Arup Bhowmick, Kolkata V. ITO, WD-18(4), KOLKATA, Kolkata

ITA 197/KOL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4845 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 10-02-2016
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: ANJAN KUMAR BANDYOPADHYAY
• Keywords: Opportunity of being heard; Additional evidence; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

I.T.A. NOS. 197, 198 & 199/KOL./2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NOS. 197, 198 & 199/KOL/2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 ARUP BHOWMICK,..................................... .............................APPELLANT 32B, PATHAK PARA ROAD, P.O. PARNASREE, BEHALA, KOLKATA-700 060 [PAN : AECPB 6277 Q] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-18(4), KOLKATA APPEARANCES BY: SHRI ANJAN KUMAR BANDYOPADHYAY, FCA, FOR THE ASSESS EE SHRI K.K. TRIPATHI, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : APRIL 29, 2016 DATE OF PRONOUNCING THE ORDER : MAY 11, 2016 O R D E R THESE THREE APPEALS FILED BY THE ASSESSEE AGAINST T HREE SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLKATA, ALL DATED 04.12.2015 INVOLVE COMMON ISSUES AND THE SAME, THEREFORE, HAVE BEEN HEARD TOGETHER AND ARE BEING D ISPOSED OF BY A SINGLE CONSOLIDATED ORDER. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS AN EMPLOYEE OF M/S. ONGC LIMITED. THE RETURNS OF INCOM E FILED FOR ALL THE THREE YEARS UNDER CONSIDERATION WERE INITIALLY PROC ESSED BY THE ASSESSING OFFICER UNDER SECTION 143(1). THEREAFTER A SURVEY W AS CARRIED OUT BY THE TDS WING OF THE DEPARTMENT AT THE PREMISES OF M/S. ONGC LIMITED SITUATED IN THE STATE OF GUJARAT. AS FOUND DURING T HE COURSE OF SURVEY, ONGC HAD MADE PAYMENTS TO ITS EMPLOYEES ON ACCOUNT OF CONVEYANCE, MAINTENANCE AND REPAIR EXPENSES, ADVANCE SALARY, ME DICAL ALLOWANCE, UNIFORM ALLOWANCE, AIR AND RAILWAY TRAVEL AND GOLD MEDAL DURING THE I.T.A. NOS. 197, 198 & 199/KOL./2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 PAGE 2 OF 5 YEARS UNDER CONSIDERATION, BUT THE SAID AMOUNTS WER E NOT INCLUDED IN THE INCOME OF THE EMPLOYEES FOR THE PURPOSE OF DEDUCTIO N OF TAX AT SOURCE. IT WAS ALSO FOUND THAT THE SAID AMOUNTS WERE NOT INCLU DED IN THEIR INCOMES DECLARED BY THE EMPLOYEES OF M/S. ONGC LIMITED INCL UDING THE ASSESSEE. THE ASSESSING OFFICER, THEREFORE, REOPENED THE ASSE SSMENTS OF THE ASSESSEE FOR ALL THE THREE YEARS UNDER CONSIDERATIO N AND ISSUED NOTICES UNDER SECTION 148 AFTER RECORDING THE REASONS. DURI NG THE COURSE OF REASSESSMENT PROCEEDINGS, IT WAS CLAIMED BY THE ASS ESSEE THAT THE AMOUNTS PAID ON ACCOUNT OF CONVEYANCE, MAINTENANCE AND REPAIR EXPENSES, UNIFORM EXPENSES AND GOLD MEDAL HAVING BE EN ALREADY SUBJECTED TO FRINGE BENEFIT TAX (FBT), THE SAME WAS NOT LIABLE TO BE INCLUDED IN HIS SALARIED INCOME. HOWEVER, IN THE AB SENCE OF ANY EVIDENCE FILED BY THE ASSESSEE TO SHOW THE PAYMENT OF FBT ON THESE AMOUNTS, THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM OF THE A SSESSEE. SIMILARLY, THE CLAIM OF THE ASSESSEE AS REGARDS EXEMPTION IN RESPE CT OF OTHER AMOUNTS BEING RECEIVED TOWARDS REIMBURSEMENT OF ACTUAL EXPE NDITURE INCURRED IN THE PERFORMANCE OF DUTIES WAS NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER IN THE ABSENCE OF SUPPORTING DOCUMENTARY EV IDENCE. ACCORDINGLY, ALL THESE AMOUNTS WERE ADDED BY HIM TO THE TOTAL IN COME OF THE ASSESSEE IN THE ASSESSMENTS MADE FOR ALL THE THREE YEARS UND ER CONSIDERATION UNDER SECTION 143(3) READ WITH SECTION 147 VIDE ORD ERS DATED 30.12.2011. ON APPEAL, THE LD. CIT(APPEALS) CONFIRMED ALL THE A DDITIONS MADE BY THE ASSESSING OFFICER FOR THE SAME REASONS AS GIVEN BY THE ASSESSING OFFICER. AGGRIEVED BY THE ORDERS OF THE LD. CIT(APPEALS), TH E