SHRI BALVEER SINGH VASU, V. THE ITO 5(2),

ITA 205/IND/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 2428 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-12-2009
• Assessment Year: misc
• Appeal Filed On: 22-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARANSR
• Assessee Lawyers: H P VERMA
• Keywords: Corroborative evidences
• Section: 5(2)

Judgement Text

IN THE INCOME TAX APPELATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH AND SHRI V.K. GUPTA, AM ITA NO. 205/IND/08 A.Y. 2004-05 SHRI BALVEER SINGH VASU INDORE PAN ABRPU 8850B APPELLANT VS INCOMETAX OFFICER WARD 5(2) INDORE RESPONDENT APPELLANT BY S/SHRI H.P. VERMA AND SHRI ASHISH GOYAL, RESPONDENT BY SMT. APARNA KARAN,SR. DR O R D E R PER JOGINDER SINGH, JM THIS APPEAL IS BY THE ASSESSEE CHALLENGING THE IMP UGNED ORDER DATED 21.2.2008 PASSED BY THE LEARNED CIT(A) WHEREI N THE FIRST GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE A UTHORITY ERRED IN SUSTAINING THE DISALLOWANCE OF RS.1,28,898/- TOWARD S SHORTAGE OF 5158 LITRES OF DIESEL IN ITS PETROL PUMP DUE TO RAINY WA TER ENTERED IN THE DIESEL TANK. THE CONTENTION RAISED IS THAT THE DIS ALLOWANCE OF THE - 2 - IMPUGNED AMOUNT IS QUITE UNJUSTIFIED AS ENTERING OF RAINY WATER INTO THE STORAGE TANK WAS BEYOND THE CONTROL OF THE ASSE SSEE WHICH RESULTED INTO SHORTAGE OF 5158 LITRES OF DIESEL. IT WAS PLE ADED THAT SUCH DISALLOWANCE MAY BE DELETED. ON THE OTHER HAND, TH E LEARNED SENIOR DR STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDI NG THAT PROOF OF ENTERING OF RAINY WATER AND OTHER NECESSARY DETAILS WERE NEVER FURNISHED BY THE ASSESSEE AT ANY STAGE, THEREFORE, THE IMPUGNED DISALLOWANCE WAS DEFENDED. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BRIEF FACTS ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PETROL PUMP ALONG WITH T OLL KANTA. DURING THE ASSESSMENT PROCEEDINGS IT WAS FOUND BY THE LEAR NED AO THAT THE ASSESSEE DECLARED SHORTAGE OF DIESEL TOWARDS HIGHER SIDE AGAINST THE STANDARD FIXED BY THE OIL COMPANIES, THEREFORE, HE DISALLOWED THE CLAIMED SHORTAGE BY MAKING THE ADDITION OF RS.1,28, 898/-. THE ASSESSEE ON ASKING BY THE ASSESSING OFFICER COULD N OT FURNISH ANY REASON FOR SUCH SHORTAGE BUT MERELY CLAIMED THAT SU CH SHORTAGE IS - 3 - NORMAL. THE ASSESSEE ALSO PREFERRED SUBMISSIONS VI DE LETTER DATED 14.11.2006 WHEREIN IT WAS CLAIMED THAT RAINY WATER ENTERED INSIDE THE TANK AND DURING VACATING THE SAME THE DIESEL WAS WA STED. IDENTICAL PLEA WAS RAISED BEFORE THE CIT(A). HOWEVER, WE HAV E FOUND THAT NO PROOF OF ENTERING OF RAIN WATER WAS FURNISHED BY TH E ASSESSEE AT ANY STAGE. THE ASSESSEE NEVER FURNISHED THE PROOF THAT THERE WAS WASTAGE DUE TO THE AFORESAID REASON WHILE CLEANING THE STOR AGE TANK. CONSEQUENTLY, WE HAVE NOT FOUND ANY INFIRMITY IN TH E STAND OF THE LEARNED CIT(A), THEREFORE, THIS GROUND OF THE ASSES SEE IS HAVING NO MERIT. IT IS DISMISSED. 3. THE NEXT GROUND RAISED IS THAT THE LEARNED FIRST APPELLATE AUTHORITY ERRED IN SUSTAINING THE DISALLOWANCE OF R S. 18,100/- TOWARDS REPAIR AND MAINTENANCE OF TOLL KANTA. THE CONTENTI ON RAISED ON BEHALF OF THE ASSESSEE IS THAT EXPENSES OF RS.32,500/- WER E INCURRED ON REPAIR AND MAINTENANCE OF TOLL KANTA OUT OF WHICH THE AO W RONGLY DISALLOWED THE AMOUNT OF RS. 18,100/- BY ALLEGING T HAT SUPPORTING EVIDENCE WAS NOT FURNISHED BY THE ASSESSEE FOR THE IMPUGNED AMOUNT. - 4 - IT WAS POINTED OUT THAT THE EXPENSES WERE DULY DEBI TED IN THE BOOKS OF ACCOUNTS AND REGULAR MAINTENANCE/REPAIR IS REQUIRED TO KEEP THE DHARAMKANTA/TOLL KANTA IN THE REQUIRED RUNNING/OPER ATIVE POSITION. THE LEARNED AO DISALLOWED THE IMPUGNED AMOUNT ON T HE GROUND THAT THE ASSESSEE COULD NOT FURNISH NECESSARY DETAILS FO R PURCHASE OF 6MM METAL, CEMENT, GITTI, RETI AND WAGES PAID TO THE ME SON. ON APPEAL, THE STAND OF THE LEARNED AO WAS AFFIRMED. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PERUSAL OF RECORD, WE HAVE FOUND THAT FROM THE ASSESSMENT STAGE ITSELF TH E ASSESSEE HAS CLAIMED THAT THE AMOUNT OF RS.3600/- AND RS. 4500/ - WERE PAID FOR GITTI FOR REPAIRING THE PLATE FORM TO PREVENT LOGGI NG OF WATER DURING RAINY SEASON AND RS. 5200/- WERE PAID FOR CEMENT, R ETI AND WAGES PAID FOR SUCH REPAIRS. RS. 4800/- WERE CLAIMED TO BE PA ID FOR FILLING THE HOLES ON THE FLOOR. FROM THE BEGINNING ITSELF, THE ASSESSEE HAS BEEN CLAIMING THAT THE RELEVANT VOUCHERS COULD NOT BE TR ACED DUE TO NEGLIGENCE OF THE ACCOUNTANT. IT IS SEEN THAT THOU GH THE ASSESSEE HAS NOT PRODUCED THE NECESSARY DETAILS, STILL THERE IS NO FINDING IN THE - 5 - ASSESSMENT ORDER/IMPUGNED ORDER THAT THESE EXPENSES WERE NOT INCURRED BY THE ASSESSEE EVEN NO ATTEMPT WAS MADE B Y THE AO TO VERIFY THE CLAIM OF THE ASSESSEE WHETHER THESE EXPE NSES WERE ACTUALLY INCURRED OR NOT BY GETTING FACTUAL REPORT BY SENDIN G THE INSPECTOR ON THE SITE/DHARAMKANTA. EVEN OTHERWISE, KEEPING IN V IEW THE SMALLNESS OF THE EXPENSES AND ALSO TO PUT AN END TO THE LITIG ATION, THIS GROUND OF THE ASSESSEE IS ALLOWED. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 15 TH DECEMBER, 2009. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER 15 TH DECEMBER, 2009 COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE *DBN/-