Omkara Impex and Merchandise Pvt. Ltd., Ahmedabad V. DCIT, Circle-3(1)(2), Ahmedabad

ITA 1762/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5311 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-03-2020
• Assessment Year: 2014-2015
• Appeal Filed On: 07-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: P B PARMAR
• Keywords: Principle of natural justice; TDS; Set aside; FORM 26AS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) [THROUGH VIRTUAL COURT] ITA. NOS: 1762 & 1763/AHD/2018 (ASSESSMENT YEARS: 2014-15) OMKARA IMPEX AND MERCHANDISE P. LTD. OMKARA HOSTEL, NEAR ADANI PRATHAM, BEHIND NIRMA UNIVERSITY TRAGAD ROAD, AHMEDAGBAD- 382470 PAN NO. AAACO7308J THE DCIT, CIRCLE-3(1)(2), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.B. PARMAR, A.R. RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 27-02-2021 DATE OF PRONOUNCEMENT : 11-05-2021 PER MAHAVIR PRASAD, J.M. 1. ITA NO. 1762 & 1763/AHD/2018 HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (HEREINAFTER CALLED CIT(A)) ORDER NO. ITA NOS. 1762 & 1763/AHD/2018 . A.Y. 2014-15 2 CIT(A)-9/10053/DCIT CIR-3(1)(2)/2017-18 ORDER DATED 20/06/2018 ARISING OUT OF ASSESSMENT ORDER DATED 26/12/2016. ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL: 1. THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE AO PASSED THE ORDER WITHOUT GIVING A REASONABLE OPPORTUNITY OF HEARING WHICH IS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. 2. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF RS.20,003/- U/S. 36(1)(VA) R.W.S.2(24)(X) OF THE ACT. 3. ALTERNATIVELY AND WITHOUT PREJUDICE TO THE ABOVE, THE MATTER SHOULD BE REMANDED TO THE AO TO VERIFY WHETHER THE SUM WAS DEPOSITED WITHIN 21 DAYS FROM THE END OF THE MONTH OF PAYMENT OF SALARY AS CONTEMPLATED UNDER THE PROVISIONS OF EMPLOYEES PROVIDENT FUNDS & MISCELLANEOUS PROVISIONS ACT, 1952 AND EMPLOYEES STATE INSURANCE ACT, 1948. 4. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS.3,64,112/- AS SUPPRESSED REVENUE ON ACCOUNT OF DIFFERENCE IN BOOKS OF ACCOUNT AND FORM 26AS. 5. ALTERNATIVELY AND WITHOUT PREJUDICE, THE LEARNED CIT(A) HAS ERRED IN NOT DIRECTING THAT THAT THE IMPUGNED INCOME BE EXCLUDED FROM THE YEARS IN WHICH IT IS OFFERED FOR TAX. 6. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF VAT PENALTY WHICH IS COMPENSATORY IN NATURE OF RS.7,800/- AND TDS INTEREST OF RS.70,545/-U/S.37 OF THE ACT. 7. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDERS WITHOUT PROPERLY APPRECIATING THE FACTS AND THEY FURTHER ERRED IN GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BREACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHED. 8. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN LEVYING INTEREST U/S.234A/B/C OF THE ACT. 9. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN INITIATING PENALTY U/S.271(L)(C) OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT IS A TRADING- CONTRACTOR. 3. SO FAR GROUND NO. 1 IS CONCERNED, SAME ARE CONSEQUENTIAL AND NEED NOT BE ADJUDICATED. ITA NOS. 1762 & 1763/AHD/2018 . A.Y. 2014-15 3 4. SO FAR GROUND NO. 2 & 3 ARE INTER CONNECTED, LD. A.R. FAIRLY CONCEDED THAT THIS GROUND OF APPEAL IS AGAINST THE ASSESSE IN VIEW OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION 366 ITR 170 WHEREIN IT HAS BEEN HELD WHERE ASSESSE DEPOSIT EMPLOYEES CONTRIBUTION OF PF AND ESI BEYOND THE TIME ALLOWED UNDER THE RELEVANT ACT. IN THAT CASE, DISALLOWANCES CAN BE JUSTIFIED. 5. NOW WE COME TO GROUND NO. 4 IS CONCERNED, LD. A.O. NOTICE THAT ASSESEE HAS RECEIVED VARIOUS PAYMENTS FROM LAFARGE AGGREGATES & CONCRETE INDIA PVT. LTD. ON ENQUIRY, ASSESSE SUBMITTED THE RECONCILIATION OF PAYMENT OF RS. 3,51,301/- STATED TO HAVE BEEN RECEIVED FROM THIS COMPANY BUT ASSESSEE HAS NOT CREDITED ANY AMOUNT IN THE INCOME. THE ASSESSE HAS SUBMITTED THAT IT HAS NO EVIDENCE OF THIS INCOME. SIMILARLY, ASSESSE HAS ALSO FAILED TO RECONCILE THE INTEREST ON DEPOSIT RECEIVED FROM THE INDIAN CEMENT LTD. AMOUNTING TO RS. 12,811/- AND LD. A.O. MADE THE ADDITION OF RS. 3,64,112/-. 6. AGAINST THE SAID ORDER, ASSESSE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO CONFIRMED THE ACTION OF THE LD. A.O. 7. WE HAVE HEARD BOTH THE PARTIES. LD. D.R. RELIED ON THE ORDER OF THE A.O. AND LD. CIT(A). ON THE OTHER HAND, ASSESSE SUBMISSION THAT SAID INCOME NEVER REALLY ACCRUED TO THE APPELLANT AND THUS THE SAME SHOULD BE ASSESSEE IN THE HANDS OF THE CORRECT PERSON AND THE CREDIT OF TDS SHOULD ALSO BE GIVEN IN THE HANDS OF THE CORRECT PERSON. 8. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE CONSIDERED OPINION, THAT MATTER SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER IN ORDER TO ASCERTAIN TO FIND OUT WHO IS THE REAL RECIPIENT OF THE INCOME WHEREIN TDS WAS DEDUCTED AND HE WILL ASCERTAIN AFTER SUMMONING OR MAKING NECESSARY INQUIRY THE LAFARGE AGGREGATES & CONCRETE INDIA PVT. LTD. AND THEREAFTER WILL DECIDE THE MATTER AS PER LAW. ITA NOS. 1762 & 1763/AHD/2018 . A.Y. 2014-15 4 9. AND REST OF THE GROUNDS ARE CONSEQUENTIAL AND NEED NOT BE ADJUDICATED AT THIS STAGE. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 11. NOW WE COME TO PENALTY APPEAL IN ITA NO. 1763/AHD/2018 WHEREIN PENALTY HAS BEEN IMPOSED ON ACCOUNT OF MISMATCH IN FORM 26AS. 12. SINCE WE HAVE SET ASIDE THE SAID QUANTUM GROUND TO THE FILE OF THE ASSESSING OFFICER, THEREFORE PENALTY APPEAL IS ALSO SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE AS PER LAW AFTER TAKING INTO CONSIDERATION, THE ITA NO. 1762/AHD/2018 AND WILL DECIDE MATTER AS PER PROVISIONS OF LAW. 13. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 11- 05- 2021 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 11/05/2021 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD