Deputy Commissioner of Income-tax,Circle-8, Nagpur V. Mrs. Rutuja Ramesh Tupkar, Nagpur

ITA 185/NAG/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3866 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A C BAWANE
• Keywords: Additional evidence
• Section: 131

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR , BENCH , ( E - COURT), MUMBAI , BEFORE SHRI R.K.GUPTA , J M & SHRI D.KARUNAKAR RAO , A M ITA NO. 185 / N AG / 20 10 ( ASSESSMENT YEAR :2006 - 2007 ) DCIT, CIRCLE - 8, MECL BUILDING SEMINARY HILLS, AMBEDKAR BHAWAN, NAGPUR - 440 006 VS. RUTUJA RAMESH TUPKAR, 34, KABIR NAGAR, NANDANWAN MAIN ROAD, NAGPUR. PAN/GIR NO. : A AGPT 8768 E ( APPELLANT ) .. ( RESPONDENT ) /REVENUE BY : MR. PRAKASH MANE /ASSESSEE BY : MR. A.C.BAWANE DATE OF HEARING : 7 TH MARC H ., 201 3 DATE OF PRONOUNCEMENT : 3 RD APRIL ,201 3 O R D E R P ER SHRI R.K.G UPTA, JM : TH E DEPARTMENT HAS PREFERRED THIS APPEAL BEFORE THE ITAT NAGPUR BENCH, NAGPUR, AGAINST THE ORDER DATED 18 - 10 - 2010 OF LEANED CIT(A) - I I , NAGPUR (MAHARASHTRA) RELA TING TO THE ASSESSMENT YEAR 200 6 - 0 7 , WHICH HAS BEEN HEARD THROUGH E - COURT, MUMBAI. 2 . THE DEPARTMENT IS OBJECTING THE DELETING THE ADDITION OF RS. 5 LACS MADE UNDER SECTION 68, DELETING THE ADDITION OF RS. 16,58,448/ - MADE ON ACCOUN T OF WAG E S AND DELETING THE ADDITION OF RS. 2,15,048/ - ON ACCOUNT OF LABOUR CHARGES. THE DEPARTMENT HAS ALSO TAKE A GROUND THAT THE LEARN ED CIT(A) ERRED IN ACCEPTING THE FRESH EVIDENCE IN VIOLATION OF RULE 46A OF THE ACT. 3 . LEARNED DR , AT THE TIME OF HEAR ING, PLACED RELIANCE ON THE ORDER OF THE AO . ITA NO. 185 /20 10 2 4 . ON THE OTHER HAND, LEARNED COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE ORDER OF THE LEARNED CIT(A) . IT WAS ALSO SUBMITTED THAT THOUGH SOME ADDITIONAL EVIDENCES WERE FILED BEFORE THE CIT(A) BUT LEARNED CIT (A) HAS TAKEN A REMAND REPORT FROM THE AO IN SENDING THE DETAILS FILED BEFORE HIM. THEREFORE, THE GROUND OF THE DEPARTMENT THAT THE FRESH EVIDENCE CONSIDERED BY THE CIT(A) WAS NOT JUSTIFIED, IS NOT CORRECT. 5 . WE HAVE HEARD THE RIVAL SUBMISSION OF BOTH THE PARTIES AND CONSIDERED THEM CAREFULLY. NOW, WE WILL DISPOSE OF THE APPEAL OF THE DEPARTMENT IN THE FOLLOWING MANNER : - 5.1 REGARDING DELETING THE ADDITION OF RS. 5 LAKHS, IT IS SEEN THAT THE AO MADE ADDITION ON THE BASIS OF STATEMENT RECORDED UNDER SE CTION 131 ON 2 - 1 2 - 2008 OF SHRI RAMESH TUPKAR. ACCORDING TO THE AO, SINCE THE LOAN WAS TAKEN BY CASH AND SINCE SHRI RAMESH TUPKAR HAS NOT FILED INCOME TAX RETURN, THE LOAN IS NOT PROPERLY EXPLAINED. ACCORDINGLY, HE MADE THE ADDITIONS. 5.2 IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT OUT OF SALE OF AGRICULTURAL PRODUCE THE AMOUNT OF RS. 5,00,000/ - WAS RECEIVED AND THE SAME WAS DEPOSITED IN THE BANK BY CREDITOR AND AFTER WITHDRAWAL FROM THE BANK THE AMOUNT WAS TAKEN BY THE ASSESSEE . NECESSARY DETAILS WERE F ILED BEFORE THE CIT(A) . THE REMAND REPORT SOUGHT FROM THE AO . THE CIT(A) NOTED THAT THE AO HIMSELF HAS RECORDED A STATEMENT AND IN THE STATEMENT RECORDED FROM SHRI RAMESH TUPKAR HAS EXPLAINED THE SOURCE OF LOAN OF RS. 5 LAKHS. IT WAS ASCERTAINED BY THE LEAR NED CIT(A) ITA NO. 185 /20 10 3 THAT ALL THE DETAILS FOR PROVING THE AMOUNT WERE AVAILABLE WITH THE CREDITOR, WHICH WERE FILED AND THEY WERE NOT FOUND INCORRECT EVEN IN THE REMAND REPORT. IT WAS ASCERTAINED BY LEARNED CIT(A) THAT THE AGRICULTURAL PRODUCE WAS SOLD AND OUT OF TH AT, THE ASSESSEE RECEIVED A LOAN OF RS. 5 LAKHS. ACCORDINGLY, AFTER CONSIDERING THE SUBMISSION AND PERUSING THE MATERIAL ON RECORD, LEARNED CIT(A) OBSERVED THAT SHRI RAMESH TUPKAR, WHO IS A RETIRED STATE GOVERNMENT EMPLOYEE, WHO ALSO CARRIED ON AGRICULTURAL ACTIVITY. IT WAS FURTHER SEEN THAT ADDITION WAS MADE ON THE BASIS OF NO BANK PASS BOOK WAS PRODUCED WHEREAS IN APPELLATE PROCEEDING, THE BANK PASS BOOK WAS PRODUCED AND THE SAME WAS SENT TO THE AO FOR HIS COMMENTS. IT WAS ALSO SEEN THAT THERE WAS AN AGRIC ULTURAL PRODUCE AND OUT OF AGRICULTURAL PRODUCE, THE LOAN OF RS. 5 LAKHS WAS GIVEN TO THE ASSESSEE. ACCORDINGLY, IT WAS FOUND THAT SOURCE OF LOAN, IDENTITY OF THE PERSON AND GENUINENESS OF THE TRANSACTION IS PROVED. AC CORDINGLY, ADDITION WAS DELETED. 5.3 TH IS ASCERTAINED FACTS OBSERVED BY THE CIT(A) REMAINED UNCONTROVERTED AS LEARNED DR HAS PLACED RELIANCE ON THE ORDER OF THE AO. THEREFORE, WE SEE NO REASON TO INTERFERE IN FINDING OF THE LEARNED CIT(A) . ACCORDINGLY, WE CONFIRM HIS ORDER. 6 . REGARDING DISALLO WANCE OF RS. 16,58,448/ - , IT IS SEEN THAT THE AO MADE ADDITION FOR THE REASON THAT THE ASSESSEE HAS NO BILLS, VOUCHERS AND OTHER SUPPORTING DOCUMENTS LIKE LABOUR REGISTER, THEIR ATTENDANCE SHEETS WITH SIGNATURES OF THE LABOURERS, DETAILS OF P.F. OF THESE ITA NO. 185 /20 10 4 LA BOUR ERS , ETC. THEREFORE, THE AO DISALLOWED THE ENTIRE EXPENDITURE MADE ON ACCOUNT LABOUR WAGES . 6.1 DETAILED SUBMISSIONS WERE FILED ALONG WITH EVIDENCES BEFORE THE LEARNED CIT(A), WHICH WERE SENT TO THE AO FOR HIS REMAND REPORT. IT IS FURTHER SEEN THAT IN THE REMAND PROCEEDING, THE AO HAS NOT CONSIDERED THE EVIDENCE PRODUCED AT THE TIME OF APPELLATE PROCEEDING. ACCORDINGLY, REITERATED HIS FINDING AND RELIED ON THE RELEVANT PORTION OF THE ASSESSMENT ORDER. AFTER CONSIDERING THE SUBMISSION, EVIDENCES AND REM AND REPORT, LEARNED CIT(A) FOUND THAT FROM THE EVIDENCES PRODUCED BEFORE HIM, WHICH WERE IN THE SHAPE OF THE CHALLAN FOR PAYMENT OF P.F. AND E.S.I. COPY OF THE LABOUR WAGES SHEET WAS ALSO PRODUCED ALONG WITH THUMB IMPRESSION AND SIGNATURES OF THE LABOURERS . THEREFORE, IT WAS FOUND THAT THE FINDING OF THE LEARNED AO THAT NO EVIDENCE FILED WAS WRONG. THE CIT(A) FOUND THAT ALL THE BILLS, VOUCHERS AND SUPPORTING DOCUMENTS LIKE LABOUR REGISTER, ATTENDANCE SHEETS WITH SIGNATURES WERE ALSO FILE D AND THOSE WERE MAI NTAINED BY THE ASSESSEE. HE FURTHER NOTICED THAT GROSS PROFIT RATIO SHOWN BY THE ASSESSEE WAS 39.01% AGAINST 12.10% SHOWN EARLIER. THEREFORE, LEARNED CIT(A) FOUND THAT DISALLOWANCE OF LABOUR EXPENSES WERE NOT JUSTIFIED. ACCORDINGLY, HE DELETED THE ADDITION . 6.2 AGAIN THE FACTUAL FINDING GIVEN BY THE LEARNED CIT(A) REMAINED UNCONTROVERTED. THEREFORE, WE SEE NO REASON TO INTERFERE IN THE FINDING OF THE LEARNED CIT(A) . ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE ALSO. ITA NO. 185 /20 10 5 7. REMAINING I SSUE IS DELETING THE ADHOC DISALLOWANCE OF RS. 2,15,048/ - , WHICH WAS DISALLOWED BY THE AO ON THE GROUND THAT NO VOUCHERS WERE PRODUCED BEFORE HIM. IN THIS REGARD, THE EVIDENCES FURN ISHED BY THE ASSESSEE WERE SENT TO THE AO, WHO HA D NOT COMMENTED IN RESPECT OF EVIDENCE. T HE LEARNED CIT(A) FOUND THAT ALL THE EVIDENCES WERE PRODUCED, THEREFORE, AD HOC DISALLOWANCE OF LABOUR WAGES WERE NOT JUSTIFIED. ACCORDINGLY, HE DELETED THE SAME. 7.1 SINCE ALL THE DETAILS WERE MAINTAINED BY THE ASSESSEE AND THE LABOUR WAGES WERE VERIFIABLE, THEREFORE, WE ARE OF THE VIEW THAT LEARNED C IT(A) WAS CORRECT IN DELETING THE ADDITION ALSO. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE ALSO. 8 . RESULTANTLY , APPEAL OF THE DEPARTMENT I S DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF AP R .201 3 . 201 3 SD/ - SD/ - ( ) ( D.KARUNAKAR RAO ) ( ) ( R.K .GUPTA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 0 3/ 0 4 / 201 3 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI / NAGPUR . 4. / CIT 5. / DR, ITAT, MUMBAI / NAGPUR . 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI