Sri Ravinder Kumar, Bokaro V. ITO, Bokaro

ITA 239/RAN/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9634 (ITAT-RANCHI)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 25-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K MONSDAL J
• Keywords: Gift
• Section: 143(3); 234B; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH, RANCHI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 239 - 241 / RAN / 2016 ASSESSMENT YEARS :2007-08 TO 2009-10 SRI RAVINDRA KUMAR PROP. MAA GAYATRI DISTRIBUTOR, SADAR BAZAR, CHASE DIST.BOKARO-827013 [ PAN NO.AHMPK 6677 L ] V/S . INCOME TAX OFFICER, WARD-3(1), BOKARO /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI DEVESH PODDAR, ADVOCATE /BY REVENUE SHRI P.K.MONSDAL, JCIT-DR /DATE OF HEARING 07-01-2019 /DATE OF PRONOUNCEMENT 11-01-2019 / O R D E R PER BENCH:- THESE THREE ASSESSEES APPEALS FOR ASSESSMENT YEAR (S) 2007-08, 2008- 09 & 2009-10 ARISE AGAINST THE COMMISSIONER OF INC OME TAX (APPEALS)- HAZARIBAGS SEPARATE ORDERS; ALL DATED 23.06.2016, PASSED IN CASE NOS.31, 36, 37/HZB/2015-116 INVOLVING PROCEEDINGS U/S 263 R .W.S 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE(S) PERUSED. 2. WE COME TO FIRST COMMON ISSUE OF SEC.40A(3) DISA LLOWANCE IN FIRE CRACKERS PURCHASES IN CASH AMOUNTING TO RS.16,39,77 4/-, RS.27,91,348/- &10,50,000/- MADE BY THE ASSESSING OFFICER AFFIRMED IN THE CIT(A)S IDENTICAL ORDERS. LOWER AUTHORITIES CASE IS THAT ASSESSEE VI OLATED SEC.40A(3) IN PURCHASING FIRE CRACKERS THROUGH SUPPLIERS BY CASH PAYMENTS. IT EMERGES ITA NO.239-241/RAN/2016 A.YS 07- 08 TO 09-10 SH. RAVINDRA KUMAR VS. ITO WD-3(1) BOK ARO PAGE 2 DURING THE COURSE OF HEARING THAT THE SAID SUPPLIER S ARE FROM SIVAKASI, TAMIL NADU HAVING NO BANK ACCOUNTS IN JHARKHAND WHERE PAY MENTS HAVE ADMITTEDLY BEEN MADE. HON'BLE GUJARAT HIGH COURTS DECISION IN ANUPAM TELE SERVICES VS. ITO 366 ITR HOLD THAT RULE 6DD OF THEE INCOME T AX RULES PRESCRIBING CERTAIN SPECIFIED CIRCUMSTANCES FOR CASH PAYMENTS I S NOT SELF-EXHAUSTIVE. WE HOLD IN THESE PECULIAR FACTS THAT ASSESSEES PAYEES DID NOT HAVE BANK ACCOUNTS AT THE PLACE OF PAYMENT(S). ALL THIS FORME D VERY MUCH JUSTIFIABLE REASON FOR CASH PAYMENTS. WE THUS DELETE SEC. 40A(3 ) DISALLOWANCE HEREINABOVE IN THESE THREE ASSESSMENT YEAR(S). THE ASSESSEE SUCCEEDS IN ITS FIRST SUBSTANTIVE GROUND IN ASSESSMENT YEAR(S) 2007 -08 AND 2009-10 AND SOLE SUBSTANTIVE GROUND IN ASSESSMENT YEAR 2008-09. 