Assistant Commissioner of Income Tax, Jabalpur V. Shri Ritesh Tiwari, Jabalpur

ITA 175/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1056 (ITAT-JABALPUR)
• Duration Of Justice: 6 year(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 22-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2013
• Court: TRIBUNAL
• Department Lawyers: D R LAKHORIYA
• Keywords: Onus to prove; TDS
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.175/JAB/2013 A.Y. : 2009-10 ACIT, CIRCLE 1(1), JABALPUR VS SHRI RITESH TIWARI, 252, SOUTH MILLONIGANJ, DAMOHNAKA, JABALPUR APPELLANT RESPONDENT PAN NO. : AEIPT6421L C.O.NO. 27/JAB/2013 (ARISING OUT OF I.T.A.NO.175/JAB/2013) A.Y. : 2009-10 SHRI RITESH TIWARI, 252, SOUTH MILLONIGANJ, DAMOHNAKA, JABALPUR VS ACIT, CIRCLE 1(1), JABALPUR CROSS OBJECTOR RESPONDENT -: 2: - 2 DEPARTMENT BY : SHRI D.R.LAKHORIYA (D.R.) ASSESSEE BY : SHRI ANIL GUPTA, ADV. DATE OF HEARING : 2 2 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 09 . 0 6 .201 5 O R D E R PER GARASIA, J.M. APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF LD. CIT( A), JABALPUR DATED 13.12.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. THE FIRST GROUND RAISED BY THE REVENUE READS AS UND ER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD . CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 11,89,636/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWING THE AMOUNT OF SHORTAGE OCCURRED DURING THE TRANSPORTATION OF GOODS. 3. THE ASSESSEE HAS FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 20.09.2011. THE ASSESSEE IS IN TRANSPORT BUSINESS. THE AO HAD VERIFIED THE BOOKS O F ACCOUNT -: 3: - 3 AND ON VERIFICATION OF BOOKS OF ACCOUNT, THE AO FOU ND THAT THE ASSESSEE HAS CLAIMED SHORTAGE OF RS. 11,89,636 IN I TS PROFIT AND LOSS ACCOUNT. THE ASSESSEE WAS ASKED TO SUBMIT A COPY OF AGREEMENT OF M.P. STATE CIVIL SUPPLIES DEPARTMENT O N WHOSE BEHALF THE ASSESSEE WAS TRANSPORTING FOOD GRAINS OR ANY OTHER PROOF TO ESTABLISH GENUINENESS OF SUCH SHORTAGE DEB ITED TO PROFIT AND LOSS ACCOUNT. THE ASSESSEE COULD NOT PRO DUCE THE SAME AND, THEREFORE, THE AO MADE ADDITION OF RS. 11 ,89,636/-. 4. THE MATTER CARRIED TO THE LD. CIT(A), WHO HAS DELET ED THE ADDITION BY OBSERVING AS UNDER :- I HAVE PERUSED THE MATERIAL ON RECORD AND THE SUBMISSIONS OF THE COUNSEL CAREFULLY. THE AO MADE THE SAID ADDITION ON ACCOUNT OF NON SUBMISSION OF COPY OF AGREEMENT WITH M.P. STATE SUPPLIES DEPARTMENT. THE APPELLANT CONTENDED THAT COPY OF THE BILLS IN PROOF OF DEDUCTION OF SHORTAGE CONTAIN ING COMPLETE DETAILS OF DEDUCTION MADE BY M.P. STATE CIVIL SUPPLIES CORPORATION LIMITED WAS SUBMITTED BEFORE THE AO ALONGWITH A CHART INCLUDING, PLACE WHERE GOODS DISPATCHED, BILL NUMBER, RECEIVING -: 4: - 4 CENTER, NO OF BAGS, WEIGHT AT BOTH END AT DISPATCHI NG POINT & RECEIVING POINT, AMOUNT OF FREIGHT, AMOUNT OF SHORTAGE BOTH IN WEIGHT AND AMOUNT, TDS AMOUNT, SERVICE TAX AMOUNT AND ADVANCE DEDUCTED. I TEND TO AGREE WITH THE CONTENTION OF THE APPELLANT, THAT PA GE 62 OF ANNEXURE TO THE WRITTEN SUBMISSION IS A CERTIFICATE OF SHORTAGE ISSUED BY MP STATE SUPPLY CORPORATION AND THE CERTIFICATE IS PRIMARY EVIDENCE AS ASKED FOR BY THE ASSESSING OFFICER. HENCE, NO GROUN D REMAINED IN EXISTENCE FOR DISALLOWANCE OF SHORTAGE OF GOOD GRAIN DURING TRANSPORTATION. THE AO HAS NOT MADE ANY COMMENT ON THIS ISSUE IN HIS REMAND REPORT. IN VIEW OF THE ABOVE, THE ADDITION MADE ON ACCOUNT OF SHORTAGE OF RS. 11,89,636/- IS HEREBY DELETED. THIS GROUND OF APPEAL IS ALLOWED. 5. THE LD. D.R. RELIED UPON THE ORDER OF AO AND LD. AUTHORIZED REPRESENTATIVE ALSO RELIED UPON THE ORDE R OF THE CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ASSESSEE H AS SUBMITTED THE COPY OF AGREEMENT WITH M.P. STATE CIV IL SUPPLIES -: 5: - 5 DEPARTMENT, WHICH WAS SUBMITTED BEFORE THE CIT(A) A ND LD. CIT(A) HAS CALLED FOR REMAND REPORT FROM THE AO. AF TER VERIFICATION OF THE COPY OF THE AGREEMENT OF M.P. S TATE CIVIL SUPPLIES DEPARTMENT, THE LD. CIT(A) HAS DELETED THI S ADDITION. THE LD. CIT(A) HAS VERIFIED THE COPY OF THE BILLS I N PROOF OF DEDUCTIONS MADE BY M.P.STATE CIVIL SUPPLIES CORPORA TION. THE ASSESSEE HAS ALSO SUBMITTED A CHART INCLUDING PLACE S WHERE THE GOODS DISPATCHED, BILL NO., RECEIVING CENTER, N O. OF BAGS, WEIGHT AT BOTH ENDS, THE STARTING POINT AND RECEIVI NG POINT AND TDS AMOUNT, SERVICE TAX AMOUNT AND ADVANCE TAX HAS BEEN DEDUCTED AND LD. CIT(A) HAS DELETED THIS ADDITION. THEREFORE, OUR INTERFERENCE IS NOT CALLED FOR. GROUND NO.1 IS DISMISSED. 7. NEXT GROUND TAKEN BY THE REVENUE READS AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 23,10,543/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SUNDRY CREDITORS U/S 68 OF THE INCOME- TAX ACT, 1961. IGNORING THE FACT THAT ASSESSEE HAD FAILED TO DISCHARGE THE ONUS TO PROVE THE GENUINENESS OF THE TRANSACTIONS. RELIANCE IS PLACED -: 6: - 6 ON THE DECISION OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF INDIAN WOOLEN CARPET FACTORY VS. I.T.A.T., 260 ITR 658 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO HAS SHOWN SUNDRY CREDITORS FROM FOLLOWING PARTIES : - SR. NO. NAME AMOUNT 1. M/S.JAIN AUTOMOBILES 6,93,652/ - 2. M/S.M.T.ROADWAYS 49,531/ - 3. M/S. N.T. ROADLINES 13,12,860/ - 4. M/S. SHIVAM TIWARI 2,54,500/ - 23,10,543/ - 9. THE AO HAS ASKED FOR CONFIRMATION FROM SUNDRY CREDITORS ALONGWITH PAN NUMBERS. THE ASSESSEE HAS SUBMITTED THE CONFIRMATION, BUT NO PAN WAS QUOTED O N CONFIRMATION CERTIFICATE. THEREFORE, THE IDENTITY O F THE SUNDRY CREDITORS WAS NOT ESTABLISHED IN ABSENCE OF PAN NUM BERS. THEREFORE, THE AO HAS MADE THE ADDITION OF RS. 23,1 0,543/- 10. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) HA S DELETED THE ADDITION BY OBSERVING AS UNDER :- -: 7: - 7 I HAVE PERUSED THE MATERIAL ON RECORD AND THE SUBMISSIONS OF THE COUNSEL CAREFULLY. THE AO MADE THE ADDITION OF THE SUNDRY CREDITORS U/S 68, AS TH E PAN WAS NOT QUOTED BY THE APPELLANT ON THE CONFIRMATIONS SUBMITTED DURING ASSESSMENT PROCEEDINGS. THE APPELLANT HAS CONTENDED THAT THE CREDITORS BEING TRADE CREDITORS DO NOT COME UNDER T HE AMBIT OF SECTION 68. IT WAS ALSO CONTENDED THAT THE EXPENSES HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER AND HENCE, THE TRADE CREDITORS COULD NOT BE TREATED AS NON-GENUINE. I TEND TO AGREE WITH THE CONTENTION OF THE COUNSEL. THE CREDITORS BEING TRAD E CREDITORS WILL NOT COME UNDER THE AMBIT OF SECTION 68. MORE SO EVER, THE CONFIRMATIONS WERE SUBMITTED BY THE APPELLANT DURING ASSESSMENT PROCEEDINGS. THE PAN HAVE BEEN SUBMITTED DURING THE APPELLATE PROCEEDINGS. I ALSO FIND THAT THE AO HAS ACCEPTED T HE EXPENSES SHOWN BY THE ASSESSEE. NO OTHER FINDING IS GIVEN BY THE ASSESSING OFFICER REGARDING THE CREDITORS. IN VIEW OF THIS, THE ADDITION MADE ON -: 8: - 8 ACCOUNT OF SUNDRY CREDITORS U/S 68 OF RS. 23,10,543 IS DELETED. THIS GROUND OF APPEAL IS ALLOWED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS ADDED THIS AMOUNT IN HIS BOOKS OF ACCOUNT AS SUNDRY CREDITORS OF RS. 23,10,543/-. THE AO HAS ADDED THIS AMOUNT U/S 68 OF THE ACT. THE ASSESSEE COULD NOT SUBMIT THE PAN NUMBERS, THEREFORE, THE LD. CIT(A) H AS ADDED THIS AMOUNT U/S 68 OF THE ACT. WE FIND THAT THE SUN DRY CREDITORS ARE NOT CASH CREDITORS, BUT THEY ARE TRAD E CREDITORS. THE AO HAS VERIFIED ALL THE EXPENSES AND HE HAS ALL OWED TOTAL EXPENSES AND ON THE OTHER SIDE, HE HAS ALSO ADDED T HE SAME U/S 68 OF THE ACT, WHICH THE AO COULD NOT MAKE. THE REFORE, THE LD. CIT(A) HAS DELETED THIS ADDITION. OUR INTER FERENCE IS NOT CALLED FOR. GROUND FAILS. C.O.NO.27/JAB/2013: 12. SINCE THE REVENUES APPEAL IS DISMISSED, THE CROSS OBJECTION HAS BECOME INFRUCTUOUS. THEREFORE, WE DIS MISS THE CROSS OBJECTION. -: 9: - 9 13. IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS CROSS OBJECTION BOTH ARE DISMISSED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 9 TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 09 TH JUNE, 2015. CPU* 46