Sri. mohamed Ibrahim Ansarahmed, Dharwad V. Assistant Commissioner of Income Tax, Circle-2(1), Hubli

ITA 2749/BANG/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8717 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 28-07-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 18-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PREETHI S PATEL
• Keywords: Bonafide belief; Condonation of delay; TDS; FORM 26AS
• Section: 143(3); 145; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER IT A NO . 2749/ BANG / 2017 ASSESSMENT YEAR : 2013 - 14 MR. MOHAMED IBRAHIM ANSARAHMED, PROP. SPEED TRANSPORT, PLOT NO.85, WARD NO.3, 5 TH CROSS, KUMARESHWAR NAGAR, DHARWAD. PAN: ALOPM 9761F VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 2(1), NAVANAGAR, HUBLI. APPELLANT RESPONDENT APPELLANT BY : S MT. PREETHI S. PATEL, ADVOCATE RESPONDENT BY : SHRI PR IYADARSHI MISHRA, ADDL. C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 28 . 0 7 .2021 DATE OF PRONOUNCEMENT : 28 .0 7 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(APPEALS), HUBLI DATED 29.9.2017 FOR THE AY 2013 -14. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSES SEE IS A TRANSPORT CONTRACTOR ENGAGED IN BUSINESS OF TRANSPORTATION OF CHASIS, BUSES/TRUCKS ON CONTRACT BASIS. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT CONTRACT RECEIPTS REPORTED IN P&L ACCOUNT STOOD AT RS.6,08,39,281 AND NET PROFIT AT RS.40,25,727. THE AO OBSERVED HUGE EXPEND ITURE ON ACCOUNT OF TOLL TAX, CONVEYANCE, DIESEL, DRIVER BATTA, SALARY, TEMPORARY REGISTRATION CHARGES, ETC. AND CALLED THE ASSESSEE TO PRODUCE SU PPORTING DOCUMENTS ITA NO.2749/BANG/2017 PAGE 2 OF 3 WHICH WAS NOT DONE BY THE ASSESSEE. HOWEVER, THE A SSESSEE WAS ABLE TO PRODUCE DOCUMENTS ONLY TO THE EXTENT OF RS.34 LAKHS AGAINST THE CURRENT LIABILITY SHOWN AT RS.38,83,161. TAKING INTO ACCOUN T SUCH DISCREPANCIES, THE AO PROCEEDED TO INVOKE THE PROVISIONS OF SECTIO N 145 OF THE INCOME-TAX ACT, 1961 [THE ACT] AND REJECTED THE BOOK RESULTS. 3. THE AO ALSO FOUND FROM FORM 26AS THAT THE TOTAL RECEIPT WAS RS.6,37,18,000 AS AGAINST RS.6,03,39,281 SHOWN IN T HE P&L ACCOUNT. THE ASSESSEES NP RATION FOR THE CURRENT YEAR STOOD AT 6.61% AS AGAINST 5.98% IN AY 2012-13. KEEPING ALL THESE FACTORS IN MIND, THE AO REJECTED THE BOOK RESULTS AND ESTIMATE INCOME AT RS.63,71,800 @ 10% OF GROSS RECEIPTS AND MADE AN ADDITION OF RS.39,25,730 TO WH ICH THE ASSESSEE AGREED. HOWEVER, LATER THE ASSESSEE FILED AN APPLI CATION TO THE AO SEEKING RECTIFICATION OF THE ORDER U/S. 143(3) ON THE GROUN D THAT FULL CREDIT FOR TDS WAS NOT GIVEN. ACCORDINGLY, AO PASSED AN ORDER U/S . 154 ON 3.6.2016 WHICH WAS SERVED ON ASSESSEE ON 7.6.2016. 4. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(APP EALS) AGAINST THE ASSESSMENT ORDER U/S. 143(3) DATED 9.1.2016. THE C IT(A) OBSERVED THAT THE APPEAL IS AGAINST THE ORDER U/S. 154 THOUGH ASS ESSEE MENTIONED IT AS APPEAL AGAINST ORDER US/. 143(3) R.W.S. 154. HE WA S OF THE VIEW THAT FOR CONTESTING THE ORDER U/S. 143(3) THE APPEAL WAS FIL ED BEYOND THE TIME LIMIT AND NO APPLICATION FOR CONDONATION OF DELAY WAS FIL ED AND HENCE THE CIT(A) REJECTED THE APPEAL. AGAINST THIS, ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) AGAINST THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT. FU RTHER THERE WAS A DELAY OF 126 DAYS IN FILING THE APPEAL BEFORE THE CIT(A). THIS WAS NOT POINTED OUT TO THE ASSESSEE AND HENCE THE ASSESSEE HAD NOT FILE D ANY APPLICATION FOR CONDONATION OF DELAY IN FILING APPEAL BEFORE THE CI T(A). THE ASSESSEE WAS ITA NO.2749/BANG/2017 PAGE 3 OF 3 UNDER A BONAFIDE BELIEF THAT THERE WAS NO DELAY AND HENCE NO PETITION FOR CONDONATION OF DELAY WAS FILED BEFORE THE CIT(A). EVEN OTHERWISE, THE CIT(A) DISMISSED THE APPEAL FOR NON-FILING OF PETIT ION FOR CONDONATION OF DELAY AND CORRECTING THE DEFECT NOTICED BY HIM. IN THE INTEREST OF JUSTICE, HE MUST HAVE GIVEN AN OPPORTUNITY TO THE ASSESSEE WHIC H HE FAILED TO DO SO. BEFORE US, THE ASSESSEE FILED CONDONATION PETITION FOR DELAY OF 126 DAYS IN FILING APPEAL BEFORE CIT(A). IN OUR OPINION, IT IS APPROPRIATE TO REMIT THE ENTIRE ISSUE TO THE CIT(APPEALS) TO CONSIDER THE CO NDONATION PETITION FILED BY THE ASSESSEE IN PROPER PERSPECTIVE AND DECIDE AC CORDINGLY. IT IS ORDERED ACCORDINGLY. WE REFRAIN FROM GOING INTO TH E MERITS OF THE CASE ON THE ADDITIONS MADE BY THE AO. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JULY, 2021. SD/- SD/- ( N V VASUDEV AN ) ( CHANDRA POOJARI ) VICE PRESIDENT ACCOUNTANT MEMBER BANGALORE, DATED, THE 28 TH JULY, 2021. / DESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.