ASSESSEE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE ADDITIONS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) TO THE TOTAL INCOME OF THE ASSESSEE FOR ALL THE THREE YEARS UNDER CONSIDERATION ARE AS UNDER:- I.T.A. NOS. 197, 198 & 199/KOL./2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 PAGE 3 OF 5 SL. NO. NATURE OF DISALLOWANCE ASSESSMENT YEARS 2006 - 2007 2007 - 2008 2008 - 2009 (A) ON ACCOUNT OF CONVEYANCE, MAINTENANCE AND REPAIR EXPENSES (CMRE) 11, 790 10,604 9,881 (B) ON ACCOUNT OF ADVANCE SALARY 15,000 9,708 15,000 (C) ON ACCOUNT OF MEDICAL ALLOWANCE 15,000 9,708 15,000 (D) ON ACCOUNT OF UNIFORM ALLOWANCE 9,727 15,792 10,300 (E) ON ACCOUNT OF REIMBURSEMENT OF EXPENSES FOR JOURNEY BY AIR AND RAILWAY FROM KOLKATA TO ANKLESHWAR TO ATTEND DUTY 68,905 1,09,590 75,409 (F) ON ACCOUNT OF PURCHASE OF RAILWAY TICKETS 13,700 - - (G) ON ACCOUNT OF GOLD MEDAL GIVEN BY THE EMPLOYER - 14,265 - 4. AT THE TIME OF HEARING BEFORE ME, THE LD. COUNSE L FOR THE ASSESSEE HAS FILED A CONFIRMATION LETTER DATED 10.02.2016 IS SUED BY M/S. ONGC LIMITED AS ADDITIONAL EVIDENCE CONFIRMING THE PAYME NT OF FBT IN RESPECT OF UNIFORM ALLOWANCE, CONVEYANCE, MAINTENANCE AND R EPAIR EXPENSES (CMRE) AND GOLD COIN. SINCE THE SAID CONFIRMATION L ETTER ISSUED BY M/S. ONGC LIMITED ON 10.02.2016 WAS NOT AVAILABLE TO THE ASSESSEE FOR FILING THE SAME AS EVIDENCE BEFORE THE ASSESSING OFFICER A S WELL AS BEFORE THE LD. CIT(APPEALS) AND THE SAME IS RELEVANT TO DECIDE THE ISSUES RELEVANT TO TAXABILITY OF UNIFORM ALLOWANCE, CMRE, I HAVE ADMIT TED THE SAME. THE LD. D.R. HAS ALSO NOT RAISED ANY OBJECTION FOR ADMISSIO N OF THE SAME AS ADDITIONAL EVIDENCE. HE, HOWEVER, HAS CONTENDED THA T THE ASSESSING I.T.A. NOS. 197, 198 & 199/KOL./2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 PAGE 4 OF 5 OFFICER MAY BE GIVEN AN OPPORTUNITY TO VERIFY THE S AID ADDITIONAL EVIDENCE AND DECIDE THE RELEVANT ISSUES IN THE LIGHT OF THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.- ONGC [2 29 TAXMAN 415] AS WELL AS THE OTHER JUDICIAL PRONOUNCEMENTS CITED BY THE LD. COUNSEL FOR THE ASSESSEE. SINCE THE LD. COUNSEL FOR THE ASSESSEE HA S NO OBJECTION IN THIS REGARD, I RESTORE THESE ISSUES TO THE FILE OF THE A SSESSING OFFICER FOR DECIDING THE SAME AFRESH IN THE LIGHT OF THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE. 5. AS REGARDS THE OTHER ADDITIONS MADE BY THE ASSES SING OFFICER, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE NATURE OF THE RELEVANT RECEIPTS HAS NOT BEEN RIGHTLY APPRECIATED EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(APPEALS). HE HAS SUBMITTED THAT T HE ASSESSEE HAS NOT RECEIVED ANY ADVANCE SALARY AND EVEN THE OTHER AMOU NTS WERE RECEIVED BY HIM ON ACCOUNT OF REIMBURSEMENT OF EXPENDITURE ACTU ALLY INCURRED IN THE PERFORMANCE OF DUTIES. HE HAS SUBMITTED THAT THE AS SESSEE IS IN A POSITION TO ESTABLISH HIS CASE ON THESE ISSUES AND URGED THA T ONE MORE OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO DO SO BY SENDING TH E MATTER BACK TO THE ASSESSING OFFICER. SINCE THE LD. D.R. HAS NOT RAISE D ANY OBJECTION IN THIS REGARD, I RESTORE THESE ISSUES ALSO TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER GIVING THE ASSESSEE PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 11, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 11 TH DAY OF MAY, 2016 COPIES TO : (1) SHRI ARUP BHOWMICK, 32B, PATHAK PARA ROAD, P.O. PARNASREE, BEHALA, KOLKATA-700 060 I.T.A. NOS. 197, 198 & 199/KOL./2016 ASSESSMENT YEARS: 2006-2007, 2007-2008 & 2008-2009 PAGE 5 OF 5 (2) INCOME TAX OFFICER, WARD-18(4), KOLKATA (3) COMMISSIONER OF INCOME TAX (APPEALS)-16, KOLK ATA; (4) COMMISSIONER OF INCOME TAX- , KOLKATA; (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.