The ACIT, Vapi Circle, Vapi V. M/s. Toyota Construction Pvt.Ltd., Vapi

ITA 1617/AHD/2009

• Counselvise Citation: 161720514 RSA 2009
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. MOHAN A LANKAMONY, AM) ITA NO.1617/AHD/2009 A. Y.: 2006-07 THE A C. I. T., VAPI CIRCLE, ROOM NO.303,SHIVAM COMPLEX, GUNJAN CHAR RASTA, NH -8, VAPI VS TOYOTA CONSTRUCTION P. LTD., 204 205, PANCHRATNA CHAMBERS, CHAR RASTA, GIDC, VAPI PA NO. AACCM 2764 Q (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SAMIR TEKRIWAL, SR. DR RESPONDENT BY SHRI MEHUL K. PATEL, DATE OF HEARING: 03-10-2011 DATE OF PRONOUNCEMENT: 03-10-2011 O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A), V ALSAD DATED 12-03-2009 FOR ASSESSMENT YEAR 2006-07 ON THE FOLLO WING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE DISALL OWANCE MADE ON ACCOUNT OF DIFFERENCE IN RECEIPTS OF RS.80,00,000/-. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED CIT(A) HAS ERRED GRANTING RELIEF TO ASS ESSEE PURELY RELYING UPON THE SUBMISSIONS MADE BY THE ASSESSEE AT THE APPELLATE PROCEEDINGS, WHICH WERE N OT MADE AVAILABLE BY THE ASSESSEE AT THE TIME OF ITA NO.1617/AHD/2009 THE ACIT, VAPI CIRCLE VS TOYOTA CONSTRUCTION P. LTD . 2 ASSESSMENT PROCEEDINGS, WITHOUT GETTING VERIFIED TH E SAME FROM THE AO. 2. THE AO OBSERVED FROM THE DETAILS SUBMITTED BY TH E ASSESSEE COMPANY THAT IT HAS SHOWN TOTAL RECEIPTS TO THE TUN E OF RS.17,36,68,776/- AND IN THE PROFIT & LOSS ACCOUNT THE TOTAL RECEIPTS HAS BEEN SHOWN AT RS.16,01,23,488/-. THE AO NOTED T HAT THE ASSESSEE HAS NOT GIVEN LABOUR CHARGES, BIFURCATION CHARGES ON THE BASIS OF PROJECT UNDERTAKEN BY THE ASSESSEE. THE AS SESSEE WAS ASKED TO FURNISH THE DETAILS. THE ASSESSEE SUBMITTE D THE REPLY BEFORE THE AO WHY OUT OF DIFFERENCE OF RS.1,36,45,288/-, R S.56,45,288/- REPRESENTED SERVICE TAX AMOUNT AND REMAINING RS.80, 00,000/- CONSTITUTES DISCOUNT GIVEN TO M/S. MANDHAMA INDUSTR IES PVT. LTD. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AN D FOUND THAT THERE REMAINED RS.80,00,000/- TO BE RECONCILED. IT WAS ALSO NOTED THAT INDEPENDENT ENQUIRIES MADE FROM THE CONCERNED PARTIES DID NOT RESULT ANYTHING BECAUSE THE CONCERN PARTIES DID NOT RESPOND TO THE LETTERS OF THE AO. THE ADDITION OF RS.80,00,000/- W AS ACCORDINGLY MADE. THE ASSESSEE FILED CLARIFICATION BEFORE THE L EARNED CIT(A) REGARDING BILL ISSUED TO M/S. MANDHAMA INDUSTRIES P VT. LTD. AND SUBMITTED THAT REPLY WAS FILED BEFORE THE AO IN WHI CH CLARIFICATION WAS MADE. THE SAME IS REPRODUCED IN THE APPELLATE ORDER WHICH WAS SUPPORTED BY THE COPIES OF THE BILLS ETC. THE LEARN ED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND DELETED THE ADDI TION. 3. THE LEARNED DR SUBMITTED THAT WHATEVER RECONCILI ATION WAS MADE/FILED BEFORE THE LEARNED CIT(A) WAS NOT FILED BEFORE THE AO AT ANY STAGE AND THE LEARNED CIT(A) WITHOUT GETTING TH E FACTS VERIFIED ITA NO.1617/AHD/2009 THE ACIT, VAPI CIRCLE VS TOYOTA CONSTRUCTION P. LTD . 3 FROM THE AO DELETED THE ADDITION, THEREFORE, THE MA TTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO BECAUSE FAC TUAL VERIFICATION IS REQUIRED FROM THE CONCERNED PARTY AT THE LEVEL OF T HE AO. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE FA IRLY SUBMITTED THAT THOUGH RECONCILIATION WAS FILED BEFORE THE AO AS WA S REFERRED TO BY THE LEARNED CIT(A) IN THE APPELLATE ORDER BUT IT WA S RECEIVED BY THE AO ON 24-12-2008 (PB-4) WHICH WAS AFTER PASSING OF THE ASSESSMENT ORDER ON 23-12-2008. HE HAS, THEREFORE, SUBMITTED T HAT THE MATTER MAY BE REMANDED TO THE FILE OF THE AO FOR RECONSIDE RATION. 4. ON CONSIDERATION OF THE SUBMISSIONS OF THE PARTI ES AND THE FACTS OF THE CASE, WE ARE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. THE ASSESSEE ON THIS ISSUE FIL ED REPLY BEFORE THE AO DATED 18-12-2008 BUT IT WAS RECEIVED BY THE AO O N 24-12-2008 I.E. AFTER PASSING OF THE ASSESSMENT ORDER ON 23-12 -2008. THE LEARNED CIT(A) REPRODUCED THIS REPLY OF THE ASSESSE E IN THE APPELLATE ORDER AND ACCEPTED THE CONTENTION OF THE ASSESSEE E VEN WITHOUT VERIFYING THE SAME OR GETTING ANY REMAND REPORT FRO M THE AO. THEREFORE, THE COURSE ADOPTED BY THE LEARNED CIT(A) FOR DELETING THE ADDITION IS NOT SUSTAINABLE IN LAW. THE AO NOTED IN HIS FINDINGS THAT THE ENQUIRY LETTERS WERE SENT TO THE CONCERNED PART Y BUT THE CONCERNED PARTY DID NOT RESPOND TO THE LETTERS OF T HE AO. THEREFORE, FACTUAL VERIFICATION OF THE REPLY OF THE ASSESSEE IS REQUIRED SUPPORTED BY EVIDENCES FROM THE CONCERNED PARTY AT THE LEVEL PF THE AO. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIRECTION TO RE-DECIDE THE ISSUE IN THE LIGHT OF THE REPLY OF THE ASSESSEE FILED BEFORE HIM AFTER PASSING OF ITA NO.1617/AHD/2009 THE ACIT, VAPI CIRCLE VS TOYOTA CONSTRUCTION P. LTD . 4 THE ASSESSMENT ORDER BY GIVING REASONABLE SUFFICIEN T OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT/- 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 D Y. REGISTRAR, ITAT, AHMEDABAD