M/s. Jyoti Roadlines, Pune V. Income-tax Officer,

ITA 2681/PUN/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7273 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-09-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Validity of assessment; Reassessment proceedings
• Section: 40A(3); 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE SHRI VIKAS AWASTHY, JM . / ITA NO. 2681/PUN/2016 ! '! / ASSESSMENT YEAR : 2008-09 M/S. JYOTI ROADLINES, AT POST : SHIVAJINAGAR, MALEGAON, BK, BARAMATI, DIST. PUNE-413 102 PAN : AADFJ4523G ....... / APPELLANT # / V/S. THE INCOME TAX OFFICER, WARD-5(4), PUNE. / RESPONDENT APPELLANT BY : SHRI S.N PURANIK RESPONDENT BY : SHRI SUDHENDU DAS / DATE OF HEARING : 18.09.2018 / DATE OF PRONOUNCEMENT : 28.09.2018 $ / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-7, PUNE DATED 29.08.2016 FOR THE ASSESSMENT YEAR 2008- 09. 2 ITA NO.2681/PUN/2016 A.Y.2008-09 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE IS ENGAGED IN TRANSPORT BUSINESS. THE ASSESSEE FILED RETUR N OF INCOME FOR THE ASSESSMENT YEAR 2008-09 ON 12.08.2008 DECLARING TOTAL INC OME OF RS.1,27,820/-. THE ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS MADE ON 09.12.2 010 AND THE TOTAL INCOME OF ASSESSEE WAS ASSESSED AT RS.3,53,050/-. THEREAFT ER, THE CASE OF THE ASSESSEE WAS RE-OPENED AND NOTICE U/S.148 OF THE ACT W AS ISSUED TO THE ASSESSEE. IN REASSESSMENT PROCEEDINGS, THE ASSESSING OFFIC ER MADE ADDITION OF RS.9,00,000/- U/S.40A(3) OF THE ACT. 3. AGGRIEVED BY THE ASSESSMENT ORDER DATED 03.03.2014 PASSED U/S. 143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEA LS) UPHELD THE FINDINGS OF ASSESSING OFFICER AND DISMISSED THE APPEAL OF ASSES SEE. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL ASSAILING T HE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUNDS : 1. CIT(A) HAS ERRED IN CONFIRMING THE VALIDITY OF R EOPENING AND ALSO VALIDITY OF ASSESSMENT U/S.143(3) R.W.S. 147/148, A PPELLANT PRAYS TO DECLARE THE PROCEEDING WITHOUT JURISDICTION AND ASS ESSMENT IS BAD IN LAW . 2. CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS.9,00, 000/- U/S.40A(3), SAME MAY PLEASE BE DELETED. 3. APPELLANT PRAYS TO CANCEL INTEREST U/S. 234B, PA RTICULARLY BY 234B(3) OF THE ACT. 4. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 5. APPELLANT PRAYS TO ADD, ALTER, AMEND, MODIFY AND OR WITHDRAW THE GROUND/S DURING THE APPELLANT PROCEEDINGS. 4. SHRI S. N. PURANIK APPEARING ON BEHALF OF THE ASSESSEE S UBMITTED AT THE OUTSET THAT HE IS NOT PRESSING GROUND NO.1 OF THE APPEA L. IN RESPECT OF GROUND NO. 2, THE LD. AR SUBMITTED THAT DURING THE COURSE OF BUSIN ESS OPERATION, ASSESSEE HAD ISSUED BEARER CHEQUES IN THE NAME OF HIS E MPLOYEES. THESE 3 ITA NO.2681/PUN/2016 A.Y.2008-09 CHEQUES WERE FOR WITHDRAWAL OF CASH FROM BANK AND NOT FOR MAKING ANY PAYMENTS TO ANY PARTY/CREDITORS. THE CASH WITHDRAWAL FR OM BANK WAS DULY RECORDED IN THE CASH BOOK ON THE RESPECTIVE DATES. IN THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS OBSERVED THAT CASH HAS BEEN WITHDRAWN FROM THE BANK FOR EXPENDITURE. HOWEVER, THE ASSESSING OFFI CER FAILED TO POINT OUT ANY EXPENDITURE INCURRED BY THE ASSESSEE IN CASH. T HE LD. AR POINTED THAT BEFORE THE ASSESSING OFFICER, CASH BOOK WAS PRODUCED AND INDIVIDUAL ENTRIES WERE EXPLAINED. HOWEVER, THE EXPLANATION OF THE ASSESSEE WAS NOT CONSIDERED AND ADDITION WAS MADE. THE LD. AR FURNISHED THE COPY OF CA SH BOOK FOR THE FINANCIAL YEAR 2007-08 AND THE BANK STATEMENT. THE LD. AR POINTED THAT EACH WITHDRAWAL FROM THE BANK HAS BEEN RECORDED AND THE AMO UNT HAS BEEN DEBITED IN THE CASH BOOK. 5. ON THE OTHER HAND, SHRI SUDHENDU DAS REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSING THE APPEAL OF ASSESSEE BEING DEVOID OF ANY MERIT. 6. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERU SED. IN RESPECT OF GROUND NO. 1 RAISED IN APPEAL CHALLENGING REASSESSMENT PR OCEEDINGS, THE LD. AR STATED AT THE BAR THAT HE IS NOT PRESSING GROUND N O. 1. THUS, IN VIEW OF THE STATEMENT MADE BY THE LD. AR GROUND NO.1 RAISED IN APPEAL IS DISMISSED AS NOT PRESSED. 7. IN GROUND NO.2 OF THE APPEAL, THE ASSESSEE HAS ASSAILE D ADDITION OF RS.9,00,000/- U/S. 40A(3) OF THE ACT. THE ADDITION HAS BEEN M ADE BY THE AUTHORITIES BELOW ON PRESUMPTION THAT BEARER CHEQUES ISS UED BY THE ASSESSEE IN THE NAME OF EMPLOYEES IS TOWARDS THE PAYMENT BEYOND RS.20,000/. THE LD. AR HAS DRAWN MY ATTENTION TO THE CASH BOOK FOR THE PE RIOD 01 ST MARCH, 2007 TO 11 TH MARCH, 2008. THE LD. AR POINTED THAT CASH WITHDRAWN FROM THE BANK 4 ITA NO.2681/PUN/2016 A.Y.2008-09 HAS BEEN DEBITED TO THE CASH BOOK. AFTER PERUSAL OF THE ENTRIES IN THE CASH BOOK, I AM SATISFIED THAT THE AMOUNT WITHDRAWN BY THE AS SESSEE BY ISSUING BEARER CHEQUES IN THE NAME OF HIS EMPLOYEES AS MENTIONED IN PARA 3 OF THE ASSESSMENT ORDER HAVE BEEN DULY RECORDED IN THE CASH BOOK. THE ADDITION HAS BEEN MADE BY THE AUTHORITIES BELOW MERELY ON PRESUMPTIO N AND SURMISES. THE REVENUE HAS NOT BROUGHT ANY EVIDENCE ON RECORD INDICATING THAT THE AMOUNT WITHDRAWN FROM THE BANK HAS BEEN UTILIZED BY THE ASSESSEE FOR MAKING CASH PAYMENTS BEYOND RS.20,000/-. THEREFORE, I AM OF THE OPINION THAT ADDITION MADE U/S.40A(3) IS NOT WARRANTED. ACCORDINGLY , THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ON THIS GROUND ARE R EVERSED AND GROUND NO. 2 RAISED IN APPEAL BY THE ASSESSEE IS AL LOWED. 8. IN GROUND NO.3 OF THE APPEAL, THE ASSESSEE HAS ASSA ILED CHARGING OF INTEREST U/S.234B. CHARGING OF INTEREST U/S.234B IS CONSEQ UENTIAL AND MANDATORY. ACCORDINGLY, GROUND NO. 3 RAISED IN APPEAL BY THE ASSESSEE IS DISMISSED. 9. THE GROUND NO. 4 AND 5 OF THE APPEAL ARE GENERAL IN N ATURE AND HENCE, REQUIRES NO ADJUDICATION. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWE D IN THE TERMS AFORESAID. ORDER PRONOUNCED ON FRIDAY, THE 28 TH OF SEPTEMBER, 2018. SD/- ( /VIKAS AWASTHY) / JUDICIAL MEMBER / PUNE; ! ' / DATED : 28 TH SEPTEMBER, 2018. SB 5 ITA NO.2681/PUN/2016 A.Y.2008-09 $%&'()'' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-7, PUNE. 4. THE CIT-6, PUNE. 5. %&' () , * () , - +,- , / DR, ITAT, SMC BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // * 2 / BY ORDER, 3 (- /PRIVATE SECRETARY * () , / ITAT, PUNE.