3. WE STAY IN ASSESSMENT YEAR 2007-08 WITH THE REMA INING TWO GIFTS ISSUE OF RS.1.50 LAC AND RS.1.25 LAC ALLEGED TO HAVE BEEN RECEIVED FROM ASSESSEES BROTHER SHRI BIRENDRA KUMAR AND MATERNAL UNCLE SHRI DILIP PRASAD BARNWAL. IT TRANSPIRES DURING THE COURSE OF HEARING THAT THE LE ARNED LOWER AUTHORITIES AND PARTICULARLY THE ASSESSING OFFICER HAS MADE THE VER Y ADDITION(S) OF RS.1.50 LAC IN CASE ON THE TWIN DONOR SHRI BIRENDRA KUMAR IN AS SESSMENT OF IMPUGNED SAME YEAR ITSELF. IT THUS APPEARS TO HAVE A QUESTIO N WHEREIN THE VERY AMOUNT HAS BEEN ADDED IN CASE OF BOTH THE DONOR AS WELL AS THE DONEE. WE ACCORDINGLY DELETE THE IMPUGNED ADDITION(S) OF RS.1 .50 LAC SINCE THE ASSESSING OFFICER HAS HIMSELF PROVE THE IDENTITY, G ENUINENESS AND CREDITWORTHINESS OF THE SAID DONOR IN THESE GIVEN F ACTS. THE ASSESSEE SUCCEEDS IN HIS SECOND SUBSTANTIVE GROUND IN ASSESS MENT YEAR 2007-08 THEREFORE. 4. COMING TO LATTER GIFT INSTANCE OF RS.1.25 LAC RE CEIVED FROM THE MATERNAL UNCLE DONOR SHRI DILIP PRASAD BARNWAL, THIS IS NOT THE CASE OF LOWER AUTHORITIES THAT HE IS NOT RELATED TO THE ASSESSEE. THE SAID DO NOR HAS ALREADY EXPIRED. WE KEEP IN MIND ALL THESE PECULIAR FACTS INVOLVED TO R ESTRICT THE IMPUGNED GIFT ADDITION OF RS.1.25 LAC TO THE EXTENT OF RS.60,.000 /- ONLY. THE ASSESSEE GETS PART RELIEF TO THIS EXTENT. HIS FIRST APPEAL 239/RA N/2016 IS PARTLY ACCEPTED IN ABOVE TERMS. ITA NO.239-241/RAN/2016 A.YS 07- 08 TO 09-10 SH. RAVINDRA KUMAR VS. ITO WD-3(1) BOK ARO PAGE 3 5. COMING TO LAST ASSESSMENT YEAR 2009-10 LEARNED COUNSEL VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN MAKING SEC. 44AF AND C REDIT BALANCE ADDITION(S) OF RS.49,448/- AND RS.25 LAC; RESPECTIVELY. AFTER A RGUING FOR SOMETIME, LEARNED COUNSEL WISHES NOT TO PRESS THESE LATTER S UBSTANTIVE GROUNDS WITH A RIDER THAT SAME ARE NOT AS PRECEDENT IN ANY OTHER A SSESSMENT YEAR. LEARNED DEPARTMENTAL REPRESENTATIVE RAISED NO OBJECTION TO THE SAME. WE THEREFORE DECLINE THIS TWO LATER ISSUE IN LAST ASSESSMENT YEA R 2009-10 AS NOT PRESSED IN ABOVE TERMS. 6. IT IS LASTLY SUBMITTED AT THE ASSESSEES BEHEST THAT HON'BLE JURISDICTIONAL HIGH COURTS DECISION IN AJAY PRAKASH VERMA VS. ITO IN TA NO.38 OF 2010 (2013) (1) TMI 140 HAS MADE IT CLEAR THAT SEC. 234B INTEREST CANNOT BE CHARGED OVER AND ABOVE THAT BASED AN RETURN INCOME. WE DIRECT THE ASSESSING OFFICER TO FINALIZE NECESSARY COMPUTATION AS PER LAW STRICTLY IN TERMS WITH HON'BLE JURISDICTIONAL HIGH COURTS ABOVE STAT ED JUDGMENT (SUPRA). 8. THESE THREE ASSESSEES APPEALS ARE PARTLY ALLOWE D IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT 11/ 01/2019 SD/- SD/- ( ) ($% ) (DR. A.L. SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) RANCHI, *DKP SR.P.S &- 11 / 01 /2019 RANCHI / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI RAVINDRA KUMAR, PROP. MAA GAYATRI DIS TRIBUTOR, SADAR BAZAR CHAS DIST. BOKARO -827013 2. /REVENUE-INCOME TAX OFFICER, WARD-3(1), BOKARO 3. 2 4 / CONCERNED CIT RANCHI 4. 4- / CIT (A) RANCHI 5. 7 %%2, 2, / DR, ITAT, RANCHI 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR.PS, ITAT, RANCHI