Shri Bahadursinh Ghelubha Vala, JAMNAGAR V. The Income Tax Officer, Ward 2 (1), JAMNAGAR

ITA 21/RJT/2011

• Counselvise Citation: 2124914 RSA 2011
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-09-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 27-01-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CJ MANIAR
• Assessee Lawyers: J C RANPURA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA (JM) AND SHRI A. L. GEHL OT AM). ITA NO. 21/RJT/2011. (ASSESSMENT YEAR 2007-08) SHRI BAHADURSINH GHELUBHA VALA, VS. THE I.T.O., PROP. OF JAYDEEP TRANSPORT, WARD-2(1) NR. R.K. BUILDERS, SIKKA PATIA, JAMNAGAR. JAMNAGAR. PAN:ACAPV4935F... (APPELLANT) (RESPONDENT) REVENUE BY : SHRI C. J. MANIAR, D. R. ASSESSEE BY : SHRI J.C. RANPURA, C.A.. DATE OF HEARING : .22-11-2011. DATE OF PRONOUNCEMENT : 06-01-2012. O R D E R. PER A. L. GEHLOT (A.M.) : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE APPELLATE ORDER OF COMMISSIONER OF INCOME TAX (APPE ALS), JAMNAGAR, DATED 01- 12-2010 FOR ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED IN THIS APPEAR ARE REPRODUCED AS BELOW:- (1) THE GROUNDS OF APPEAL MENTIONED HEREUNDER ARE W ITHOUT PREJUDICE TO ONE ANOTHER. (2) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), JAMNAGAR [CIT(A)] ERRED IN FACTS AS ALSO IN LAW IN CONFIRMIN G ADDITION OF 50,000/- MADE ON ACCOUNT OF LOW HOUSE HOLD WITHDRA WALS. THE ADDITION MAY KINDLY BE DELETED. (3) THE LEARNED CIT(A) ERRED ON FACTS AS ALSO IN LA W IN RETAINING DISALLOWANCE OF 12,131/- MADE FROM VARIOUS EXPENSE S. THE DISALLOWANCE MAY KINGLY BE DELETED. ITA 21-RJT-2011. A.Y. 2007-08.. 2 (4) THE LEARNED AO ERRED ON FACTS AS ALSO IN LAW IN MAKING LUMP SUM DISALLOWANCE OF 2,00,000/- FROM TRANSPORTATION EXP ENSE. THE DISALLOWANCE IS TOTALLY UNJUSTIFIED ON FACTS AS ALS O IN LAW MAY KINDLY BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE FIRST G ROUND IS GENERAL IN NATURE. THE SECOND GROUND IS CONFIRMATION OF ADDITION OF RS .50,000/- ON ACCOUNT OF LOW HOUSEHOLD EXPENSES. DURING THE ASSESSMENT PROCEEDI NGS, THE AO NOTICED THAT THE ASSESSEE HAS SHOWN HOUSEHOLD EXPENSES ONLY RS.5 0,000/-. THE AO FOUND THAT THE HOUSEHOLD EXPENSE WAS VERY LAW. THE AO MAD E THE ADDITION OF RS.50,000/- ON AGREED BASIS AS PER ORDER- SHEET ENT RY DATED 16-09-2009. SIMILARLY, THE AO MADE ADDITION OF RS.24,263/- BEIN G 20% OF THE EXPENDITURE OUT OF MOTORCAR EXPENSES AND DEPRECIATION, TELEPHONE AN D MOBILE EXPENSES ON ACCOUNT OF PERSONAL USED ON AGREED BASIS VIDE ORDER -SHEET ENTRY DATED 16-09- 2009. THE AO ALSO MADE ADDITION OF RS.2,00,000/- O N AGREED BASIS ON ACCOUNT OF DISALLOWANCE OF TRANSPORTATION EXPENSE. BEFORE THE CIT(A), THE ASSESSEE RAISED FOLLOWING GROUNDS OF APPEAL:- (1) THE A.O. HAS ERRED ON FACTS AND IN LAW IN DETE RMINING TOTAL INCOME OF THE ASSESSEE OF RS.6,20,273/-. (2) THE A.O. HAS ERRED ON FACTS AND IN LAW IN DISAL LOWING RS24,263/- BEING 20%.OF RS.1,21,311/- AND ADDED TO THE TOTAL I NCOME CONSIDERING AS NON BUSINESS AND PERSONAL EXPENDITUR E. (3) THE A.O. HAS ERRED ON FACTS AND IN LAW IN ESTIM ATING THE HOUSE HOLD EXPENSES OF THE ASSESSEE OF RS.1,04,000/- AND MADE ADDITION IN RESPECT OF HOUSEHOLD EXPENSES IN THE TOTAL INCOME O F RS.50,000/-. 4. THE CIT(A) RESTRICTED THE DISALLOWANCE OUT OF T ELEPHONE AND OTHER EXPENSES FROM 20% TO 10%. THE LD. A.R. HAS NO MUCH ARGUMENT BEFORE US ON THIS ISSUE. THEREFORE, THE ORDER ON THE ISSUE DIRE CTING TO AO TO DISALLOW 10% OF SUCH EXPENDITURE INSTEAD OF 20% IS CONFIRMED. ITA 21-RJT-2011. A.Y. 2007-08.. 3 5. THE CIT(A) CONFIRMED RS.50,000/- ON ACCOUNT OF L OW HOUSEHOLD EXPENSES ON THE GROUND THAT THE ASSESSEE HAD AGREED BEFORE T HE AO FOR THAT ADDITION. HE FURTHER HELD THAT EVEN ON MERIT, THE ESTIMATE MADE BY AO IS REASONABLE. 6. THERE IS NO FINDING BY THE CIT(A) ON ADDITION O F RS.2,00,000/- MADE OUT OF TRANSPORT EXPENSES. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES, RECORD PERUSED. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPOR TATION OF CEMENT AND COAL ON CONTRACT AS WELL AS SUB-CONTRACT BASIS. THE ASSESSE E FILED RETURN OF INCOME DECLARING TOTAL INCOME OF RS.3,46,010/-. THE AO MAD E THE ADDITION OF RS.50,000/- ON ACCOUNT OF HOUSEHOLD EXPENSES, RS.24,263/- OUT O F MOTORCAR AND TELEPHONE EXPENSES AND RS.2,00,000/- OUT OF TRANSPORTATION EX PENSES ON AGREED BASIS. THE ASSESSEE CHALLENGED THESE ADDITIONS BEFORE THE CIT(A). THE CIT(A) INSPITE OF AWARING THE FACT THAT THE ASSESSEE HAS AGREED TO THE ADDITIONS BEFORE THE AO INSPITE THAT THE CIT(A) FOUND THAT DISALLOWANCE MAD E OUT OF TELEPHONE AND MOBILE EXPENSES, 20% WAS EXCESSIVE. THEREFORE, HE RESTRIC TED THE DISALLOWANCE TO THE EXTENT OF 10%. THE ADDITION OF RS.50,000/- ON ACCOU NT OF HOUSEHOLD HAS BEEN CONFIRMED BY THE CIT(A). THE CIT(A) DID NOT GIVE AN Y FINDING IN RESPECT OF ADDITION OF RS.2,00,000/-, WHEREAS THE ASSESSEE HAS REQUESTED BEFORE THE CIT(A) THAT THIS GROUND INCLUDES IN GROUND NO.1 RAI SED BEFORE THE CIT(A) STATING THAT THE AO ERRED IN DETERMINING THE TOTAL INCOME O F THE ASSESSEE AT RS.6,20,273/- WHICH INCLUDES THIS RS.2,00,000/-. T HE LD. A.R. DREW OUR ATTENTION ON PAGE-6 OF WRITTEN SUBMISSIONS WHICH ARE FILED BE FORE CIT(A) AND A COPY OF WHICH FILED BEFORE US IS PUT ON RECORD, AND SUBMITT ED THAT THOUGH NO SPECIFIC GROUND WAS TAKEN BEFORE CIT(A) FOR ADDITION OF RS.2 LAKH BUT IT WAS ARGUED BEFORE THE CIT(A). CONSIDERING FACTS, WE FIND THAT THIS ISSUE INCLUDE IN RS.6,20,273/- AND THE CIT(A) HAS NOT RAISE THIS ISS UE. THEREFORE, IT IS APPROPRIATE TO SEND BACK THIS ISSUE TO THE FILE OF CIT(A) TO VERIFY THE FACTS AND DECIDE THE ISSUE RELATED TO RS.2 LAKH IN ACCORDANCE WITH LAW AFTER PROVIDING OPPORTUNITY OF HEARING TO BOTH SIDES. ITA 21-RJT-2011. A.Y. 2007-08.. 4 8. AS REGARDS OUT OF TELEPHONE EXPENSE ETC.AS PER D ISCUSSION MADE IN PARA-7 WE CONFIRM THE ORDER OF CIT(A) IN SUSTAINING 10% O F SUCH EXPENDITURE. AS REGARD ADDITION OF RS.50,000/- ON ACCOUNT OF HOUSEH OLD EXPENSES, WE CONFIRM THE ORDER OF CIT(A) AS THE ASSESSEE HIMSELF AGREED BEFORE AO AND CONTRARY TO THAT, NO MATERIAL HAS BEEN FURNISHED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06-01-2012. SD/- SD/- ( T. K. SHARMA ), ( A. L. GEHLOT ), JUDICIAL MEMBER. ACCOUNTANT MEMBER. RAJKOT. DATED: 06-01-2012. NVA/ COPY TO:- 1.SHRI BAHADURSINH G. VALA, JAMNAGAR.. 2 THE ITO, WARD-2(1), JAMNAGAR. 3.THE C.I.T.(A)-II, RAJKOT. 4.THE C.I.T., RAJKOT. 5.THE D.R., ITAT, RAJKOT. TRUE COPY. BY ORDER, ASSTT. REGISTRAR, ITAT,RAJKOT.