M/s. National Transport, Keonjhar V. Principal CIT, Cuttack Charge, Cuttack

ITA 179/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3449 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAAD KIDWAI
• Keywords: Revision of order; Assessment record
• Section: 143(3); 142(1); 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ITA NO. 17 9 /CTK/201 7 ( [ [ / ASSESSMENT YEAR : 20 12 - 20 13 ) M/S NATIONAL TRANSPORT, STATION ROA D, BARBIL, KEONJHAR - 758035 VS. PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAWAN, SHELTER SQUARE, TULSIPUR, CUTTACK - 753008 ./ ./ PAN/TAN NO. : AA CFN 5605 J ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : NONE /REVENUE BY : SHRI SAAD KIDWAI, CITDR / DATE OF HEARING : 2 1 / 0 8 /201 8 / DATE OF PRONOUNCEMENT 24 / 0 8 /201 8 / O R D E R PER SHRI PAVAN KUMAR GADALE, J M : TH IS IS AN APPE AL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE PR. CIT, CUTTACK, PASSED U/S.263 OF THE ACT, DATED 1 4 .03.2017. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING, NEITHER ANY ADJOURNMENT PETITION IS FILED BY THE ASSESSEE. THER EFORE, THE BENCH PROCEEDED TO DISPOSE OFF THE APPEAL OF THE ASSESSEE AFTER CONSIDERING THE SUBMISSION OF LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE ORDER U/S.263 OF THE I.T. ACT, DT.1 4 .03.2017 FOR THE ASSESSMENT YEAR 2012 - 13 AS PASSED BY THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX, CUTTACK IS FAR FROM JUST AND LEGAL ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. FOR THAT THE LEARNED PRINCIPAL COMMISSIONER OF IN COME TAX ERRED IN INITIATING PROCEEDINGS U/S.263 OF THE I.T.ACT AND ITA NO. 17 9 / /1 7 2 CANCELLING THE ASSESSMENT ORDER DT.05.03.2015 PASSED U/S 143(3) OF THE IT ACT., WITHOUT CONSIDERING THE SUBMISSION OF THE APPELLANT ON THE ALLEGED GROUND I.E. LACK OF ENQUIRY BY THE A.O. O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE . 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF CONTRACT WORKS OF TRANSPORTING AND LOADING AND FILED RETURN OF INCOME ON 30.09.2012 FOR THE A.Y.20 12 - 20 13 DECLARING TOTAL INCO ME OF RS. 4,07,87,000/ - . SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICES U/S.143(2) & 142(1) OF THE ACT WERE ISSUED. IN COMPLIANCE OF THE SAME, LD. AR APPEARED BEFORE THE AO AND CASE WAS DISCUSSED. THEREAFTER THE AO COMPLETED THE RE AS SESSMENT ASSESSING TOTAL INCOME AT RS. 4,24,26,300/ - AND PASSED ORDER U/S. 143(3) OF THE ACT, DATED 05.03.2015 AND MADE DISALLOWANCE OF INTEREST ON INVESTMENT U/S.14A, DISALLOWANCE OF EXPENDITURE CLAIMED UNDER THE HEAD CSR ACTIVITIES , DISALLOWANCE OF DEPRECI ATION AND DISALLOWANCE OF LOSS ON SALE OF ASSET . 5. THE PR. CIT FOUND THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND ISSUED NOTICE. FURTHER THE PR. CIT AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND FINDINGS O F THE AO HAS SET ASIDE THE ASSESSMENT ORDER U/S.143(3) OF THE ACT TO THE AO FOR FRESH ADJUDICATION. 