Shri Hitesh Madhukant Sevak, Ahmedabad V. The Income tax Officer,Ward-6(4), Ahmedabad

ITA 1567/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1049 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 10-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment
• Section: 143(3); 147; 69; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV, JM, & SHRI MANISH BORA D, AM. ITA NO.1567/AHD/2012 ASST. YEAR: 2008-09 HITESH MADHUKANT SEVAK, 48/2/, MOHAN NAGAR CO-OP. HSG. SOCIETY, NARODA, AHMEDABAD. VS. ITO, WARD 6-(4), AHMEDABAD. APPELLANT RESPONDENT PAN AJBPS 2404A AND ITA NO.1712/AHD/2012 ASST. YEAR: 2008-09 ITO, WARD6(4), AHMEDABAD. VS. HITESH MADHUKANT SEVAK, 48/2/, MOHAN NAGAR CO- OP. HSG. SOCIETY, NARODA, AHMEDABAD. APPELLANT RESPONDENT APPELLANT BY SHRI M. K. PATEL, AR RESPONDENT BY SHRI PRASOON KABRA, SR.DR DATE OF HEARING: 10/6/2016 DATE OF PRONOUNCEMENT: 21/07/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF LD. CT(A)-XI, AHMEDABAD DATED 2.5.2012 IN APPEAL NO.CI T(A)- ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 2 XI/395/WD-6(4)/11-12 PASSED AGAINST ORDER U/S 143(3 ) R.W.S. 148 OF THE IT ACT, 1961 (IN SHORT THE ACT) FOR ASST. YEAR 2008-09 ON 27.12.2011 BY ITO, WD-6(4), AHMEDABAD. GROUNDS OF APPEAL RAISED BY ASSESSEE & REVENUE ARE AS UNDER :- GROUNDS IN ITA NO.1567/AHD/2012 (ASSESSEES APPEAL) : 1. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN PARTLY CONFIRMING THE ADDITION ON ACCOUNT OF ESTIMATION OF GROSS PROFIT TO THE EXTENT OF RS.1,54,937/- OUT OF TOTAL ADDITION OF RS .7,09,229/- MADE BY THE AO WITHOUT PROPER CONSIDERATION AND APPRECIATIO N OF THE FACTS OF THE CASE. IN VIEW OF FACTS AND SUBMISSIONS FILED AS WELL AS LEGAL POSITION, THE ENTIRE ESTIMATED ADDITION ON ACCOUNT OF GROSS PROFIT REQUIRES TO BE DELETED. 2. THE LEARNED CIT(A) HAS FURTHER ERRED IN ESTIMATI NG THE ADDITION OF G.P. AT 20% OF ALLEGED UNVERIFIED PURCHASES OF RS.7 ,74,687/- AS AGAINST ESTIMATION OF G.P. @ 20% OF TOTAL TURNOVER AS MADE BY THE AO. IN VIEW OF FACTS OF THE CASE AND MORE PARTICULA RLY THE NATURE OF BUSINESS OF THE APPELLANT, THE ENTIRE ADDITION OUGH T TO HAVE BEEN DELETED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MO DIFY OR DELETE ANY OF THE ABOVE GROUNDS AS WELL AS TO SUBMIT ADDIT IONAL GROUNDS AT THE TIME OF HEARING OF THE APPEAL. GROUNDS IN ITA NO.1712/AHD/2012 (REVENUES APPEAL) :- (I) THE CIT(A) HAS ERRED IN TAW AND ON FACTS IN ACCEPTING THE EXPLANATION OF THE ASSESSEE THAT THE OPENING CAPITA L APPEARING IN THE BALANCE SHEET WAS BROUGHT FORWARD FROM THE CLOS ING BALANCE APPEARING IN THE BALANCE SHEET FOR THE IMMEDIATELY PRECEDING F.Y, PARTICULARLY WHEN THE ASSESSEE HAD NOT MAINTAI NED REGULAR BOOKS OF ACCOUNTS FOR THE PRECEDING YEAR AND HAD ME RELY SUBMITTED COPIES OF UNAUDITED P&L A/C AND BALANCE S HEET. (II) THE CIT(A) HAS ERRED IN LAW AND ON FACTS I N HOLDING THAT THE BOOK- RESULT OF THE ASSESSEE WERE ACCEPTABLE AND THE ADDI TION MADE ON ACCOUNT OF SUPPRESSED GROSS PROFIT WAS NOT TENABLE. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 3 (III) THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW CREDIT FOR TDS TO THE ASSESSEE IGNORING THE PROVISIONS OF RULE 37BA(4) OF THE I T RULES, AND ALSO IGNORING THE FACT THAT T HE ASSESSEE HAD NOT FILED A VALID RETURN OF INCOME. (IV) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. COMMISSIONER OF INCOME TAX (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. (V) IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (A) MAY BE SET-ASIDE AND THAT OF THE ASS ESSING OFFICER BE RESTORED. 2. BRIEFLY STATED FACTS OF THE CASE AS CULLED OUT F ROM THE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL RUNNING SOLE PROPRIETARY CONCERN IN THE NAME OF M/S GAYATRY CATERERS, ENGAGE D IN PROVIDING CATERING SERVICES. NOTICE U/S 148 OF THE ACT WAS IS SUED ON 21.10.2010 ON THE BASIS OF INFORMATION THAT TDS WAS DEDUCTED I N ON THE CONTRACT PAYMENT OF RS.1,66,54,360/- FOR ASST. YEAR 2008-09 BUT NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. ASSESSEE DID NOT RESPOND ON FEW OCCASIONS AGAINST NOTICE U/S 148 OF THE ACT BUT FIN ALLY FURNISHED THE RETURN OF INCOME ON 19/10/2011 DECLARING TOTAL INCO ME AT RS.10,21,170/- ON WHICH TAX OF RS.2,78,275/- WAS DE TERMINED AND TDS OF RS.3,96,191/- WAS CLAIMED. CASE WAS DISCUSSE D, NECESSARY DETAILS WERE FILED AND ASSESSMENT WAS COMPLETED AT AN ASSESSED INCOME OF RS.66,97,094/- AFTER MAKING FOLLOWING TWO ADDITIONS :- 1.ADDITION U/S 69 ON UNEXPLAINED INVESTMENT FOR NOT ACCEPTING THE OPENING BALANCE OF CAPITAL RS.49,66,695/- 2.REJECTION OF BOOKS OF ACCOUNT U/S 154(3) OF THE A CT AND ESTIMATION OF G.P. AND MAKING ADDITION RS.7,09,229/- ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 4 FURTHER ASSESSEES CLAIM OF CREDIT OF TDS OF RS.3,9 6,191/- WAS DENIED BY LD. ASSESSING OFFICER OBSERVING THAT THE SAME CANNOT BE ALLOWED AS PER RULE 41 OF THE IT RULES AS IT WAS NO T A CLAIM WITH VALID RETURN OF INCOME FILED U/S 139 OF THE ACT. 3. AGGRIEVED, ASSESSEE WENT IN APPEAL BEFORE LD. CI T(A) WHEREIN THE APPEAL WAS PARTLY ALLOWED AND NOW BOTH THE ASSE SSEE AND THE REVENUE ARE IN APPEAL BEFORE THE TRIBUNAL. 4. FIRST WE TAKE GROUND NOS. 1 & 2 OF ASSESSEES AP PEAL IN ITA NO.1567/AHD/2012 AND GROUND NO.(II) OF REVENUES A PPEAL IN ITA NO.1712/AHD/2012 WHICH ARE AS UNDER :- ASSESSEES GROUNDS 1. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW A ND ON FACTS IN PARTLY CONFIRMING THE ADDITION ON ACCOUNT OF ESTIMATION OF GROSS PROFIT TO THE EXTENT OF RS.1,54,937/- OUT OF TOTAL ADDITION OF RS .7,09,229/- MADE BY THE AO WITHOUT PROPER CONSIDERATION AND APPRECIATIO N OF THE FACTS OF THE CASE. IN VIEW OF FACTS AND SUBMISSIONS FILED AS WELL AS LEGAL POSITION, THE ENTIRE ESTIMATED ADDITION ON ACCOUNT OF GROSS PROFIT REQUIRES TO BE DELETED. 2. THE LEARNED CIT(A) HAS FURTHER ERRED IN ESTIMATI NG THE ADDITION OF G.P. AT 20% OF ALLEGED UNVERIFIED PURCHASES OF RS.7 ,74,687/- AS AGAINST ESTIMATION OF G.P. @ 20% OF TOTAL TURNOVER AS MADE BY THE AO. IN VIEW OF FACTS OF THE CASE AND MORE PARTICULA RLY THE NATURE OF BUSINESS OF THE APPELLANT, THE ENTIRE ADDITION OUGH T TO HAVE BEEN DELETED. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MO DIFY OR DELETE ANY OF THE ABOVE GROUNDS AS WELL AS TO SUBMIT ADDIT IONAL GROUNDS AT THE TIME OF HEARING OF THE APPEAL. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 5 REVENUES GROUND (II) THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HO LDING THAT THE BOOK- RESULT OF THE ASSESSEE WERE ACCEPTABLE AND THE ADDI TION MADE ON ACCOUNT OF SUPPRESSED GROSS PROFIT WAS NOT TENABLE. 5. AS TWO GROUNDS RAISED BY ASSESSEE ARE INTER-CONN ECTED AND GROUND NO.(II) OF REVENUES APPEAL RELATE TO THE SA ME ISSUE, THEREFORE, THEY ARE DEALT TOGETHER. LD. AR SUBMITTE D THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS OBSERVED BY LD. ASSESSING OFFICER THAT NO PROPER SUPPORTING WAS AVAILABLE WIT H THE ASSESSEE IN RELATION TO EXPENDITURE OF RS.7,74,687/- RELATING T O PURCHASE OF MILK, CURD, VEGETABLES, FRUITS, ETC. PURCHASED IN CASH AN D SIMILARLY, EXPENDITURE ON CONSUMPTION OF COOKING GAS WAS NOT V ERIFIABLE. LD. ASSESSING OFFICER ALSO OBSERVED THAT ASSESSEES MAI N CLIENT WAS CADILA LABORATORIES LTD. BUT THE ASSESSEE FAILED TO FURNISH A COPY OF AGREEMENT ENTERED INTO BY HIM WITH THE SAID CLIENT. DUE TO THESE REASONS BOOK RESULTS OF THE ASSESSEE WERE REJECTED U/S 145(3) OF THE ACT AND GROSS PROFIT WAS ESTIMATED BY APPLYING 20% AT THE PLACE OF 15.82% DECLARED BY ASSESSEE ON THE GROSS TURNOVER O F RS.1,69,62,197/-. ACCORDINGLY ADDITION OF RS.7,09,2 29/- WAS MADE ON ACCOUNT OF SUPPRESSION OF G.P. 6. WHEN THE MATTER TRAVELLED BEFORE THE LD. CIT(A) THE IMPUGNED ADDITION ON ACCOUNT OF SUPPRESSION OF GP WAS DELETE D ON THE BASIS OF OBSERVATION THAT THERE WAS NO SUBSTANTIAL DECREASE IN GP VIS--VIS AVERAGE OF LAST THREE YEARS GP CALCULATED AT 15.82% . FURTHER LD.CIT(A) ALSO OBSERVED THAT ESTIMATION OF 20% GP B Y ASSESSING OFFICER WAS WITHOUT ANY COMPARABLE CASE AND PRESCRI BED PROCEDURE. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 6 HOWEVER, IN RELATION TO THE EXPENDITURE OF RS.7,74, 687/- INCURRED BY ASSESSEE ON VARIOUS CONSUMABLE ITEMS NAMELY MILK, C URD, VEGETABLES, FRUITS, COOKING GAS ETC. WHICH WERE SUP PORTED BY MERELY SELF-MADE VOUCHERS, 20% DISALLOWANCE OF RS.7,74,687 /- WAS SUSTAINED AND ACCORDINGLY OUT OF ADDITION OF RS.7,0 9,229/- A RELIEF OF RS.5,54,292/- WAS GIVEN BY LD. CIT(A) AND BALANCE A MOUNT OF RS.1,54,937/- WAS CONFIRMED. LD. AR FURTHER SUBMITT ED THAT ASSESSEES BOOKS OF ACCOUNTS ARE AUDITED AND THERE IS NO OBSERVATION MADE BY THE AUDITORS AGAINST THE ASSESS EE IN REGARD TO THE EXPENDITURE OF RS.7,74,687/- AND FURTHER IN CAT ERING BUSINESS SUCH TYPE OF EXPENSES HAVE TO BE INCURRED IN CASH A ND PROPER BILLS/SUPPORTING ARE NOT POSSIBLE TO BE GATHERED FR OM SUPPLIERS OF MILK, CURD, VEGETABLES, BUTTER ETC. AS THERE IS NO FIXED SUPPLYING FOR THE SAME. THEREFORE, LD. CIT(A) ERRED IN SUSTAINING THE DISALLOWANCE OF RS.1,54,937/-. 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDER OF ASSESSING OFFICER. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT ASSESSEE HAS RAISED GROUND NOS. 1 & 2 BUT THE SOLE GRIEVANCE IS ADDITION OF RS.1,54,937/- SUS TAINED BY LD. CIT(A) BY DISALLOWING 20% UNVERIFIABLE PURCHASE OF RS.7,74 ,687/- WHEREAS REVENUE IS IN APPEAL AGAINST THE ORDER OF LD. CIT(A ) HOLDING THAT THE BOOK RESULTS OF THE ASSESSEE WERE ACCEPTABLE AND AD DITION ON ACCOUNT OF GROSS PROFIT ADDITION MADE BY THE ASSESS ING OFFICER IS NOT TENABLE. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 7 9. WE OBSERVE THAT RETURN OF INCOME WAS FILED BY AS SESSEE ON 19/10/2011 IN COMPLIANCE TO NOTICE U/S 148 OF THE A CT DATED 21.10.2010 BECAUSE EVEN WHEN TDS WAS DEDUCTED ON CO NTRACT PAYMENT OF RS.1,66,54,360/-, ASSESSEE DID NOT FILE RETURN OF INCOME IN THE REGULAR COURSE U/S 139 OF THE ACT. ALONG WITH R ETURN OF INCOME AUDIT REPORT U/S 44AB OF THE ACT WAS ALSO ATTACHED AND TDS CERTIFICATE FROM GUJARAT STATE PETROLEUM CORPORATIO N, CADILA HEALTH CARE LTD. AND ERHARDT + LEIMER (INDIA) PVT. LTD., C OPY OF AGREEMENT WITH CADILA HEALTH CARE LTD. AND COPY OF BANK STATE MENT, WERE FILED BEFORE LD. ASSESSING OFFICER. WE FURTHER OBSERVE TH AT NO MAJOR DEFECT WAS POINTED OUT BY LD. ASSESSING OFFICER EXCEPT FOR THE UNVERIFIABLE PURCHASES OF RS.7,74,687/- FOR PURCHASE OF MATERIAL LIKE MILK, CURD, VEGETABLES, COOKING GAS ETC. APART FROM THIS OBSERV ATION ALL OTHER BOOK RESULTS EXCEPT SOME PART OF OPENING CAPITAL AT RS.49,66,695/- AS FURNISHED IN THE AUDITED FINANCIAL STATEMENT WERE A CCEPTED BY ASSESSING OFFICER. ISSUE REGARDING NON-ACCEPTANCE O F THE OPENING CAPITAL OF RS.49,66,695/- WILL BE DEALT WITH OTHER GROUND OF THE APPEAL RAISED BY REVENUE. 9.1 WE FURTHER OBSERVE THAT AVERAGE GROSS PROFIT (G P) RATE OF ASSESSEE FOR LAST THREE FINANCIAL YEARS IS 15.28% ( 12.95% + 16.69% + 16.20% 3), GP DECLARED BY THE ASSESSEE FOR THE YE AR UNDER APPEAL IS 15.82% WHICH IS BETTER IN COMPARISON TO AVERAGE GP RATE. FURTHER AS REGARDS UNVERIFIABLE PURCHASES OF RS.7,74,687/- WE FIND FORCE IN THE SUBMISSION OF LD. AR THAT THESE PURCHASES RELAT E TO BUYING OF MILK, CURD, VEGETABLES FRUITS, COOKING GAS AND OTHE R DAY TO DAY ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 8 EXPENDITURE NEEDED IN THE COURSE OF RUNNING CATERIN G BUSINESS AND SUCH PURCHASES ARE NORMALLY MADE FROM DIFFERENT SUP PLIERS ON THE BASIS OF AVAILABILITY AND DEMAND OF GOODS AND SUCH SUPPLIERS ARE NORMALLY HAWKERS OR UNSTABLE SHOP KEEPERS WHICH KEE P MOVING FROM PLACE TO PLACE AND IT IS NOT PRACTICABLE TO ARRANGE FOR PROPER SUPPORTING OR BILLS FOR SUCH PURCHASES. WE ALSO OBS ERVE THAT ONLY REASON ON THE BASIS OF WHICH LD. ASSESSING OFFICER WENT AHEAD TO REJECT BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT IS U NVERIFIABLE PURCHASES AND APART FROM THIS NO OTHER OBSERVATION OR DEFECTS IN THE BOOKS OF ACCOUNTS WAS POINTED BY LD. ASSESSING OFFI CER. THEREFORE, IN THE GIVEN CIRCUMSTANCES, WHERE THE ASSESSEE HAS SHO WN BETTER GP RATE AND NO MAJOR DEFECT HAS BEEN POINTED IN THE BO OKS OF ACCOUNT, LD. ASSESSING OFFICER ERRED IN REJECTING BOOKS OF A CCOUNT AND THEREFORE, NO ADDITION IS SUSTAINABLE BY APPLYING E STIMATED GP RATE @ 20%. WE FIND NO REASON TO INTERFERE WITH THE FINDIN G WITH REGARD TO THE ISSUE OF DELETING THE ADDITION ON ACCOUNT OF GP RAT E. HOWEVER, WITH REGARD TO THE ADDITION OF RS.1,54,937/- ON ACCOUNT OF 20% DISALLOWANCE ON UNVERIFIABLE PURCHASES OF RS.7,74,6 87/- WE FIND THAT ALL THESE PURCHASES ARE RELATING TO PERISHABLE ITEM S NAMELY, MILK, FRUITS, VEGETABLES, CURD ETC. AND COOKING GAS WHICH ARE TO BE SOUGHT AFTER BY THE ASSESSEE FROM DIFFERENT SUPPLIERS AND THERE IS PRACTICAL DIFFICULTY OF GATHERING SUPPORTING DOCUMENTS AND, T HEREFORE, IN THE GIVEN CIRCUMSTANCES WHEN THE ASSESSEE HAS SHOWN BET TER GP RATE AND FINANCIAL STATEMENTS ARE AUDITED U/S 44AB OF TH E ACT AND THE DISALLOWANCE MADE BY LOWER AUTHORITIES IS FAIRLY ON AN ESTIMATE BASIS, WE FIND NO REASON FOR SUCH DISALLOWANCE AND, THEREF ORE, WE DELETE THE ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 9 SAME. ACCORDINGLY, GROUND NO.1 & 2 OF ASSESSEES AP PEAL ARE ALLOWED AND GROUND NO.2 OF REVENUES APPEAL IS DISMISSED. 10. NOW WE TAKE UP REMAINING GROUNDS OF REVENUES A PPEAL IN ITA NO.1712/AHD/2012. 11. GROUND NO.(I) OF REVENUE THE CIT(A) HAS ERRED IN TAW AND ON FACTS IN ACCEPTI NG THE EXPLANATION OF THE ASSESSEE THAT THE OPENING CAPITA L APPEARING IN THE BALANCE SHEET WAS BROUGHT FORWARD FROM THE CLOS ING BALANCE APPEARING IN THE BALANCE SHEET FOR THE IMMEDIATELY PRECEDING F.Y, PARTICULARLY WHEN THE ASSESSEE HAD NOT MAINTAINED R EGULAR BOOKS OF ACCOUNTS FOR THE PRECEDING YEAR AND HAD MERELY SUBM ITTED COPIES OF UNAUDITED P&L A/C AND BALANCE SHEET. 12. LD. DR SUPPORTED THE ORDER OF LD. ASSESSING OFF ICER. 13. ON THE OTHER HAND, LD. AR SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AUDITED FINANCIAL STATEMENT S WERE SUBMITTED BEFORE LD. ASSESSING OFFICER AND WHILE EX AMINING THE SAME, LD. ASSESSING OFFICER OBSERVED THAT BROUGHT FORWARD OPENING BALANCE OF CAPITAL ACCOUNT OF PROPRIETARY CONCERN WAS SHOWN AT RS.60,85,758. LD. ASSESSING OFFICER ALSO OBSERVED THAT ASSESSEE H AS NOT FILED RETURN OF INCOME AS WELL AS FINANCIAL STATEMENT FOR ASST. YEAR 2006-07 AND 2007-08 AND, THEREFORE, ACCEPTED THE OPENING W. D.V. OF ASSETS MOTOR CAR AT RS.3,63,313/- AND OPENING BANK BALANCE OF RS.7,55,750/- AND TREATED THE REMAINING AMOUNT OF R S.49,66,695/- (RS.60,85,758 RS.36,313 RS.7,55,750) AS UNEXPLA INED INVESTMENT U/S 69 OF THE ACT AND ADDED IT TO THE IN COME OF ASSESSEE. LD. AR FURTHER SUBMITTED THAT ASSESSEE IS REGULARLY GETTING ITS ACCOUNT ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 10 AUDITED AND THE OPENING BALANCE BROUGHT FORWARD WAS FROM PREVIOUS YEAR AUDITED BALANCE SHEET AND ALSO ADDITION U/S 69 OF THE ACT IS ATTRACTED FOR UNEXPLAINED INVESTMENT NOT RECORDED I N BOOKS OF A/C. DURING YEAR WHICH WAS NOT THE CASE BEFORE LD. ASSES SING OFFICER BECAUSE ADDITION WAS MADE ON ACCOUNT OF OPENING CAP ITAL WHICH WAS DULY RECORDED IN THE BOOKS OF ACCOUNT AND, THEREFOR E, ADDITION MADE WAS BAD IN LAW AND LD. CIT(A) HAS RIGHTLY DELETED T HE SAME. 14. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THROUGH THIS GROUND REVENUE HAS CHALLENG ED THE ACTION OF LD. CIT(A) DELETING THE ADDITION MADE U/S 69 OF THE ACT FOR UNEXPLAINED INVESTMENT AT RS.49,66,695/-. WE FIND T HAT LD. CIT(A) HAS DELETED THE IMPUGNED ADDITION OF RS.49,66,695/- BY OBSERVING AS UNDER :- 3.2 I HAVE CAREFULLY CONSIDERED RIVAL SUBMISSIONS. 1 HAVE ALSO PERUSED VARIOUS EVIDENCES FURNISHED BY THE APPELLANT DURING APPELLA TE PROCEEDINGS AND THE CASE LAWS RELIED UPON BY THE APPELLANT. IT IS SEEN THAT THE A.O. HAD MADE .AN ADDITION OF RS.49,66,695/- AGAINST OPENING CAPITAL BALANCE. IT IS FURTHER NOTICED THAT IN THE A.Y. 2008-09 APPELLANT HAS SHOWN OPENING CAPITAL OF RS.60,85,758/-. THE A.O. HAD GIVEN CREDIT OF OPENING BANK BALANCE OF RS.7,55 ,750/- AND W.D.V. OF MOTOR CAR OF RS.3,63,313/- AGAINST THIS OPENING CAPITAL A ND THE RESULTANT FIGURE OF RS.49,66,695/- HAS BEEN ADDED BY THE A.O. U/S.69 OF I.T. ACT. 3.3 TAKING ENTIRETY OF FACTS IN VIEW, I AM INCLINED TO AGREE WITH THE CONTENTIONS OF THE ID.A.R. FOR THE FOLLOWING REASONS. THE A.O. HAD MADE IMPUGNED ADDITION U/S.69 OF IT. ACT, IT WILL BE PERTINENT TO DISCUSS PROVISION OF THIS SECTION FIRST. THE VALUE OF UNEXPLAINED INVESTMENT MADE BY THE ASSESSE E IN F.Y. IMMEDIATELY PRECEDING A.Y. CAN BE CHARGED TO TAX U/S.69 OF I.T. ACT ONLY IF FOLLOWING CONDITIONS ARE FULFILLED. (A) ASSESSEE MIGHT HAVE MADE INVESTMENTS IN THE F.Y . IMMEDIATELY PRECEDING A.Y. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 11 (B) THE INVESTMENTS MADE ARE NOT RECORDED IN THE BOOKS, IF ANY, MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME . (C) ASSESSEE PLACE NO EXPLANATION ABOUT THE NATU RE OF SOURCE OF INVESTMENTS OR EXPLANATION OFFERED BY HIM IS NOT, I N THE OPINION OF THE A.O. SATISFACTORY. THE FULFILLMENT OR SATISFACTION OF THESE CONDITIONS IN THE CASE OF APPELLANT IS DISCUSSED IN THE FOLLOWING PARAS. (I) IT IS SEEN THAT A.O. HAD MADE ADDITION AG AINST OPENING CAPITAL OF THE APPELLANT. THIS MAKES IT VERY CLEAR THAT THE A.O. H AS NOT DETECTED ANY INVESTMENT MADE BY THE APPELLANT DURING THE YEAR UN DER CONSIDERATION. ACCORDINGLY, THE FIRST ELIGIBILITY CRITERION OF SEC TION 69 AS MENTIONED ABOVE IS NOT FULFILLED. (II) IT IS ALSO A MATTER OF FACT THAT THE APPEL LANT IS MAINTAINING THE BOOKS OF ACCOUNTS AND OPENING CAPITAL AMOUNT OF RS.60,85,758 /- HAS BEEN RECORDED BY THE APPELLANT IN HIS BOOKS OF ACCOUNTS. IN FACT THE FIGURE OF OPENING CAPITAL ACCOUNT OF RS.60,85,785/- HAS BEEN TAKEN BY THE A.O. FROM THE BOOKS OF ACCOUNTS AND BALANCE SHEET OF THE APPELLANT. IT IS CLEARLY MENTIONED BY THE A.O. IN PARA 5 OF THE ASSESSMENT O RDER THAT BOOKS OF ACCOUNTS AND BILLS AND VOUCHERS WERE FURNISHED AND THE SAME WERE VERIFIED ON TEST CHECK BASIS. THESE BOOKS OF ACCOUN TS WERE DULY AUDITED AND THE APPELLANT HAS DRAWN A BALANCE SHEET AND PRO FIT AND LOSS ACCOUNT BASED OFPSTHESE BOOKS OF ACCOUNTS. THE BALANCE SHEE T AND PROFIT AND LOSS ACCOUNT WAS FILED BY THE APPELLANT ALONGWITH I NCOME TAX RETURN. THE IMPUGNED FIGURE OF RS.60,85,7587- WHICH REPRESENTS OPENING CAPITAL BALANCE IS DULY RECORDED IN THE BOOKS OF ACCOUNTS A S WELL AS BALANCE SHEET OF THE APPELLANT. IN VIEW OF THESE FACTS, IT CAN EASILY BE SAID THAT OPENING CAPITAL BALANCE IS DULY RECORDED IN THE BOO KS OF ACCOUNTS' AND ACCORDINGLY AS PER SECOND ELIGIBILITY CONDITION OF SECTION 69, ADDITION AGAINST OPENING CAPITAL BALANCE CANNOT BE MADE U/S. 69. SINCE BASIC ELIGIBLE CRITERIONS AS LAID DOWN U/S.69 ARE NOT FULFILLED IN THIS CASE, ACCORDINGLY, IN MY CONSIDERED VIEW THE ADDITION OF RS.49,66,695/- MADE BY THE A.O. U/S.69 IS NOT TENABLE. 3.4 IN THE ASSESSMENT ORDER THE A.O. HAS TAKEN COGN IZANCE OF RETURN FILED BY THE APPELLANT FOR A.Y. 2005-06. THE APPELLANT IS HAVING AUDITED BALANCE SHEET FOR THIS YEAR. THE A.O. WAS OF THE OPINION THAT IN THE INTER VENING PERIOD I.E. A.Y. 2006-07 AND 2007-08 THE APPELLANT HAS NOT FURNISHED ITS RET URN OF INCOME AND ACCORDINGLY OPENING BALANCE SHOWN BY THE APPELLANT IN BALANCE S HEET IS NOT VERIFIABLE. IN VIEW OF THESE FACTS, THE A.O. MADE THE IMPUGNED ADD ITION. HOWEVER, IT IS SEEN THAT FOR THE A.Y. 2006-07 AND 2007-08, THE A.O. HAD ISSUED NOTICE U/S.148 AND ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 12 THE APPELLANT HAD FURNISHED INCOME-TAX RETURNS FOR THESE YEARS ALONG-WITH AUDITED BALANCE SHEETS. PERUSAL OF BALANCE SHEET FOR THE A. Y. 2007-08 REVEALS THAT CLOSING BALANCE IN CAPITAL ACCOUNT OF SHRI HITESH M ADHUKANT SEVAK IS _RS.60J5.758/-, WHICH IS OPENING BALANCE IN CAPITAL ACCOUNT FOR THE A.Y. 2008-09. IF THE A.O. DOUBTS THE ACCRETION IN THE CAPITAL ACC OUNT OF THE APPELLANT FOR A.Y. 2006-07 AND 2007-08, IT WILL BE PROPER TO INVESTIGA TE THIS ISSUE IN THE ASSESSMENT PROCEEDINGS OF THESE YEARS, WHICH ARE OPEN BEFORE T HE A.O. ARE OPENED UP FOR SCRUTINY. IN MY CONSIDERED VIEW, DISCREPANCY, IF AN Y, FOUND IN THE CAPITAL ACCOUNT ACCRETION IN A.YRS. 2006-07 AND 2007-08, IT WILL BE APPROPRIATE TO MAKE THESE ADDITIONS IN THAT YEAR AND NOT IN THE CURRENT A.Y. I.E. A.Y. 2008-09. 3.5 IT IS FURTHER SEEN THAT A.O. HAD GIVEN CREDIT O F OPENING BANK BALANCE OF RS.7,55,750/- AND W.D.V. OF MOTOR CAR OF RS.3,63,31 3/- AGAINST OPENING CAPITAL BALANCE OF THE APPELLANT. I AM NOT IN AGREEMENT WIT H THIS WORKING ALSO. IT IS SEEN THAT AUDITED BALANCE SHEET FOR THE A.Y. 2005-06 WAS AVAILABLE BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS. IN THIS BALANCE SHEET, APPELLANT HAS DECLARED BALANCE IN CAPITAL ACCOUNT OF RS.17,62,694 /- AND THE FIXED ASSETS OF RS.9,01,173/-. THERE IS NOTHING ON RECORD TO DISBEL IEVE THIS BALANCE SHEET. IN VIEW OF THESE FACTS, I AM OF THE CONSIDERED, VIEW T HAT A.Q. SHOULD HAVE GIVEN BENEFIT OF CAPITAL ACCOUNT OF RS.17 I 62,694/-AND W.D.V. OF FIXED ASSETS OF RS.9,01,173/-. 3.6 THE A.O. HAD ALSO MADE REFERENCE TO DEBTORS OF RS.44,05,856/-. THIS FIGURE IS ALSO DISCLOSED IN THE BALANCE SHEET OF THE CURRENT YEAR. THIS IS THE OPENING BALANCE UNDER THE HEAD SUNDRY DEBTORS FOR THE CURRE NT A.Y. THIS CORRESPONDS TO CLOSING BALANCE OF SUNDRY DEBTORS OF RS.44,05,856/- AS ON 31-03-2007. THIS FIGURE IS ALSO DECLARED IN IN THE BALANCE SHEET FOR A.Y. 2007-08. SINCE SUNDRY DEBTORS ALSO CORRESPONDS TO EARLIER YEAR, ACCORDING LY, IN MY CONSIDERED VIEW, NO ADVERSE INFERENCE CAN BE DRAWN IN THE CURRENT A.Y. 3.7 1 FURTHER PLACE RELIANCE ON THE CASE OF MOHANLA L PUKHRAJ V/S. DCIT (2005) 1(11) 1 TCL 160 (AHD.TRI.) WHEREIN IT IS HELD THAT INCOME DURING VARIOUS YEARS CANNOT BE TAXED IN ONE YEAR BRUSHING ASIDE OF THE E VIDENCES TO BE VERIFIED BY THE ASSESSEE. IN THE CASE OF ACIT V/S. SMT.GANGADEVI SA NGANARIA L/H OF LATE MATADIN SANGANARIA (2005) 96 TTJ 351 (CAL.), IT WAS HELD THAT THERE WAS NO REASON TO DISBELIEF ACCUMULATION OF CAPITAL IN THE HANDS OF THE ASSESSEE ESPECIALLY IN VIEW OF THE FACT THAT APPELLANT HAS E ARNED INCOME IN THE EARLIER YEARS. 