Shri Jitendrakumar Amratlal Kachhia, Kheda V. The Tax Recovery Officer(A.O.), Kheda

ITA 1536/AHD/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0171 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-08-2010
• Assessment Year: 2007-2008
• Appeal Filed On: 10-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Section: 40A(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : SMC BENCH : AHMEDABA D (BEFORE HON'BLE SHRI T.K. SHARMA, JUDICIAL MEMBER ) I.T.A. NO. 1536/AHD./2010 ASSESSMENT YEAR : 2007-2008 SHRI JITENDRAKUMAR AMRATLAL KACHHIA, -VS.- TAX RECOVERY OFFICER (A.O.), KHEDA (PAN : AESPK 7659 B) KHEDA RANGE, N ADIAD (APPELLANT) (RES PONDENT) APPELLANT BY : SHRI MANISH RAJVAID YA RESPONDENT BY : SHRI K.M. MAHESH, SR. D.R. O R D E R THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 05.03.2010 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, BARODA FOR THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS :- (1) THE LEARNED CIT(A.) HAS ERRED IN LAW AND ON FACTS W HILE NOT GIVING THE OPPORTUNITY TO THE APPELLANT FOR PERSONAL HEARING I N VIEW OF THE FACTS THAT THE APPELLATE ORDER WAS PASSED MERELY ON WRITT EN SUBMISSION OF THE APPELLANT WHICH WAS FILED BY THE APPELLANT IN T HE COURSE OF THE EARLIER HEARING FIXED WHEN THE LD. CIT(A.) WAS NOT PRESENT ON THE GIVEN DATE OF THE HEARING AND THE APPELLANT HAD FILED THE WRITTEN SUBMISSION WHILE ALSO REQUESTING FOR PERSONAL HEARING. (2) THE LD. CIT(A.) WAS ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE ADDITION MADE BY THE LD. A.O. TO THE EXTENT OF RS.1 7,178/- ON ACCOUNT OF PURCHASE OF DAL OUT OF THE BOOKS MERELY ON SURMISES AND CONJECTURES WITHOUT CONSIDERING THE FACTS OF THE CASE OF THE AP PELLANT. (3) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE ADDITION OF RS.8,675/- MADE BY THE A.O. ON ACCOUNT OF GOL NOT SHOWN IN THE CLOSING STOCK WITHOUT CONSIDERING THE SUBMISSIO NS OF THE APPELLANT AND THE FACTS OF THE APPELLANT. (4) THE LD. CIT(A.) HAS ERRED IN LAW AND ON FACTS WHILE CONFIRMING THE ADDITION OF RS.1,94,060/- U/S. 40A(3) FOR PURCHASES MADE IN CASH OF KEROSENE BY THE APPELLANT, WITHOUT CONSIDERING THE NATURE OF BUSINESS ACTIVITY OF THE APPELLANT AND THE SITUATION AND REA SON FOR CASH PURCHASES AS NARRATED BY THE APPELLANT. 2 ITA NO. 1536/AHD/2010 2. GROUND NO. 1 OF THIS APPEAL WAS NOT PRESSED BY T HE LD. COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING. THEREFORE, THIS GROUND OF APPEAL IS BEI NG DISMISSED AS NOT PRESSED. 3. WITH REGARD TO THE GROUND NO. 2, SHRI MANISH RAJ VAIDYA, LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE RELYING ON THE REASONING GIVEN BEFO RE THE ASSESSING OFFICER CONTENDED THAT THE ADDITION OF RS.17,614/- BE DELETED. ON THE OTHER HA ND, SHRI K.M. MAHESH, LD. SR. D.R. APPEARING ON BEHALF OF THE REVENUE SUPPORTED THE ORDER OF AUT HORITIES BELOW. 4. AFTER CAREFULLY GOING THROUGH THE ORDERS OF AUTH ORITIES BELOW, I AM OF THE VIEW THAT THE ADDITION OF RS.17,614/- WAS RIGHTLY MADE BY THE ASS ESSING OFFICER AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN THE IMPUGNED ORDER. AS A MATTER OF FACT, THE ASSESSEE HAS NOT SHOWN PURCHASES AGAINST SALE OF DAL AMOUNTI NG TO RS.17,614/-. I, THEREFORE, DECLINE TO INTERFERE WITH THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS). RESULTANTLY, GROUND NO. 2 IS REJECTED. 5. WITH REGARD TO THE CONTROVERSY INVOLVED IN GROUN D NO. 3, AFTER HEARING BOTH THE SIDES, I AM CONVINCED THAT THE ADDITION OF RS.8,671/- WAS RI GHTLY MADE BY THE ASSESSING OFFICER. IN THE BOOKS OF ACCOUNTS, THE ASSESSEE HAS SHOWN PURCHASE OF RS.17,373/- OF GOL, AGAINST WHICH SALES OF RS.9,850/- WERE RECORDED, WHEREAS NO CLOSING STOCK WAS SHOWN. THUS I INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) CONFIRMING THE ADDITION OF RS.8,671/-. RESULTANTLY, GROUND NO. 3 IS REJECTED. 6. COMING TO THE LAST GROUND OF APPEAL, WE SPECIFIC ALLY ASKED THE LD. COUNSEL OF THE ASSESSEE TO POINT OUT THE EXCEPTIONS TO SECTION 40A(3), WHIC H ARE LISTED IN RULE 6DD OF INCOME TAX RULES UNDER WHICH THE CASE OF THE ASSESSEE IS COVER ED. THE LD. COUNSEL OF THE ASSESSEE FAIRLY ADMITTED THAT HIS CASE IS NOT COVERED BY ANY OF THE EXCEPTIONS. HOWEVER, HE POINTED OUT THAT KEROSENE WAS SOURCED FROM AUTHORIZED DEALERS SITUAT ED IN TOWNS LIKE NADIAD, SEVALIA, KAPADAVANJ & MEHAMADABAD, WHERE ASSESSEE DID NOT HA VE BANK A/C. EXCEPT NADIAD. THE LICENSE OF NADIAD BANK WAS TERMINATED BY RESERVE BANK OF IN DIA. THE SUPPLIERS INSISTED ON IMMEDIATE PAYMENT EITHER BY CASH OR DEMAND DRAFT. HOWEVER, FO R MAKING DEMAND DRAFTS, HUGE BANK CHARGES WERE TO BE PAID, WHICH WERE NOT AFFORDABLE DUE TO ASSESSEES EARNING ONLY RS.29,200/- ON 3 ITA NO. 1536/AHD/2010 KEROSENE SALE OF RS.11,64,869/- I.E. @ 2.5%. THE LD . COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ASSESSING OFFICER VERIFIED THE GENUINENESS OF SUPPL IERS UNDER SECTION 133(6) OF THE ACT. THEREFORE, THERE IS NO JUSTIFICATION FOR MAKING DIS ALLOWANCE UNDER SECTION 40A(3). IN MY OPINION, THIS PLEA OF THE ASSESSEE CANNOT BE ACCEPTED BECAUS E THIS SITUATION IS NOT COVERED BY ANY OF THE EXCEPTIONS TO SECTION 40A(3) LISTED IN RULE 6DD OF THE INCOME TAX RULES, 1962. I, THEREFORE, INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS). RESULTANTLY, THIS GROUND OF APPEAL IS ALSO REJECTED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 24.08.20 10 SD/- (T.K. SHARMA) JUD ICIAL MEMBER DATED : 24 / 08 / 2010 COPY OF THE ORDER IS FORWARDED TO : (1) THE ASSESSEE (2) THE DEPARTMENT. (3) CIT(A.) CONCERNED, (4) CIT CONCERNED, (5) D.R ., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD LAHA/SR.P.S.