6. AGGRIEVED BY THE ORDER OF THE PR. CIT THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7. NONE APPEARED ON BEHALF OF THE ASSESSEE, WHEREAS LD. DR SUPPORTED THE ORDERS OF PR. CIT ITA NO. 17 9 / /1 7 3 8 . WE HAVE HEARD SUBMISSIONS OF LD. DR AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FOUND THAT THE PR. CIT WHILE DEALING WITH THE ISSUE OBSERVED THAT T HE THE AO SHOULD HAVE EXAMINED THE ISSUE TO ASCERTAIN WHETHER SEC.40 (A)(IA) OF THE ACT IS APPLICABLE IN RESPECT OF INTEREST AMOUNT ACTUAL PAID TO NBFCS WITHOUT TDS . THE OBSERVATIONS OF THE PR. CIT ARE AS UNDER : - 4. I HAVE GONE THROUGH THE FACTS OF THE CASE FROM THE ASSESSMENT RECORD AND SUBMISSION OF THE A/R FILED ON BEHALF OF THE ASSESSEE. I AM OF THE VIEW THAT THE AO SHOULD HAVE EXAMINED THE ISSUE TO ASCERTAIN WHETHER SEC.40(A)(IA) IS APPLICABLE IN RESPECT OF INTEREST AMOUNT ACTUAL PAID TO NBFCS WITHOUT TDS. 5. IN THIS REGARD, REFERENCE CAN BE MADE TO T HE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RAMAPYARI DEVI SAROGI (1968) 67 ITR84 AND IN THE CASE OF SMT TARADEVI AGARWAL VS CIT 88 ITR 323 WHEREIN THE HON'BLE APEX COURT HELD THAT LACK OF ENQUIRY OR VERIFICATION AT THE RELEVANT TIME BY THE AO WOUL D CONSTITUTE PREJUDICE TO THE INTEREST OF REVENUE AND WOULD INVOLVE ERROR OF FACT AND LAW. SIMILARLY, THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF UMA SHANKAR RICE MILLS VS. CIT ( 187 ITR 638) HAVE OBSERVED THAT WHERE THE COMMISSIONER FELT THAT PRO PER ENQUIRY WAS NOT MADE BY THE AO DURING THE ASSESSMENT PROCEEDING, HE WAS JUSTIFIED IN INVOKING THE PROVISION OF SECTION 263 IN RESPECT OF THE ORDER PASSED BY THE AO. EVEN INCOME TAX ACT HAS BEEN AMENDED AND EXPLANATION 2 HAS BEEN INSERTED U/S 263(1) WHE REIN IT IS CLARIFIED THAT AN ORDER PASSED BY THE AO SHALL BE DEEMED TO BE ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE, IF, IN THE OPINION OF THE PRINCIPAL COMMISSIONER/ COMMISSIONER, THE ORDER IS PASSED WITHOUT MAKING ENQUIRIES OR V ERIFICATION WHICH SHOULD HAVE BEEN MADE. 6. IN VIEW OF THE ABOVE, THE ASSESSMENT ORDER FRAMED U/S 143(3) OF IT ACT DATED 05.03.2015 PASSED BY THE AO FOR THE A.Y. 2012 - 13 IS HEREBY SET ASIDE TO THE AO FOR ADJUDICATION OF THE ISSUES AFRESH AND REFRAME THE A SSESSMENT AFTER PROPER APPRECIATION OF FACTS AND APPLICATION OF LAW AND AS PER THE OBSERVATION AND DIRECTION GIVEN ABOVE. NEEDLESS TO SAY WHILE REFRAMING THE ASSESSMENT ORDER, THE AO SHOULD PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE. ISSUE COPY OF THIS ORDER TO THE ASSESSEE, TO THE ASSESSING OFFICER, TO THE JCIT, RANGE - L,CUTTACK. FROM THE ABOVE FACTUAL MATERIAL RELIED AND OBSERVATIONS OF THE PR.CIT, WE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE FINDINGS OF THE PR. CIT ITA NO. 17 9 / /1 7 4 AND ACCORDINGLY WE CONFIRM T HE SAME AND DISMISS THE GROUNDS OF APPEAL OF THE ASSESSEE. 9 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 / 08 /201 8 . SD/ - (N. S. SAINI) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 24 / 08 /2018 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENI OR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - M/S NATIONAL TRANSPORT, STATION ROAD, BARBIL, KEONJHAR - 758035 2. / THE RESPONDENT - PRINCIPAL COMMISSIONER OF INCOME TAX, AAYAKAR BHAWAN, SHELTER SQUARE, TULSIPUR, CUTTACK - 753008 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//