3.8 IT IS ALSO A MATTER OF FACT THAT APPELLANT HAS SHOWN CAPITAL BALANCE AS ON 31- 03-2005 AT RS.17,62,694/-. THE APPELLANT HAS FURTHE R EARNED PROFITS OF RS.9.93 LACS AND RS.14.51 LACS IN THE A.Y. 2006-07 AND 200 7-08 RESPECTIVELY. THESE FACTS REVEALS THAT APPELLANT HAS ACCUMULATED PROFIT S YEAR AFTER YEAR AND THAT WAS SUFFICIENT REASON OF HAVING AN OPENING CAPITAL BALA NCE OF RS.60,85,758/- IN THE A.Y. 2008-09. THE A.O. HAS NOT CONSIDERED THESE MAT ERIALS FACTS BEFORE MAKING THE ADDITION. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 13 3.9 IN VIEW OF ABOVE FACTS, I AM OF THE FIRM VIEW T HAT ADDITION OF RS.49,66,695/- IS NOT TENABLE AND ACCORDINGLY THE SAME IS DELETED. TH IS GROUND OF APPEAL IS ALLOWED. 15. WE OBSERVE THAT LD. ASSESSING OFFICER WHILE EXA MINING THE AUDITED FINANCIAL STATEMENT ACCEPTED THE OPENING CA PITAL BALANCE ONLY TO THE EXTENT OF W.D.V. OF MOTOR CAR AT RS.3,63,313 /- AND OPENING BANK BALANCE OF RS.7,55,750/- AND TREATED THE REMAINING AMOUNT OF OPENING CAPITAL OF RS.49,66,695/- AS UNEXPLAINED IN VESTMENT. WE FURTHER OBSERVE THAT PROVISIONS OF SECTION 69 OF TH E ACT READ AS UNDER:- 69. WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDI NG THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT REC ORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE O F INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE O F THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION O F THE ASSESSING OFFICER, SATISFACTORY, THE VALUE OF THE INVESTMENTS MAY BE D EEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FINANCIAL YEAR. - 16. BY APPLYING THE FACTS OF THE CASE TO THE PROVIS IONS OF SECTION 69 OF THE ACT, WE FIND THAT PROVISIONS OF SECTION 69 O F THE ACT ARE INVOKED WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING T HE ASST. YEAR IF THE ASSESSEE MAKES ANY INVESTMENT WHICH ARE NOT RECORDE D IN THE BOOKS OF ACCOUNT THEN SUCH VALUE OF INVESTMENT MAY BE DEE MED TO BE THE INCOME OF THE ASSESSEE WHICH IS NOT THE CASE OF ASS ESSEE BECAUSE LD. ASSESSING OFFICER HAS REFERRED TO THE OPENING C APITAL BALANCE WHICH TAKES ITS SOURCE FROM PREVIOUS FINANCIAL YEAR AND LD. ASSESSING OFFICER HAS TAKEN THE BASIS OF OPENING CAPITAL OF R S.60,85,758/- FROM ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 14 THE AUDITED FINANCIAL STATEMENT OF ASSESSEE SHOWN A T SCHEDULE-A OF THE AUDITED BALANCE SHEET AND HAS PARTLY CONSIDERED THE OPENING CAPITAL EXPLAINED TO THE EXTENT OF OPENING W. D. V. OF MOTOR CAR OF RS.3,63,313/- AND OPENING BANK BALANCE OF RS.7,55,7 50/-. THERE IS NO MENTION OF ANY OTHER INVESTMENT WHICH IS NOT REC ORDED IN THE BOOKS OF ACCOUNT. 17. WE FURTHER OBSERVE THAT ASSESSMENT U/S 143(3) R .W.S. 148 OF THE ACT IN THE CASE OF ASSESSEE FOR ASST. YEAR 2006-07 & 2007-08 WERE COMPLETED ON 28.2.2013 WHICH WAS AFTER THE ASSESSME NT UNDER SECTION 143(3) R. W. S. 148 OF THE ACT FOR ASST. Y EAR 2008-09 COMPLETED ON 27.12.2011. FROM GOING THROUGH THE ASS ESSMENT ORDER FOR ASST. YEAR 2007-08 WE FIND THAT LD. ASSESSING O FFICER HAS ACCEPTED THE AUDITED FINANCIAL STATEMENT AS WELL AS THE OPEN ING AND CLOSING BALANCE OF CAPITAL ACCOUNT AND THE ONLY ADDITION MA DE FOR ASST. YEAR 2007-08 RELATES TO UNVERIFIABLE PURCHASES. HAD THER E BEEN ANY UNEXPLAINED INVESTMENT IN THE PREVIOUS YEAR I.E. AS ST. YEAR 2007-08 THEN LD. ASSESSING OFFICER MIGHT HAVE EXTRACTED SUC H INFORMATION AND HAD MADE ADDITION THEREOF. 18. WE ARE, THEREFORE, OF THE VIEW THAT AS THE ASSE SSEES FINANCIAL STATEMENTS HAVE BEEN ACCEPTED BY THE REVENUE FOR AS ST. YEAR 2007- 08 AND ADDITION MADE DURING THE YEAR UNDER APPEAL E MANATES OUT OF THE OPENING BALANCE OF THE CAPITAL ACCOUNT ONLY AN D THERE IS NO EVIDENCE OF ANY UNRECORDED INVESTMENT IN THE CASE O F ASSESSEE AND, THEREFORE, NO ADDITION WAS CALLED FOR U/S 69 OF THE ACT OF RS.49,66,695/-. LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. NO ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 15 INTERFERENCE IS CALLED FOR IN THE ORDER OF LD. CIT( A). THIS GROUND OF REVENUE IS DISMISSED. 19. NOW WE TAKE UP GROUND NO.(III) OF REVENUES AP PEAL WHICH READS AS UNDER :- (III) THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO ALLOW CREDIT FOR TDS TO THE ASSESSEE IGNORING THE PROVISIONS OF RULE 37BA(4) OF THE I T RULES, AND ALSO IGNORING THE FACT THAT T HE ASSESSEE HAD NOT FILED A VALID RETURN OF INCOME. 20. LD. DR SUPPORTED THE ORDER OF ASSESSING OFFICE R. 21. ON THE OTHER HAND, LD. AR SUBMITTED THAT TDS OF RS. 3,96,191/- WAS DEDUCTED ON THE CONTRACT RECEIPTS RECEIVED BY T HE ASSESSEE DURING THE YEAR AND THE SAME WERE CLAIMED AGAINST T AX LIABILITIES FOR THE YEAR BUT WAS NOT ALLOWED BY LD. ASSESSING OFFIC ER BY FOLLOWING THE PROVISIONS OF RULE 41 OF IT RULES WITH THE OBSERVAT ION THAT AS THE ASSESSEE HAS NOT FILED VALID RETURN U/S 139 OF THE ACT. LD. AR FURTHER SUBMITTED THAT WHEN THE GROSS RECEIPTS OF THE ASSES SEE HAS BEEN ACCEPTED, ALL DETAILS REGARDING CONTRACT AGREEMENTS FOR CATERING SERVICES OF VARIOUS COMPANIES WERE PLACED ON RECORD , THEN ASSESSEE SHOULD HAVE BEEN ALLOWED TDS CREDIT OF RS.3,96,191/ -. 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. REVENUE HAS CHALLENGED THE ACTION OF LD. CIT(A) FOR ALLOWING CREDIT OF TDS OF RS.3,96,191/-. WE FIND TH AT LD. CIT(A) HAS ALLOWED THE GROUND OF ASSESSEES APPEAL AND HAS DIR ECTED THE ASSESSING OFFICER TO GIVE CREDIT OF TDS OF RS.3,96, 191 VIDE PARA 5.3 OF HIS APPELLATE ORDER. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 16 23. BEFORE GOING FURTHER LET US FIRST GO THROUGH TH E PROVISIONS OF RULE 37BA AND RULE 41 OF IT RULES WHICH ARE AS FOLL OWS :- RULE -37BA. (1) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII, SHALL BE GIVEN TO THE PERSON TO WHOM PAYMENT HAS BEEN MADE OR CREDIT HAS BEEN GIVEN (HEREINAFTER REFERRED TO AS DEDUCTEE) ON THE BASIS OF INFORMATION RELATING TO D EDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME-TAX AUTHORITY OR THE PERSON AUTHORISED BY SUCH AUTHORITY. (2) [( I ) WHERE UNDER ANY PROVISIONS OF THE ACT, THE WHOLE OR ANY PART OF THE INCOME ON WHICH TAX HAS BEEN DEDUCTED AT SOURCE IS ASSESSABLE IN THE HANDS OF A PERSON OTHER THAN THE DEDUCTEE, CREDIT FOR THE WHOLE OR ANY PART OF T HE TAX DEDUCTED AT SOURCE, AS THE CASE MAY BE, SHALL BE GIVEN TO THE OTHER PERSON AND NOT TO THE DEDUCTEE : PROVIDED THAT THE DEDUCTEE FILES A DECLARATION WITH THE DED UCTOR AND THE DEDUCTOR REPORTS THE TAX DEDUCTION IN THE NAME OF THE OTHER PERSON I N THE INFORMATION RELATING TO DEDUCTION OF TAX REFERRED TO IN SUB-RULE (1).] ( II ) THE DECLARATION FILED BY THE DEDUCTEE UNDER CLAUS E ( I ) SHALL CONTAIN THE NAME, ADDRESS, PERMANENT ACCOUNT NUMBER OF THE PERSON TO WHOM CREDIT IS TO BE GIVEN, PAYMENT OR CREDIT IN RELATION TO WHICH CREDIT IS TO BE GIVEN AND REASONS FOR GIVING CREDIT TO SUCH PERSON. ( III ) THE DEDUCTOR SHALL ISSUE THE CERTIFICATE FOR DEDU CTION OF TAX AT SOURCE IN THE NAME OF THE PERSON IN WHOSE NAME CREDIT IS SHOWN IN THE INF ORMATION RELATING TO DEDUCTION OF TAX REFERRED TO IN SUB-RULE (1) AND SHALL KEEP THE DECL ARATION IN HIS SAFE CUSTODY. (3) ( I ) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT, SHALL BE GIVEN FOR THE ASSESSMENT YEAR FOR WHICH SUCH INCOME IS ASSESSABLE. ( II ) WHERE TAX HAS BEEN DEDUCTED AT SOURCE AND PAID TO THE CENTRAL GOVERNMENT AND THE INCOME IS ASSESSABLE OVER A NUMBER OF YEARS, CREDIT FOR TAX DEDUCTED AT SOURCE SHALL BE ALLOWED ACROSS THOSE YEARS IN THE SAME PROPORTION I N WHICH THE INCOME IS ASSESSABLE TO TAX. (4) CREDIT FOR TAX DEDUCTED AT SOURCE AND PAID TO T HE ACCOUNT OF THE CENTRAL GOVERNMENT SHALL BE GRANTED ON THE BASIS OF ( I ) THE INFORMATION RELATING TO DEDUCTION OF TAX FURNIS HED BY THE DEDUCTOR TO THE INCOME-TAX AUTHORITY OR THE PERSON AUTHORISED BY SU CH AUTHORITY; AND ( II ) THE INFORMATION IN THE RETURN OF INCOME IN RESPECT OF THE CLAIM FOR THE CREDIT, SUBJECT TO VERIFICATION IN ACCORDANCE WITH THE RISK MANAGEMENT STRATEGY FORMULATED BY THE BOARD FROM TIME TO TIME.] RULE -41. (1) A CLAIM FOR REFUND UNDER CHAPTER XIX SHALL BE MADE IN FORM NO. 30. (2) THE CLAIM UNDER SUB-RULE (1) SHALL BE ACCOMPANI ED BY A RETURN IN THE FORM PRESCRIBED UNDER SECTION 139 UNLESS THE CLAIMANT HAS ALREADY M ADE SUCH A RETURN TO THE 61 [ASSESSING OFFICER]. ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 17 (3) WHERE ANY PART OF THE TOTAL INCOME OF A PERSON MAKING A CLAIM FOR REFUND OF TAX CONSISTS OF DIVIDENDS OR ANY OTHER INCOME FROM WHIC H TAX HAS BEEN DEDUCTED UNDER THE PROVISIONS OF SECTIONS 192 TO 194 [, SECTION 194A AND SECTION 195], THE CLAIM SHALL BE ACCOMPANIED BY THE CERTIFICATES PRESCRIBED UNDER SE CTION 203. (4) THE CLAIM UNDER SUB-RULE (1) MAY BE PRESENTED B Y THE CLAIMANT IN PERSON OR THROUGH A DULY AUTHORISED AGENT OR MAY BE SENT BY POST. 24. ALSO THE PROVISIONS OF SECTION 148 OF THE ACT W ILL BE RELEVANT TO BE DISCUSSED HERE WHICH ARE [ISSUE OF NOTICE WHERE INCOME HAS ESCAPED ASSESSMEN T. 148. [(1)] BEFORE MAKING THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 , THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, [* * *] AS MAY BE SPECIFIED IN THE NOTICE, A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR CORRESPONDING TO THE RELEVANT ASSESSM ENT YEAR, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRES- CRIBED; AND THE PROVISIONS OF THIS ACT SHALL, SO FA R AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139 :] [ PROVIDED THAT IN A CASE ( A ) WHERE A RETURN HAS BEEN FURNISHED DURING THE PERI OD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMB ER, 2005 IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND ( B ) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER SUB-S ECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO SUB-SECTION (2) OF SECTION 143, AS IT STOOD IMMEDIATELY BEFORE THE AMENDMENT OF SAI D SUB-SECTION BY THE FINANCE ACT, 2002 (20 OF 2002) BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKING THE ASSESSMENT, RE-ASSESSMENT OR RECOMPUTATION AS SPECI FIED IN SUB-SECTION (2) OF SECTION 153, EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHALL BE DEEMED TO BE A VALID NOTICE: PROVIDED FURTHER THAT IN A CASE ( A ) WHERE A RETURN HAS BEEN FURNISHED DURING THE PERI OD COMMENCING ON THE 1ST DAY OF OCTOBER, 1991 AND ENDING ON THE 30TH DAY OF SEPTEMB ER, 2005, IN RESPONSE TO A NOTICE SERVED UNDER THIS SECTION, AND ( B ) SUBSEQUENTLY A NOTICE HAS BEEN SERVED UNDER CLAUS E (II) OF SUB-SECTION (2) OF SECTION 143 AFTER THE EXPIRY OF TWELVE MONTHS SPECIFIED IN THE PROVISO TO CLAUSE (II) OF SUB- SECTION (2) OF SECTION 143 , BUT BEFORE THE EXPIRY OF THE TIME LIMIT FOR MAKIN G THE ASSESSMENT, REASSESSMENT OR RECOMPUTATION AS SPECIF IED IN SUB-SECTION (2) OF SECTION 153 , EVERY SUCH NOTICE REFERRED TO IN THIS CLAUSE SHAL L BE DEEMED TO BE A VALID NOTICE.] ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 18 [EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HERE BY DECLARED THAT NOTHING CONTAINED IN THE FIRST PROVISO OR THE SECOND PROVISO SHALL APPLY TO ANY RETURN WHICH HAS BEEN FURNISHED ON OR AFTER THE 1ST DAY OF OCTOBER, 2005 IN RESPONS E TO A NOTICE SERVED UNDER THIS SECTION.] [(2) THE ASSESSING OFFICER SHALL, BEFORE ISSUING A NY NOTICE UNDER THIS SECTION, RECORD HIS REASONS FOR DOING SO.] 25. FROM GOING THROUGH THE ABOVE PROVISIONS, WE OBS ERVE THAT WHEN THE ASSESSEE RECEIVES NOTICE U/S 148 AND IS RE QUIRED TO FILE RETURN OF INCOME THEN AS PER THE PROVISIONS OF SECT ION 148 SUCH RETURN IS TREATED AT PAR AS IF SAME WERE REQUIRED TO BE FU RNISHED U/S 139. FURTHER WHEN WE MOVE TO THE RULE 41 SUB-RULE(2) PRO VIDES THAT THE CLAIM OF TDS SHALL BE ACCOMPANIED BY RETURN IN THE FORM PRESCRIBED U/S 139 OF THE ACT. MOVING FURTHER WHEN WE GO THROU GH THE RULE 37BA(4) WE FIND THAT CREDIT FOR TAX DEDUCTED AT SOU RCE AND PAID TO THE ACCOUNT OF CENTRAL GOVERNMENT SHALL BE GRANTED ON T HE BASIS OF INFORMATION RELATING TO DEDUCTION OF TAX FURNISHED BY THE DEDUCTOR TO THE INCOME-TAX AUTHORITY AND THE INFORMATION PROVID ED IN THE RETURN OF INCOME. NOW WHEN WE LINK UP THE PROVISIONS OF SECTI ON 148 OF THE ACT WITH RULE 41(2) AND RULE 37BA(4) OF IT RULES, WE FI ND THAT ASSESSEE FILED RETURN OF INCOME IN THE PRESCRIBED FORM IN CO MPLIANCE WITH NOTICE U/S 148 OF THE ACT AND PROVIDED ALL NECESSARY INFOR MATION RELATING TO TDS TO THE ASSESSING AUTHORITY AND THEREBY SATISFYI NG ALL THE CONDITIONS WHICH ARE REQUIRED FOR CLAIMING REFUND. WE ARE, THEREFORE, OF THE VIEW THAT IN THE GIVE FACTS OF THE CASE WHEN ASSESSEES REVENUE HAS NOT BEEN QUESTIONED AND ALL NECESSARY I NFORMATION IN THE FORM OF RETURN OF INCOME AND TDS CERTIFICATE WERE B EFORE THE LD. ASSESSING OFFICER THEN THE TDS CREDIT OF RS.3,96,19 1 OUGHT TO HAVE BEEN ALLOWED. THEREFORE, WE FIND NO REASON TO INTER FERE WITH THE ORDER ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 19 OF LD. CIT(A) AND UPHOLD THE SAME. THIS GROUND OF R EVENUE IS DISMISSED. 26. OTHER GROUND NOS. (IV) & (V) OF REVENUES APPEA L ARE GENERAL NATURE, WHICH NEED NO ADJUDICATION. 27. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED AN D THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JULY, 2016 SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 21/7/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD ITA NO. 1567 & 1712/AHD/2012 ASST. YEAR 2008-09 20 1. DATE OF DICTATION: 18/07/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 20/07/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 21/7/2016 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: