Saanika Industries Pvt. Ltd., Surat V. The Dy.CIT, Circle-2(1)(2), Surat

ITA 208/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1974 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 29-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Onus to prove

Judgement Text

SAANIKA INDUSTRIES PVT. LTD. V. DCIT2(1)(2) SURAT /I.T.A. NO.208/AHD/2016/A.Y.12-13 PAGE 1 OF 4 , , INCOM TAX APPELLATE TRIBUNAL-SURAT-BENCH-SURAT . . , . . , BEFORE C .M. GARG, JUDICIAL MEMBER AND O. P. MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.208/AHD/2016/SRT /ASSESSMENT YEAR:2012-13 SAANIKA INDUSTRIES PVT. LTD., BLOCK NO. 1053, VILLAGE TRADEKESHWAR, NEAR HARIYAL BUS STOP, TAL- MANDVI, DISTRICT-SURAT 394230 PAN: AAJCS 6782P V. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE -2(1)(2) SURAT APPELLANT /RESPONDENT ASSESSEE BY SHRI HIREN R. VEPARI, CA REVENUE BY SHRI VINOD KUMAR, SR. D.R. DATE OF HEARING 29.10.2018 DATE OF PRONOUNCEMENT 01.11.2018 /ORDER PER O. P. MEENA, AM 1. THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT (IN SHORT CIT(A)) DATED 07.12.2015 FOR THE ASSESSMENT YEAR 2012-13. 2. GROUND NO. I- IS AGAINST THE CONFIRMATION OF ADDITION OF RS. 10 LAKHS FROM M/S. SADASUKH DEALERS PVT. LTD. , WHEN THE AMOUNT IS RECEIVED BY ACCOUNT PAYEE CHEQUES AND CONFIRMATION, BANK STATEMENT SAANIKA INDUSTRIES PVT. LTD. V. DCIT2(1)(2) SURAT /I.T.A. NO.208/AHD/2016/A.Y.12-13 PAGE 2 OF 4 ACKNOWLEDGEMENT ARE FILED AND THE CIT (A) HAS APPLIED THE LAW WHICH CAME INTO EFFECT FROM A.Y. 2013-14 AND NOT FOR THE ASSESSMENT YEAR 2012-13. 3. AT THE OUTSET, THE LEARNED COUNSEL SUBMITTED THAT THE AO HAS MADE ADDITION OF RS. 10 LAKH FOR THE AMOUNT RECEIVED FROM SADASUKH DEALERS PVT. LTD. BY ACCOUNT PAYEE CHEQUES OF WHICH CONFIRMATION COPY OF ACCOUNT, ACKNOWLEDGEMENT OF RETURN OF INCOME WERE FILED. HOWEVER, CIT (A) HAS CONFIRMED THE ADDITION ON THE BASIS THAT IN A.Y. 2011-12, THE ASSESSEE HAS RECEIVED SHARE PREMIUM AND SHARE CAPITAL OF RS. 20 LAKH WHICH WERE ADDED BY THE AO AND SAME WERE CONFIRMED BY THE CIT (A). HOWEVER, THE ASSESSEE WENT INTO APPEAL BEFORE TRIBUNAL, WHO VIDE ORDER DATED 02.03.2017 IN I.T.A.NO. 207/AHD/2016 A.Y. 11-12, [PB-29-79, RELEVANT PAGE 77] VIDE PARA NO. 9&10 HAS SET-ASIDE THE ISSUE TO THE FILE OF THE AO. 4. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE TRIBUNAL VIDE ORDER DTD. 02.03.2017 IN THE CASE OF THE ASSESSEE, IN PARA NO. 9 OBSERVED THAT THE COMPANIES HAVE FILED TAX RETURN, BANK STATEMENT AND CONFIRMATION OF ACCOUNTS AND THERE IS NO NEGATIVE REPORT OF THE INVESTIGATION WING AND THERE IS NO REFERENCE IN THE STATEMENT OF SHRI MANOHAR NANGALIA. HOWEVER, THE REVENUE HAS MADE SAANIKA INDUSTRIES PVT. LTD. V. DCIT2(1)(2) SURAT /I.T.A. NO.208/AHD/2016/A.Y.12-13 PAGE 3 OF 4 A GUESSWORK ON THE BASIS OF FINANCIAL DATA WITHOUT HAVING CONCRETE EVIDENCE. DUTY WAS HEAVILY CAST ON THE REVENUE IN SUCH TYPE OF CASES TO PROVE BURDEN OF PROOF, WHICH HAS BEEN SHIFTED BY THE ASSESSEE ON REVENUE. HOWEVER, IT WAS OBSERVED THAT THE ISSUE NEEDS TO BE REMITTED BACK TO THE FILE OF THE AO FOR MAKING FURTHER, INVESTIGATION WITH THE HELP OF INVESTIGATION WING. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, SINCE THE ISSUE OF RECEIPT OF RS. 10 LAKH DURING THE YEAR UNDER CONSIDERATION IS ALSO LINKED WITH ADDITION TO RECEIPTS OF RS. 20 LAKHS DURING A.Y. 2011-12, FROM SAME PARTY, WHICH STANDS SET-ASIDE THE AO. HENCE, ON SAME LINE, THIS ISSUE NEEDS TO BE SENT BACK TO THE FILE OF THE AO SO THAT UNIFORM APPROACH CAN BE TAKEN FOR BOTH ASSESSMENT YEAR AFTER VERIFICATION OF RECORDS AND INVESTIGATION AS SUGGESTED BY THE TRIBUNAL IN A.Y. 2011-12 IN THE CASE OF THE ASSESSEE. IN VIEW OF THIS MATTER, THIS ISSUE IS SET-ASIDE TO THE FILE OF THE AO TO CONSIDER THE EXPLANATION OF THE ASSESSEE AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD AND IN THE LINE OF INVESTIGATION CARRIED ON FOR THE ASSESSMENT YEAR 2011-12. 6. GROUND NO. II: RELATED TO PF AND ESIC PAYMENT, WHICH HAS NOT BEEN PRESSED BEFORE US HENCE, SAME IS DISMISSED AS NOT PRESSED. 7. GROUND NO. III: RELATES TO DISALLOWANCE OF RS. 77,662 BEING 20% OF PRINTING AND STATIONERY EXPENSES. SAANIKA INDUSTRIES PVT. LTD. V. DCIT2(1)(2) SURAT /I.T.A. NO.208/AHD/2016/A.Y.12-13 PAGE 4 OF 4 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE BOOKS OF ACCOUNTS OF THE ASSESSEE ARE AUDITED AND EXPENDITURE CLAIMED IS AT RS. 3,88,314 WHICH IS IN COMMENSURATE WITH TURNOVER OF THE ASSESSEE. THEREFORE, DISALLOWANCE @20% OF PRINTING AND STATIONERY EXPENSES IS WITHOUT ANY BASIS AS SUCH EXPENSES DOES NOT CONTAIN PERSONAL ELEMENT AND MOSTLY REQUIRED TO BE INCURRED IN CASH. THEREFORE, THE DISALLOWANCE SO MADE BY THE AO ARE DELETED. THIS GROUND IS THEREFORE, ALLOWED. 9. GROUND NO. IV: REGARDING CHARGING OF INTEREST UNDER SECTION 234A, 234B, 234C AND 234D WHICH IS MANDATORY HOWEVER, ARE CONSEQUENTIAL RELIEF IS ALLOWABLE, WE HOLD SO. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED AND PARTLY ALLOWED SET-ASIDE FOR STATISTICAL PURPOSES. 11. PRONOUNCED IN THE OPEN COURT ON 01.11.2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) SURAT DATED: 1 ST NOVEMBER 2018.OPM / COPY OF THE ORDER IS FORWARDED TO : 1. 2. 3. ( ), 4. PR. CIT 5. , , / 6. . BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT