I.T.O., Ward-1(4), Aligarh V. Sh. Devendra Nath Dewedi, Aligarh

ITA 253/AGR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76622 (ITAT-AGRA)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-06-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 19-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.253/AGRA/ 2013 ASSESSMENT YEAR: 2008-09 INCOME TAX OFFICER (A.O.), VS. SHRI DEVENDRA NATH DIWEDI, WARD-1(4), ALIGARH. B-81, LUXMI BAI MARG, MARRIS ROAD, ALIGARH. (PAN ABZPD 1201 A). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.D. SH ARMA, JR. D.R. . RESPONDENT BY : NONE DATE OF HEARING : 25.06.2014 DATE OF PRONOUNCEMENT : 27.06.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS C HALLENGED CORRECTNESS OF LEARNED CIT(A)S ORDER DATED 10 TH APRIL, 2013, IN THE MATTER OF PENALTY UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961 FOR T HE ASSESSMENT YEAR 2008-09. 2. GRIEVANCES RAISED BY THE ASSESSING OFFICER ARE A S FOLLOWS :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.1019360/- MADE BY THE AO OF THE RECE IPTS REFLECTED IN FORM NO.26AS. 2. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE AS SESSEE FAILED TO GET ITS FORM NO.26AS RECTIFIED FROM THE PAYER COMPA NY, HENCE THE ADDITION MADE BY THE AO WAS JUSTIFIED. ITA NO.253/AGRA/2013 A.Y. 2008-09 2 3. THAT THE CIT(A) HAS ERRED IN DELETING THE ADDITI ON OF RS.32,360/- FOR UNDERSTATING THE INTEREST INCOME 4. THAT LEARNED CIT(A), MUZAFFARNAGAR APPEAL ORDER DATED 10.04.2013 MAY BE QUASHED AND THAT OF THE AO MAY BE RESTORED. 5. THAT THE APPELLANT CRAVES TO AMEND, ALTER, ADD O R MODIFY ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE DEPARTMENTAL APPEAL. 3. THE ISSUE IN APPEAL LIES IN A VERY NARROW COMPAS S OF MATERIAL FACTS. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT WHILE AS PER 26AS, THE ASSESSEE WAS IN RECEIPT OF A MOUNT OF RS.10,19,360/- FROM DISH NET WIRELESS LIMITED, THE ASSESSEE HAS CONTENT ED THAT THE ABOVE PAYMENT DOES NOT PERTAIN TO THE ASSESSEE AND HAS BEEN WRONG LY CREDITED TO HIS ACCOUNT. BRUSHING ASIDE THE EXPLANATION OF THE ASSESSEE AND TERMING THE SAME SIMPLY A PRESUMPTION OF THE ASSESSEE WHICH HAS NO FORCE, TH E ASSESSING OFFICER PROCEEDED TO TREAT RS.10,19,360/- AS UNDISCLOSED RENT RECEIPT OF THE ASSESSEE. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CI T(A) WHO DELETED THE ADDITION BY OBSERVING AS FOLLOWS : THE FACTS OF THE CASE AS WELL AS SUBMISSIONS MADE BY THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. IT IS OB SERVED THAT THE AO HAD MADE ADDITION OF RS.10,19,360/- BEING RENT RECE IVED FROM M/S DISHNET WIRELESS SERVICES LTD. AS PER FORM 26AS AS AGAINST RS.1,43,562/- SHOWN BY THE APPELLANT. ON THE OTHER HAND IT HAS BEEN CONTENDED THAT THE AMOUNT OF RS.10,19,360/- WAS NOT RECEIVED FROM THE AFORESAID COMPANY. THE APPELLANT HAS FURNISHED AN AFFIDAVIT TO SUCH EFFECT IN SUPPORT OF HIS CLAIM. ITA NO.253/AGRA/2013 A.Y. 2008-09 3 IT IS OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT FURNISHED COMPLETE POSTAL ADDRESS OF THE DEDUCTOR COMPANY. HOWEVER, THE AO DID NOT MAKE ANY EFFORT T O SEEK INFORMATION U/S 133(6) OF THE ACT. IT IS GATHERED THAT DURING AY 2009- 10 THE AFORESAID COMPANY HAD SHOWN WRONG AMOUNT CRE DITED TO THE ACCOUNT OF THE APPELLANT WHICH WAS SUBSEQUENTLY REC TIFIED BY THE AFORESAID COMPANY. THUS IN VIEW OF SUCH FACTS THE ONUS SHIFTED ON TO THE AO TO PROVE THE CONTRARY. BUT THE ONUS HAS NOT BEEN DISCHARGED BY THE AO. ON THE OTHER HAND THE APPELLANT HAS FUR NISHED AFFIDAVIT TO THE EFFECT THAT THE AMOUNT OF RS.10,19,360/- WAS NO T RECEIVED BY HIM FROM THE AFORESAID COMPANY. IT IS PERTINENT TO MEN TION HERE THAT THE AO WAS HIMSELF DOUBTFUL ABOUT THE RECEIPT AT RS.10, 19,360/- VIZ. ON ONE HAND THE AO ADDED THE AMOUNT OF RS.10,19,360/- IN THE HANDS OF THE APPELLANT ON THE BASIS OF FORM 26AS AND ON THE OTHER HAND HAS NOT ALLOWED TDS AT RS.2,30,990/- WHICH WAS ALSO SHO WN AS PER FORM 26AS. THUS IN THE LIGHT OF THE ABOVE FACTS AND IN THE ABSENCE OF ANY ENQUIRY CONDUCTED ON PART OF THE AO, IT IS HELD THA T THE AO WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.10,19,360/- MERE LY ON THE BASIS OF FORM 26AS. THE SAME IS DIRECTED TO BE DELETED. GR OUND OF APPEAL NO.2 IS ALLOWED. THE AO IS DIRECTED TO WRITE TO TH E PAYER COMPANY TO RECTIFY ITS TDS RETURN AND ASK THE JURISDICTIONAL T DS AUTHORITY TO EXAMINE THE ISSUE AND TAKE NECESSARY ACTION. 4. REVENUE IS AGGRIEVED AND IN APPEAL BEFORE US. 5. HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENTA TIVE AND HAVING PERUSED THE MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VI EW THAT BASED ON 26AS ALONE NO ADDITIONS CAN BE MADE. THIS CAN AT BEST BE A START ING POINT FOR NECESSARY VERIFICATION BY THE ASSESSEE, BUT IT CANNOT, ON STA NDALONE BASIS, JUSTIFY THE IMPUGNED ADDITIONS. HOWEVER, WE ALSO CONSIDERED IT APPROPRIATE TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR STR ICTLY LIMITED PURPOSE OF VERIFYING THE INFORMATION. IN CASE, HE CAN FIND ANY INDEPEND ENT EVIDENCE OF THE ASSESSEES ITA NO.253/AGRA/2013 A.Y. 2008-09 4 HAVING ACTUALLY RECEIVED THE SAID RENT, HE CAN BRIN G THE SAME TO TAX. WE MAKE IT CLEAR THAT THE ONUS WILL BE ON THE ASSESSING OFFICE R TO FIND SUCH EVIDENCE AND THAT THE ASSESSEE CANNOT BE EXPECTED TO DISCHARGE THE IM POSSIBLE BURDEN OF PROVING A NEGATIVE I.E. THAT THE ASSESSEE DID NOT RECEIVE SUC H RENT. 6. WITH THE OBSERVATIONS AS ABOVE, AND FOR THE LIMI TED PURPOSES SET OUT ABOVE, THE MATTER STANDS RESTORED TO THE FILE OF THE ASSES SING OFFICER. NEEDLESS TO ADD THAT ANY MATERIAL, ADVERSE TO THE ASSESSEE, WILL HAVE TO BE CONFRONTED TO THE ASSESSEE BY THE ASSESSING OFFICER, AND THAT, IN CASE ASSESSING OFFICER INTENDS TO PASS ANY FRESH ORDER AS A RESULT OF THESE DIRECTIONS, HE WILL DO S O ONLY AFTER GIVING DUE AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDAN CE WITH THE LAW AND BY WAY OF A SPEAKING ORDER. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES, IN THE LIMITED TERMS INDICATED ABOVE. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2014) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATE: 27 TH JUNE, 2014 ITA NO.253/AGRA/2013 A.Y. 2008-09 5 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY