Parkash Singh Bhinder, Chandigarh V. ITO, W-5(1), Chandigarh

ITA 18/CHANDI/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4309 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 05-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO.18/CHD/2018 ASSESSMENT YEAR: 2014-15 SH. PARKASH SINGH BHINDER VS. ITO PLOT NO. 38, 1 ST FLOOR WARD 5(1) NEW TIMBER MARKETS, SEC-26 CHANDIGARH CHANDIGARH PAN NO. AHUPB8285H (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. AJAY JAIN REVENUE BY : SH. MANJIT SINGH DATE OF HEARING : 18/02/2019 DATE OF PRONOUNCEMENT : 18/02/2019 ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 29/11/2017 OF LD. CIT(A)-2, CHANDIGARH. 2. THE ONLY GRIEVANCE OF THE ASSESEE IN THIS APPEAL RELATING TO THE SUSTENANCE TO ADDITION OF RS. 5,66,350/-MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN TURNOVER IN SERVICE TAX RE TURN. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 02/07/2014 DECLARING IN INCOME OF RS.6,26,770/- AFT ER CLAIMING DEDUCTION OF RS. 1 LAC UNDER CHAPTER-VI, LATER ON THE CASE WAS SELECTE D FOR SCRUTINY. 4. THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS NOTICED THAT AS PER THE AUDIT REPORT OF THE ASSESSE E THE GROSS RECEIPT FROM TRANSPORT BUSINESS WAS SHOWN AT RS. 6,19,15,008/- W HEREAS FIGURE SHOWN BEFORE THE SERVICE TAX AUTHORITY WERE AT RS. 6,35,64,730/- . THUS THERE WAS DIFFERENCE OF RS. 16,49,722/-. 5. THE ASSESSING OFFICER ASKED THE ASSESEE TO RECON CILE THE SAME. IN RESPONSE, THE ASSESSEE SUBMITTED THAT THE REQUEST H AD BEEN FILED WITH SERVICE TAX DEPARTMENT FOR THE CORRECTION OF THE FIGURE RE LATING TO GROSS RECEIPT AND THAT THE ASSESSEE WAS A TRANSPORTER, THERE WERE NO TAX IMPLICATION ON THE ASSESSEE AS ACCORDING TO REVERSE CHARGE MECHANISM RULE, THE SERVICE TAX LIABILITY WAS ONLY ON CONSIGNER AND CONSIGNEE OF TH E GOODS. THE ASSESSING OFFICER HOWEVER, DID NOT FIND MERIT IN THE SUBMISSI ONS OF THE ASSESSEE AND 2 APPLIED THE GP RATE 34.33% ON THE AFORESAID DIFFERENCE OF RS. 16,49,722/-. ACCORDINGLY THE ADDITION OF RS. 5,66,350/- WAS MADE . 6. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT AS SOME ERROR HAD CREEPED IN WHILE F URNISHING HALF YEARLY SERVICE TAX RETURN FOR THE PERIOD APRIL 2013 TO SEPTEMBER 2 013 WHICH WAS LATER RECTIFIED AND CORRECT FIGURE WAS REPORTED TO THE SERVICE TAX AUTHORITIES. IT WAS ALSO STATED THAT THE HIGHER FIGURE OF TURNOV ER WAS DUE TO CLERICAL ERROR. THE LD. CIT(A), HOWEVER, DID NOT FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE AND OBSERVED THAT ASSESEE DID NOT MAKE ANY EFFORT TO CORRECT THIS MISTAKE IN TIME IN SO FAR AS THE HIGHER FIGURE WAS REPORTED FOR THE PERIOD APRIL 2013 TO SEPTEMBER 2013, AND THE LETTER FOR THE CORR ECTION WAS FILED ON 15/01/2016 I.E; AFTER 2YEARS AND 4 MONTHS WHICH WAS FILED ONLY AFTER THE SUPPRESSION OF TURNOVER WAS DETECTED BY THE ASSESSI NG OFFICER DURING THE ASSESSMENT PROCEEDING. HE ALSO OBSERVED THAT THE AS SESSEE WAS IN THE TRANSPORT BUSINESS WHEREIN MANY RECEIPTS WERE IN CASH AND SUP PRESSION OF TURNOVER COULD NOT BE RULED OUT. ACCORDINGLY THE ADDITION MADE BY THE ASSESSING OFFICER WAS SUSTAINED. 7. NOW THE ASSESSEE IN APPEAL. 8. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THERE WAS DIFFERENCE IN THE FIGURES MENTIONED IN ST-3 RETURN FIELD IN THE YEAR 2013-14 AND CORRECT FIGURE WAS POINTED OUT TO THE SERVICE TAX AUTHORITY, REFERENCE WAS MAD E TO PAGE NOS. 1 & 2 OF THE ASESSEES PAPER BOOK. IT WAS CONTENDED THAT ASSESSE E WAS NOT LIABLE TO PAY ANY SERVICE TAX WHICH WAS A LIABILITY OF CONSIGNER OR C ONSIGNEE. THEREFORE THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINE D BY THE LD. CIT(A) WAS NOT JUSTIFIED. 9. IN HIS RIVAL SUBMISSIONS LD. SR. DR STRONGLY SUP PORTED THE ORDERS OF AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS MADE THEREIN. 10. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE VIDE LETTER DT. 15/01/2016 INFORMED THE SUPERINTEND ANT OF SERVICE TAX RANGE 1, CHANDIGARH THAT AN INCORRECT AMOUNT WAS FURNISHED I N FORM ST-3. IT IS ALSO AN ADMITTED FACT THAT THE ASSESSING OFFICER MADE THE A DDITION ON THE BASIS OF THE DIFFERENCE IN FIGURES MENTIONED IN SERVICE TAX RETU RN AND AUDIT REPORT. HOWEVER 3 IT IS NOT CLEAR AS TO WHETHER THE FIGURE FURNISHED BY THE ASSESSEE TO THE SERVICE TAX DEPARTMENT WERE ACCEPTED AND IF ACCEPTED AS TO WHETHER THERE WAS DIFFERENCE IN FIGURES MENTIONED IN SERVICE TAX RETU RN AND REPORTED IN AUDIT REPORT. I THEREFORE, CONSIDERING THE TOTALITY OF TH E FACTS, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE ASSESS ING OFFICER TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 11. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 18/02/2019) SD/- (N.K. SAINI) VICE PRESIDENT PLACE: CHANDIGARH DATED : 18/02/2019 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR