUE WHICH IS COMMON IN REVENUES APPE AL AS WELL AS ASSESSEES APPEAL IS AS REGARDS TO THE ORDER OF CIT(A) CONFIRMING THE DISAL LOWANCE OF RS.50,000/-. FOR THIS, BOTH THE PARTIES HAVE RAISED THE FOLLOWING GROUNDS: GROUND NO. 2 OF REVENUES APPEAL: 2. THAT LD. CIT(A ERRED IN ALLOWING RELIEF AGAINST THE DISALLOWANCE OF 50% OF THE TOTAL EXPENSES CLAIMED BY THE ASSESSEE UNDER THE HEAD LOA DING CHARGES AND LABOUR CHARGES (COAL BREAKING) FOR WANT OF PROPER BILLS & VOUCHERS. THE LD. CIT(A) RESTRICTED THE DISALLOWANCE TO RS.50 ,000/- ON THE GROUND THAT SIMILAR AMOUNT WAS CONFIRMED BY HIS PREDECESSOR IN THE APPELLANTS CASE FOR THE ASSESSMENT YEAR 2006-07 ON THE SIMILAR GROUND. GROUND NO.3 OF ASSESSEES APPEAL: 3. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.50,000/- BEING THE EXPENSES INCURRED UNDER THE HEAD LOADING AND LABOUR CHARGES SIMPLY ON THE BASIS OF EARLIER YEARS, WHEN THE EXPENSES INCURRED DURING THE YEAR W ERE MUCH LESS IN COMPARISON TO THE EARLIER YEARS. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE HAS CLAIMED LOADING CHARG ES, LABOUR CHARGES, COAL BREADING CHARGES AT RS.29,34,795/- AND RS.22,49,475/- RESPECTIVELY. TH E ASSESSING OFFICER DISALLOWED 50% OF THESE EXPENSES BY RELYING ON THE EARLIER YEARS DEC ISION OF CIT(A) IN APPEAL NO.203/CIT(A)/ASL/WARD-1(1)/2008-09 DATED 17.06.200 9 IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07, WHEREIN CIT(A) HAS GIVEN A COMPARATIVE FINDING THAT THE ASSESSEE HAS CLAIMED RS.64,26,028/- TOWARDS THESE EXPENSES W HEREAS IN THE CORRESPONDING FIGURE OF THE CURRENT YEAR IS RS.51,84,270/- AND IN SIMILAR CIRCU MSTANCES, THE CIT(A) IN EARLIER YEAR CONFIRMED ONLY RS.50,000/- AND IN THIS YEAR ALSO AC CORDINGLY, CIT(A) CONFIRMED RS.50,000/-. WE FIND NO REASON TO INTERFERE IN THE SAME AND ACCO RDINGLY, THE ORDER OF CIT(A) IS CONFIRMED AND THIS ISSUE OF APPEAL OF REVENUE AS WELL AS ASSE SSEE IS DISMISSED. 7. THE NEXT ISSUE IN ASSESSEES APPEAL IS AS REGARD S TO THE ORDER OF CIT(A) CONFIRMING THE DISALLOWANCE OF EXPENSES AT RS.3,74,785/-. FOR THI S, ASSESSEE HAS RAISED FOLLOWING GROUND NO.2: 2. FOR THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.3,74,785/- BEING THE EXPENSES UNDER THE HEAD OTHER EXPENSES WHEN THE BOO KS OF ACCOUNTS WERE ADMITTEDLY PRODUCED BEFORE THE LD. A.O. WHICH INCLUDED THE LED GER ALSO AND SUCH EXPENSES WERE ALWAYS ALLOWED IN THE PAST. 4 ITA 1473 & 1478/K/2011 M/S. B,.D. SINGH A.Y. 07-08 8. THE ASSESSING OFFICER DISALLOWED THESE EXPENSES AS THE SAME ARE NOT SUPPORTED BY ANY LEDGER OR BILLS OR VOUCHERS. BEFORE US, LD. COUNSE L FOR THE ASSESSEE RELYING ON ITAT DECISION IN ASSESSEES OWN CASE IN ITA NO.1656/K/2009 FOR AS SESSMENT YEAR 2006-07, WHEREIN TRIBUNAL VIDE ORDER DATED 11 TH OCTOBER, 2011 HAS CONFIRMED THE ADDITION OF RS.1 L AC BY HOLDING AS UNDER: 6. CONSIDERING THE ABOVE SUBMISSIONS AND AFTER PER USING THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT THE DISALLOWANCE IS TO BE CONSIDERED ON THIS COUNT OF RUNNING EXPENSES WHERE PAYMENTS HAD BEEN MADE IN CA SH AND IT WOULD MEET THE ENDS OF JUSTICE, AS WE ARE OF THE VIEW THAT LD. CIT(A) REST RICTED THE DISALLOWANCE TO RS.50,000/- ON THE LOWER SIDE AND ON THE SAME WAY, THAT DISALLOWAN CE MADE BY THE ASSESSING OFFICER TO THE TUNE OF RS.2,50,000/- IS ON THE HIGHER SIDE. HENCE , AFTER CONSIDERING THE ABOVE SUBMISSIONS, WE ARE OF THE VIEW THAT UNDER THIS HEA D RUNNING EXPENSES, THE ADDITION HAS TO BE ULTIMATELY RS.1.00 LAKH AND TO THAT THAT EXTENT REVENUE SUCCEEDS. SIMILAR ARE THE FACTS IN THIS YEAR ALSO AND CONSIDE RING THE FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING TRIBUNALS DECISION IN IMMED IATE PRECEDING YEAR, WE ALSO RESTRICT THE ADDITION TO RS. 1 LAKH IN THIS YEAR AND THIS GROUND OF APPEAL OF ASSESSEE IS PARTLY ALLOWED. 9. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED AN D APPEAL OF ASSESSEE IS PARTLY ALLOWED. 10. ORDER PRONOUNCED IN OPEN COURT ON 23.03.2012. SD/- SD/- , #! #! #! #! $'# $'# $'# $'# , (PRAMOD KUMAR) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( / / / /) )) ) DATED : 23RD MARCH, 2012 !01 $&23 $4! JD.(SR.P.S.) . 5 $$ 6(7- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT ITO, WARD-1(2), ASANSOL ACIT, CIRCLE-3, ASANSOL 2 -+, / RESPONDENT, M/S. B. D. SINGH, 5, RUPNARAYANPUR, B URDWAN, PIN- 713364 3 . $.& ( )/ THE CIT(A), ASANSOL 4. $.& / CIT, 5 . !>$? $& / DR, KOLKATA BENCHES, KOLKATA - $/ TRUE COPY, .&/ BY ORDER, # '3 /ASSTT. REGISTRAR .