Integrated Services, Baroda V. The Income tax Officer,Ward-2(3), Baroda

ITA 2269/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85803 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-03-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Section: 133(6)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ./ ITA NO.2269/AHD/2011 / ASSTT. YEAR: 2007-08 INTEGRATED SERVICES 7, ABHAR SOCIETY OPP: S.R. PETROL PUMP NIZAMPURA, VADODARA. PAN : AABFI 5589 D VS ITO, WARD-2(3) BARODA. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE(S) BY : SHRI SURENDRA MODIANI REVENUE BY : SHRI M.K. SINGH, SR.DR / DATE OF HEARING : 04/03/2015 / DATE OF PRONOUNCEMENT: 13/03/2015 $%/ O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER: THIS AN APPEAL FILED BY THE ASSESSEE AGAINST ORDER OF THE CIT(A)-II, BARODA DATED 4.2.2011 FOR ASSTT.YEAR 2007-08. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE ASSESSEE IN THIS APPEAL READS AS UNDER: 2. THE LD.CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.4,22,577/- IN RESPECT OF CREDIT BALANCE OF OM EN GINEERS, A SUPPLIER OF MATERIALS ON THE GROUND THAT THE SAID S UPPLIER DID NOT RESPOND TO COMMUNICATION FROM AO. 3. APPEAL FILED BY THE ASSESSEE IS BARRED BY LIMITA TION BY 107 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR DELAY IN ITA NO.2269/AHD/2011 2 FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE SAID AFFIDAVIT, IT IS STATED THAT THE ORDER OF THE CIT(A) WAS RECEIVED ON 25.3.2 011. THE SAID ORDER WAS SENT TO HIS TAX CONSULTANT, MR.JAYATILAL THAKKA R ON 14.4.2001 FOR FILING APPEAL BEFORE THE TRIBUNAL. SINCE THE SAID CONSULTANT WAS NOT PRACTICING BEFORE THE TRIBUNAL, HE ENGAGED ANOTHER CHARTERED ACCOUNTANT TO PREPARE THE APPEAL FOR FILING BEFORE THE TRIBUNAL. THE SAID PAPERS WERE RECEIVED ONLY ON 18.8.2001, AND THEREFO RE, THERE WAS A DELAY IN FILING OF THE APPEAL. 4. DR HAS NO OBJECTION IN CONDONING THE DELAY IN FI LING OF APPEAL BY THE ASSESSEE. WE, THEREFORE, CONDONE THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL BY THE ASSESSEE AND ADMIT THE A PPEAL FOR HEARING. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CO NSIDERATION, THE ASSESSEE HAS SHOWN RS.4,22,577/- IN THE NAME OF OM ENGINEERS AS OUTSTANDING AND PAYABLE IN ITS BALANCE SHEET AS ON 31.3.2007. THE AO ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT CALLI NG FOR DETAILS FROM THE CREDITOR FOR THE TRANSACTIONS MADE WITH THE ASSESSE E AT THE ADDRESS GIVEN BY THE ASSESSEE. THE AO STATED IN THE ORDER THAT THE SAID NOTICE WAS DULY SERVED UPON THE CREDITOR BY SPEED POST. T HE ASSESSEE WAS REQUIRED TO FILE CONFIRMATION FROM THE CREDITOR. S INCE THE ASSESSEE COULD NOT FILE SAID CONFIRMATION TO PROVE GENUINENESS AND CREDIT-WORTHINESS OF THE TRANSACTION, THE AO MADE ADDITION FOR OUTSTANDI NG AMOUNT OF RS.4,22,577/- PAYABLE TO OM ENGINEERS. 6. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF TH E AO ON THE GROUND THAT THE ASSESSEE HAS NOT DISCHARGED THE ONU S TO PROVE THE GENUINENESS OF THE CREDIT APPEARING IN ITS BOOKS OF ACCOUNTS. 7. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE , IN OUR CONSIDERED OPINION, ON THE BASIS OF THIS ALONE, IT CANNOT BE SAID THAT THE ITA NO.2269/AHD/2011 3 CREDITOR WAS NOT GENUINE, WHEN THE GENUINENESS OF T HE RELEVANT PURCHASES WAS NOT IN DOUBT. HOWEVER, WHEN THE BENC H ASKED THE AR OF THE ASSESSEE THAT WHEN THE PAYMENT WAS MADE TO THE CREDITOR AND HOW THE PAYMENT WAS MADE, HE REPLIED THAT THE RELEVANT DETAILS ARE NOT IN HIS READY POSSESSION, AND THE MATTER SHOULD BE REST ORED TO THE FILE OF THE AO FOR PROPER VERIFICATION. WE, THEREFORE, SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND REMIT THE MATTER BACK TO THE FILE OF THE AO TO RE-ADJUDICATE THE ISSUE IN THE LIGHT OF THE DISCUSS ION MADE HEREINABOVE AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THIS GROUND OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 13 TH MARCH, 2015 AT AHMEDABAD. SD/- SD/- ( SHAILENDRA KUMAR YADAV ) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER