Shri Sikandarkhan N.Tunvar, Ahmedabad V. The Income tax Officer,Ward-9(4),, Ahmedabad

ITA 2756/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60579 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 03-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 27-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA
• Assessee Lawyers: B R POPAT
• Keywords: Gift; Corroborative evidences
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI D.K.TYAGI , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 2756/AHD/2010 ASSESSMENT YEAR :2007-08 SIKANDARKHAN N. TUNVAR SHRINATH NAGAR OPP. PATCO, ASLALI ROAD NAROL, N.H.NO.8 AHMADABAD. V/S . INCOME-TAX OFFICER WARD-9(4), AHMADABAD. PAN NO. ACFPT2533G (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI B.R. POPAT, A.R. /BY RESPONDENT SHRI S.K. GUPTA, CIT D.R. /DATE OF HEARING 03.07.2012 /DATE OF PRONOUNCEMENT 03.07.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHI CH HAS EMANATED FROM THE ORDER OF CIT(A)-XV, AHMEDABAD, ORDER DATED 15.09.2010 FOR ASSESSMENT YEAR 2007-08. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- (1) CONFIRMING THE ADDITION OF RS.8,74,77,630/- OR IGINALLY MADE BY THE AO UNDER SECTION 40(A)(IA) OF THE ACT; (2) PARTLY CONFIRMING THE ADDITION OF RS.3,27,000/- ORIGINALLY MADE BY THE AO UNDER SECTION 68 OF THE ACT. 2. THE FIRST GROUND OF APPEAL IS AGAINST ADDITION O F RS.8,74,77,630/- UNDER SECTION 40(A)(IA) OF THE IT ACT. ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 2 3. THE ASSESSEE IS A TRANSPORT CONTRACTOR AND COMMI SSION AGENT AND PROVIDED THE SERVICE OF PLYING TRUCKS. DURING THE COURSE OF ASSESSMENT PROCEEDING, IT WAS FOUND THAT THE APPELLANT HAD MAD E PAYMENT TO SUB- CONTRACTORS OF RS.8,74,76,630/-. ON FURTHER VERIFI CATION OF DETAILS SUBMITTED BY THE ASSESSEE IT WAS NOTICED BY THE A.O. THAT THE AS SESSEE HAD OBTAINED FORM NO.15-I UNDER THE I.T. RULE AND NOT DEDUCTED TDS FR OM TRANSPORTERS WHO OWNED LESS THAN TWO TRUCKS BUT HAD BEEN PAID TRANSP ORT PAYMENT IN EXCESS OF RS.20,000/- IN THE SINGLE TRIP AND AGGREGATE ABOVE RS.50,000/- IN F.Y. 2006- 07. BUT FORM NO. 15-I OBTAINED BY THE ASSESSEE, HA D NOT BEEN FURNISHED TO THE CIT IN FORM NO.15J BEFORE DUE DATE AS REQUIRED. HE FURTHER NOTICED THAT THE ASSESSEE HAD ACCEPTED FORM NO.15-I FROM M/S. SA RKHEJ MOTOR TRANSPORT WHICH IS A PARTNERSHIP FIRM AND FROM OTHER TRUCK OW NERS WHO HAD MORE THAN TWO TRUCKS WITHOUT VERIFYING THE PARTICULARS OF THE TRUCK NUMBERS. THEREFORE, THE ASSESSEE HAD MADE DEFAULT FOR NOT DEDUCTING TDS U/S 194(C) OF THE IT ACT, 1961. THE A.O. HAD GIVEN SHOW CAUSE NOTICE TO THE ASSESSEE FOR DISALLOWING THE EXPENSES UNDER SECTION 40(A)(IA) OF THE IT ACT AND FOR NOT DEDUCTING TDS U/S. 194(C) OF THE IT ACT. THE ASSESSEES REPLY WA S CONSIDERED AND IT WAS NOT FOUND CONVINCING TO THE A.O. THEREFORE, HE MADE AD DITION OF RS.8,74,76,630/- IN THE TOTAL INCOME OF THE ASSESSEE UNDER SECTION 4 0(A)(IA) OF THE IT ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIES THE MATTER BEFORE THE CIT(A) WHO HAD GIVEN DETAILED FIN DINGS ON PAGE NOS. 2 TO 34 AND NOT ONLY CONFIRMED THE ADDITION UNDER SECTION 4 0(A)(IA) OF THE IT ACT BUT ALSO ALTERNATIVELY U/S.37(1) BECAUSE THE GENUINENES S/AUTHENTICITY OF EXPENSE ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 3 CLAIMED BY THE ASSESSEE OF RS.8,74,76,630/- HAS NOT BEEN PROVED BY THE APPELLANT. THE OBSERVATION MADE BY LD. CIT(A) IN P ARAGRAPH NO.20 IS AS UNDER:- 20. THUS ON THE BASIS OF THE ABOVE DISCUSSION WHIC H IS ANALYSIS OF FORM NO.15-I FURNISHED BY THE APPELLANT HIMSELF AS SAMPLE DURING THE COURSE OF APPELLANT PROCEEDINGS AND OF ANNEXURE ENC LOSED WITH THE ASSESSMENT ORDER, I FIND THAT THE AO WAS CORRECT IN ADDING BACK RS.8,74,76,630 U/S.40(A)(IA) ( I AGREE WITH THE REASON GIVEN BY THE AO SUMMARIES IN PARA-5 ABOVE ) BECAUSE THE APPELLANT COULD NOT PROVE THAT THERE WERE DIFFERENT PERSONS OF THE SAME NAME. TO T OP IT ALL THE MANDATORY REQUIREMENT OF FURNISHING DETAILS OF ALL 15-IS COLLECTED TO THE CONCERNED COMMISSIONER WAS NOT FULFILLED BY THE APP ELLANT. DURING THE APPELLATE PROCEEDINGS IT WAS STATED THAT FORM 15-J WAS FILED WITH JCIT(TDS) ON 6.4.2007, COPIES OF TWO PAGES OF THE A NNEXURE OF FORM 15-J WERE FILED IN THIS OFFICE. IN THE PRESENT MATR IX OF FACTS I HAVE MY STRICT RESERVATIONS ABOUT THE AUTHENTICITY OF FORM NOS.15-I CLAIMED TO HAVE BEEN COLLECTED BY THE APPELLANT, RATHER THE CO PIES OF FORMS SUBMITTED BEFORE ME CONFIRM THE OPINION OF THE AO T HAT THE APPELLANT NEVER WANTED THAT HE SHOULD ENABLE THE JURISDICTION AL COMMISSIONER (WHO WOULD HAVE PASSED FORM 15-J TO THE CONCERNED A O) OR THE AO IN MAKING VERIFICATIONS OR INVESTIGATING INTO THE TRUT H OF THE DETAILS SUBMITTED. WHY SHOULD HE FILE THE FORM 15-J WITH TH E WRONG AUTHORITY AND FOR THE LAPSE WHY SHOULD HE BE GIVEN EXEMPTION FROM TAXATION SPECIALLY WHEN THE SCRUTINY OF FORMS 15-I FILED SHO W THAT THEY ARE NOT AUTHENTIC AND DO NOT FURNISH COMPLETE DETAILS / PA RTICULARS. THE APPELLANT HAS TAKEN VERY LIGHTLY THE SERIOUSNESS OF FORM 15-I OR FORM 15-J. AS PER ANNEXURE OF THE AO ONE PERSON OWNS MORE THAN TWO TRUCKS AND THIS IS PROVED EVEN ON ANALYSIS OF THE COPIES OF 15 -I FORMS FURNISHED AS SAMPLE BY THE APPELLANT DURING THE APPELLATE PROCEE DINGS. RATHER THE ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 4 INCOMPLETE ABSOLUTELY UNRELIABLE NOT INSPIRING ANY CONFIDENCE FORMS BEARING NO DATES FURNISHED BY THE APPELLANT COMPEL ME TO STATE THAT THE ADDITION IS WARRANTED NOT JUST U/S.40(A)(IA) BUT AL SO ALTERNATIVELY U/S.37(1) BECAUSE THE GENUINENESS / AUTHENTICITY OF EXPENSE CLAIMED OF RS.8,74,76,630 HAS NOT BEEN PROVED BY THE APPELLANT . DESPITE OPPORTUNITIES AND REQUISITION DATE AND AMOUNT WISE BREAK-UP OF THE PAYMENTS MADE WAS NOT FURNISHED. NOT ONE ORIGINAL FORM (15-I) HAS BEEN PRODUCED. XE ROX COPIES FILED SHOW NOT JUST THE SAME NAME BUT ALSO THE SAME ADDRE SS OF THE SAME INDIVIDUAL OWNING SEVERAL TRUCKS. COMPLETE ADDRESSE S HAVE NOT BEEN GIVEN IN SEVERAL CASES AS OBVIOUS FROM THE ANNEXURE OF THE ASSESSMENT ORDER. RATHER COMICAL VAGUE ADDRESSES HAVE BEEN GIV EN AGAINST SEVERAL NAMES. AFTER ALL WHY SHOULD ABSURD VAGUE D ETAILS BE ACCEPTED. THE MATRIX OF FACTS SHOWS UNVERIFIABLE EXPENSE OF R S. 8,74,76,630 -- NO PROPER NAMES ( REFER TO THE ANNEXURE OF THE ASSESSMENT ORDER ) NO PROPER ADDRESSES, NO DATES AT ALL, NO AMOUNTS WHATSOEVER - AND WHY THIS BE OVERLOOKED COUPLED WITH NOT FILLING FORM 15-J WITH THE COMMISSIONER IN WHOSE JURISDICTION THE APPELLANT FILES HIS RETURN, SPECIALLY WHEN THE APPELLANT IS CLAIMING DEDUCTION OF NOT A RUPEE OR T WO BUT OF FULL RS. 8,74,76,630. 4. BEING AGGRIEVED BY THE ORDER OF CIT(A), THE ASSE SSEE CARRIES THE MATTER BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE CONTEN DED THAT THE UNPAID EXPENDITURES WERE RS.3,92,500/- PERTAINED TO TWO PA RTIES ONLY REMAINING AMOUNT OF PAID DURING THE YEAR UNDER CONSIDERATION. HE ALSO FILED THE COPY OF THE BALANCE SHEET WHICH SHOWS UNPAID LORRY EXPENSES AT RS.3,92,500/-. THE APPELLANT ALSO RELIED ON SPECIAL BENCH, VISAKHAPATN AM, DECISION IN CASE OF M/S. MERILYN SHIPPING & TRANSPORTS VS. ACIT IN ITA NO. 477/VIZ/2008 , WHERE CO-ORDINATE BENCH STRICT INTERPRETED WORD PAYABLE USED IN SECTION 40(A)(IA) ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 5 OF THE IT ACT, 1961 IN ITS NATURAL MEANING AND HELD THAT SECTION 40(A)(IA) IS APPLICABLE ONLY EXPENDITURE PAYABLE AS ON 31 ST MARCH OF EVERY YEAR AND CANNOT BE INVOKED TO DISALLOW THE AMOUNTS WHICH HAD ALREADY BEEN PAID DURING THE PREVIOUS YEAR, WITHOUT DEDUCTING TAX AT SOURCE. HE FURTHER RELIED ON CO-ORDINATE D BENCH, ITAT, AHMADABAD, DECISION IN CASE OF N.K. JEWELLERS VS. INCOME TAX OFFICER IN ITA NO. 638/AHD/2009, KRANTI ROAD TRANSPORT PVT. LTD. VS. ACIT IN ITA NO. 358/VIZAG/2008 & GUJARAT ROADLINES VS. THE INCOME TAX OFFICER IN ITA NO. 3023/AHD/2008, IN WHICH SIMILAR ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY CONSIDERING THE SPECIAL B ENCH DECISION I.E. M/S. MERILYN SHIPPING & TRANSPORTS VS. ACIT (SUPRA). 5. ANOTHER SIDE, LD. CIT D.R. RELIED ON THE ORDER O F THE CIT(A) AND REQUESTED TO CONFIRM THE ADDITION. 6. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW, GONE THROUGH THE CASE RELIED UPON AND THE FACTS OF THE CASE. THE ISS UE IS REMAINED ONLY TO VERIFY THE FACTS OF WHAT AMOUNT WAS PAID DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR AND WHAT WAS PAYABLE AS ON 31 ST MARCH OF PREVIOUS YEAR OF THE RELEVANT ASSESSMENT YEAR. THEREFORE, THE A.O. IS DIRECTED TO VERIFY THE AMOUNT PAID AND PAYABLE. AS DISCUSSED ABOVE, THE S ECTION 40(A)(IA) IS APPLICABLE ONLY AMOUNT PAYABLE AS ON 31 ST MARCH OF YEAR UNDER CONSIDERATION FURTHER HE ALSO CONSIDER THE FINDINGS GIVEN BY THE LD. CIT (A) IN HER ORDER THAT THE GENUINENESS/AUTHENTICITY OF THE EXPENSES CLAIME D OF RS. 8,74,76,630/- HAS NOT BEEN PROVED. THE A.O. IS ALSO DIRECTED TO VERI FY THE GENUINENESS OF THE TRANSACTION AT THE TIME OF HEARING AND CALCULATE TH E DISALLOWANCE AS PER ABOVE ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 6 FINDING. THUS, THIS GROUND OF APPEAL IS SET ASIDE TO THE A.O. AS PER THE ABOVE FINDING. 7. IN THE RESULT, ON THIS GROUND THE APPEAL IS ALLO WED FOR STATISTICAL PURPOSE. 8. GROUND NO.2 IS AGAINST THE ADDITION OF RS.3,27,0 00/- U/S 68 OF THE IT ACT. THE A.O. NOTICED THAT THE ASSESSEE HAD INTRODUCED C APITAL OF RS.5,34,989/-, OUT OF WHICH THE ASSESSEE HAD EXPLAINED THE SOURCE OF RS.2,07,989/- WHICH WAS IT REFUND FOR AY 03-04 AND HIS SAVINGS. THE AP PELLANT EXPLAINED THAT RS.3,27,000/- INTRODUCED BY HIM FROM GIFT RECEIVED FROM HIS FATHER WHICH WAS OUT OF SALE PROCEEDS OF AGRICULTURAL LAND. BUT NO EVIDENCE OF SOURCE HAD BEEN FURNISHED BEFORE THE A.O. BY THE APPELLANT. THEREF ORE, HE MADE THE ADDITION OF RS.3,27,000/-. 9. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIES THE MATTER BEFORE CIT(A). THE LD. CIT(A) FURTHER ALLOW ED THE RELIEF OF RS.75,000/- ON THE AMOUNT OF GIFT RECEIVED FROM HIS FATHER WHO OWNED AGRICULTURAL LAND AND GIFT DECLARATION WERE FILED BEFORE THE A.O. THE RE MAINING AMOUNT OF RS.2,52,000/- HAD BEEN CONFIRMED BY THE LD. CIT(A) AS NO EXPLANATION WITH SUPPORTING EVIDENCE HAD BEEN GIVEN NEITHER BEFORE T HE A.O. NOR BEFORE THE CIT(A). 10. NOW THE ASSESSEE IS BEFORE US. LD. COUNSEL FOR THE APPELLANT CONTENDED THAT RS.3,27,000/- WERE RECEIVED FROM THE OUT OF SALE PROCEEDS OF AGRICULTURAL LAND IN THE NAME OF HIS FATHER BEFORE THE A.O. BUT BEFORE THE CIT(A) IT WAS CLAIMED AS ADVANCE AGAINST SALE PROCE EDS OF AGRICULTURAL LAND BUT NO EVIDENCE EVEN BEFORE US HAS BEEN GIVEN BY TH E APPELLANT. LD. CIT ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 7 D.R. HAS NOT OPPOSED THE SUBMISSION OF APPELLANT. THEREFORE, THIS MATTER IS ALSO SET ASIDE TO THE A.O. TO GIVE ONE MORE OPPORTU NITY TO THE APPELLANT TO PRODUCE THE EVIDENCE OTHERWISE A.O. IS FREE TO TAKE DECISION AS PER LAW. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- ( D.K.TYAGI ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 25&26.07.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 26.07.2012 4) DATE OF CORRECTION XXX 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 30.07.2012 7) ORDER UPLOADED ON 31.07.2012 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 31.07.2012 ITA NO. 2756/AHD/2010 A.Y. 07-08 PAGE 8