AJAYMERU INFRASTRUCTURE PVT. LTD., Ajmer V. ITO, Ajmer

ITA 149/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2194 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 17-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Depreciation; Business expenditure; Difference of opinion

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 149/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 M/S. AJAYMERU INFRASTRUCTURE (P) LTD. 14, JLN SHOPPING CENTRE, AJMER CUKE VS. THE ITO WARD- 2 (1), AJMER LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAECA 7416 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: NONE (DATE WAS NOTED) JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/04/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 03/04/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 30-01-2017 FOR THE ASSESSMENT YEAR 201 0-11 RAISING THEREIN GROUND OF APPEAL AS UNDER:- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) HAS ERRED IN CONFIRMING PENALTY U/S 271(1)(C ) OF RS. 2,47,670/- WITHOUT APPRECIATING THE FACTS. 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPIT E OF RECEIPT OF NOTICE BY THE LD. AR OF THE ASSESSEE ON 17-02-2017 TO ATTEND THE HEARING OF APPEAL FIXED ON 03-04-2017. CONSEQUENTLY THE BE NCH IS LEFT WITH NO ITA NO. 149/JP/2017 M/S. A JAYMERU INFRASTRUCTURE (P) LTD. VS. ITO, WARD- 2(1) , AJMER 2 ALTERNATIVE BUT TO DECIDE THE APPEAL ON MERITS, EX PARTE QUA THE ASSESSEE, AFTER HEARING LD. DR AND AFTER PERUSAL OF THE MATER IALS AVAILABLE ON RECORD. 3.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 4.3 I HAVE GONE THROUGH THE PENALTY ORDER, STATEM ENT OF FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSION CAR EFULLY. IT IS SEEN THAT THE PENALTY HAS BEEN LEVIED BY THE ASS ESSEE IN RESPECT OF BOGUS EXPENSES OF RS. 6,04,461/- AND EX CESS DEPRECIATION OF RS. 1,97,066/-. THE CIT(A), AJMER VIDE HIS ORDER DATED 26-02-2015 HAS CONFIRMED BOTH THESE ADD ITIONS OBSERVING AS UNDER:- 4.3 I HAVE CONSIDERED THE CONTENTIONS OF THE APPE LLANT AS WELL AS ASSESSMENT ORDER. IT IS SEEN THAT FROM THE COPY OF BILLS PRODUCED BY THE ASSESSEE THAT IN BILLS FOR DIESEL PURCHASED FROM M/S. RAJA CYCLE & MOTOR GARAGE AJMER, A HAS CUT OUT THE NAME OF M/S . MUKESH G GOYAL AND HAS REPLACED ITS NAME I.E. AJAMERU INFRAS TRUCTURE P. LTD. OR HAS MARKED AIPL C/O M/S. MUKESH G. GOYAL. THES E BILLS HAVE BEEN TEMPERED. OBVIOUSLY THE BILLS PERTAIN TO M/S. MUKES H G. GOYAL AND ASSESSEE HAD NO LIABILITY TO PAY THE AMOUNTS FOR TH E DIESEL EXPENSES INCURRED BY M/S. MUKESH G. GOYAL EVEN IN RESPECT OF THE WORK SUBLETTED TO M/S. MUKESH G. GOYAL AS PER THE TERMS OF THE SUB-CONTRACT. THE ASSESSEE HAS ONLY EXPLAINED THAT NAME OF M/S. M UKESH G. GOYAL WAS WELL KNOWN AND KNOWN TO SUPPLIER I.E. M/S. RAJA CYCLE & MOTOR GARAGE AJMER. HENCE, BILLS WERE ISSUED IN HIS NAME. HOWEVER, IF THERE ARE DIFFERENT CONTRACTORS, EVERYBODY TAKES THE BILL IN THE NAME OF THE OWN CONCERN AND NOT IN NAME OF SOMEBODY ELSE JUST B ECAUSE THE OTHER CONCERN IS WELL KNOW. THE ASSESSEE'S CLAIM THAT AMO UNTS HAVE BEEN PAID BY CHEQUE DOES NOT JUSTIFY THAT THESE PAYMENTS ARE FOR THE GOODS PURCHASED FOR THE BUSINESS OF THE ASSESSEE. THE ASS ESSEE HAS MERELY FILED THE COPY OF LEDGER ACCOUNT AND COPY OF SUCH B ILLS WHICH DOES NOT SHOW THAT THERE IS ANY CONFIRMATION FROM THE SUPPLI ER THAT GOODS WERE SUPPLIED TO THE ASSESSEE. IN ANY CASE, NO SUCH CONF IRMATIONS HAVE BEEN FILED AT ANY STAGE. THE AOS FINDING THAT THERE CANNOT BE ANY DIESEL EX PENSES IN AUGUST 2009 WHEN WORK WAS EXECUTED FROM THE MONTH O F SEPT. 2009 AND FIRST LABOUR PAYMENT WAS MADE ON 16-10-2009 ALS O SUPPORTS THE DISALLOWANCE MADE BY THE AO. ITA NO. 149/JP/2017 M/S. A JAYMERU INFRASTRUCTURE (P) LTD. VS. ITO, WARD- 2(1) , AJMER 3 IN VIEW OF ABOVE DISCUSSION AND FINDINGS OF THE AO, THE DISALLOWANCE MADE BY THE AO OF RS. 6,04,461/- IS CO NFIRMED. 5.3 I HAVE CONSIDERED THE CONTENTIONS OF THE APPEL LANT AS WELL AS ASSESSMENT ORDER. IT IS SEEN THAT THE ASSES SEE HAS NOT BEEN ABLE TO SHOW THAT TWO DUMPERS WERE GIVEN FOR HIRING BY A NY EVIDENCE THOUGH THE ASSESSEE HAS CREDITED PALTRY AMOUNT OF R S. 23,548/- FOR HIRING OF DUMPERS. THE SAID CLAIM IS NOT SUPPORTED BY ANY EVIDENCE. THE QUERIES RAISED BY THE AO AS TO WHEN AND FOR HOW MANY DAYS THE DUMPERS WERE HIRED OUT ALSO REMAINS UNANSWERED. EVE N OTHERWISE AS HELD BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MANJEET STONE CO. 190 ITR 183 (RAJ.), THE MERE FACT THAT SM ALL PORTION OF INCOME IS REQUIRED FROM BUSINESS OF HIRING FROM TWO OR THREE TRANSACTIONS OF HIRING WILL NOT EFFECT THE ELIGIBIL ITY OF THE DEPRECIATION WHEN THE VEHICLE WERE MAINLY USED IN THE OWN BUSINE SS OF THE ASSESSEE. IN VIEW OF ABOVE DISCUSSION AND FINDINGS OF THE AO, THE DISALLOWANCE MADE BY THE AO IS CONFIRMED. IT IS CLEAR FROM THE ORDER OF THE CIT(APPEAL) THAT THE CIT(APPEAL ) HAS CONFIRMED THE DISALLOWANCE OF RS. 6,04,461/- OBSERVING THAT THERE COULD NOT HAVE BEEN ANY BUSINESS EXPENSES IN AUGUST, 2009 WHEN THE WORK WAS EXECUTED FROM THE MONTH OF SEPT. 2009. THE DISALLOW ANCE OF DEPRECIATION WAS ALSO CONFIRMED BY CIT (APPEAL) AS THE APPELLANT HAD CLAIMED EXCESS DEPRECIATION (@30% ON TWO DUMPERS), WHEREAS THE ALLOWABLE DEPRECIATION WAS ON LY 15%. BOTH THE DISALLOWANCES MADE BY THE AO AND CONFIRMED BY THE CIT (APPEAL) ARE BASED ON THE EVIDENCES AND ACC ORDING TO THE PROVISION OF THE I.T. ACT . IT IS NOT A CASE OF ESTIMATION OF INCOME OR DISALLOWANCE OF EXPENSE ON ESTIMATE BA SIS NOR IT IS A CASE OF DIFFERENCE OF OPINION. BOTH THE CLA IMS MADE BY THE APPELLANT WERE INADMISSIBLE WHICH WERE KNOWN TO THE APPELLANT. THEREFORE, I AM OF THE CONSIDERED VIEW T HAT THE APPELLANT HAD FILED INACCURATE PARTICULARS OF INCOM E OF RS. 8,01,527/- (RS. 6,04,461 + RS. 1,97,066). HENCE, TH E PENALTY OF RS. 2,47,670/- LEVIED BY THE AO U/S 271(1)(C ) I S HEREBY CONFIRMED. 5.0 IN THE RESULT, THE APPEAL IS DISMISSED. 3.2 I HAVE HEARD THE LD. DR AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. IT IS NOTED FROM THE RECORD THAT THE A SSESSEE HAS NOT FILED ANY ITA NO. 149/JP/2017 M/S. A JAYMERU INFRASTRUCTURE (P) LTD. VS. ITO, WARD- 2(1) , AJMER 4 SUBMISSION CONTROVERTING THE ORDERS OF LOWER AUTHOR ITIES. IN SUCH A SITUATION, I HAVE NO ALTERNATIVE EXCEPT TO CONCUR W ITH THE VIEWS OF THE LD. CIT(A) ON THE ISSUE IN QUESTION. THUS SOLITARY GROU ND OF THE ASSESSEE IS DISMISSED. 4.0 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03-04-2 017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03 /04/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. AJAYMERU INFRASTRUCTURE (P) LTD ., AJMER 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(1), AJMER 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 149/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR