Jeewani Fuels Pvt. Ltd., Faizabad V. Principal Commissioner of Income Tax, Faizabad

ITA 299/LKW/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1112 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 04-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J S MINHAS
• Keywords: Additional evidence
• Section: 40A(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO. 299/LKW/2017 ASSESSMENT YEAR: 2012 - 13 JEEWANI FUELS PVT. LTD. 105, MUGALPURA FAIZAB AD V. PR. CIT FAIZABAD T AN /PAN : AABCJ2557K (APP ELL ANT) (RESPONDENT) ITA NO. 442/LKW/2017 ASSESSMENT YEAR: 2012 - 13 PR. CIT FAIZABAD V. JEEWANI FUELS PVT. LTD. 105, MUGALPURA FAIZABAD T AN /PAN : AABCJ2557K (APP ELL ANT) (RESPONDENT) DEPARTMENT BY : SHRI J.S. MINHAS, CIT (DR) ASSESSEE BY: SHRI ABHINAV MEHROTRA, ADVOCATE DATE OF HEARING: 07 02 201 8 DATE OF PRONOUNCEMENT: 12 0 2 201 8 O R D E R PER T.S.KAPOOR , A .M : THESE CROSS - APPEALS PREFERRED BY THE ASSESSEE AS WELL AS THE REVENUE EMANATE FROM THE ORDER OF THE LD. CIT(A), FAIZABAD DATED 25/5/2016 AND CORRESPONDING ORDER DATED 21/3/2017 PASSED BY THE PRINCIPAL CIT, FAIZABAD UNDER SECTION 263 OF THE ACT. 2 . FIRST WE WILL DEAL WITH THE APPEAL FILED BY THE REVENUE IN ITA NO.442/LKW/2016. THE REVENUE I S AGGRIEVED BY THE ORDER OF THE LD. CIT(A) IN ACCEPTING THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A(3) OF THE RULES. ITA NO.299 & 442/LKW/2017 PAGE 2 OF 5 3 . THE BRIEF FACTS AS APPEARING IN THE ORDER OF THE ASSESSING OFFICER ARE THAT THE ASSESSEE - COMPANY IS ENGAGED IN THE BUSINESS OF TRADING IN COAL. THE ASSESSING OFFICER NOTED THAT SOME PAYMENTS OF TRUCK FREIGHT HA D BEEN MADE IN CASH EXCEEDING THE PRESCRIBED LIMIT OF RS.35,000/ - WHICH WERE NOT ALLOWABLE AS PER THE PROVISIONS OF SECTION 40A(3) OF THE ACT. THE ASSESSEE CONTENDED THAT THE PAY MENTS EXCEEDING RS.20,000/ - WERE MADE IN CASH BUT NOT EXCEEDING RS.35,000/ - FOR PAYMENT OF SINGLE TRUCK IN A DAY, WHICH WAS WHOLLY AND FULLY ALLOWABLE AS PER THE PROVISIONS OF SECTION 40A(3) OF THE ACT. THE ASSESSING OFFICER DID NOT ACCEPT THE SUBMISSION OF THE ASSESSEE AND AS PER THE REASONS APPEARING IN HIS ORDER, HE DISALLOWED AN AMOUNT OF RS.1,44,82,869/ - BEING EXPENDITURE MADE IN CASH IN VIOLATION OF THE PROVISIONS OF SECTION 4 0 A(3) READ WITH RULE 6DD OF THE RULES AND WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 4 . THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) AFTER CONSIDERING THE ENTIRE FACTS AND MATE RIALS AVAILABLE ON RECORD HELD THAT THERE WAS NO CONTRAVENTION OF THE PROVISIONS OF SECTION 4 0 A(3) OF THE ACT BY THE ASSESSEE AND ACCORDINGLY HE DELETED THE ADDITION. 5 . AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. THE LD. CIT (D.R. ) SUBMITTED THAT THE LD. CIT(A) HAS ACCEPTED THE ADDITIONAL EVIDENCE IN THE FORM OF VOUCHERS, WHICH IS A VIOLATION OF RU LE 46A(3) OF THE RULES . T HEREFORE , THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AND LIABLE TO BE DISMISSED AND TH E ORDER OF THE ASSESSING OFFICER IS TO BE RESTORED. 6 . THE LD. A.R. OF THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSING OFFICER IN THE BODY OF THE ASSESSMENT ORDER HAS STATED THAT DURING THE SCRUTINY PROCEEDINGS THE ASSESSEE HAS SUBMITTED CASH BOOK, LEDGER ACCOUNT AND SOME SELF - MADE VOUCHERS, ETC. THEREAFTER THE ITA NO.299 & 442/LKW/2017 PAGE 3 OF 5 ASSESSING OFFICER HAS ALSO WRITTEN THAT TRUCK FREIGHT ARE MADE IN A DAY IN C ASH AND THE VOUCHERS PRODUCED FOR THE CLAIM OF THESE EXPENSES ARE SELF - MADE TYPE WITHOUT ANY THIRD PARTY EVIDENCES. T HE LD. A.R. OF THE ASSESSEE SUBMITTED THAT FROM THE ABOVE FACTS NOTED BY THE ASSESSING OFFICER IT IS ABSOLUTELY CLEAR THAT THESE VOUCHERS REGARDING TRUCK FREIGHT , WHICH WERE FURNISHED BEFORE THE LD. CIT(A), WERE ALSO WITH THE ASSESSING OFFICER BEFOREHAND , T HEREFORE, THERE IS NO VIOLATION OF THE PROVISIONS OF RULE 46A . 7 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS AND WE FI ND THAT THERE IS NO VIOLATION OF RULE 46A OF THE RULES BY THE LD. CIT(A) AND ALL THE DETAILS AND VOUCHERS REGARDING TRUCK FREIGHT WERE WITH THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE LEDGER ACCOUNTS OF TRUCK FREIGHT EXPENSES WH ICH WAS ALSO BEFORE THE ASSESSING OFFICER CLEARLY SHOWS THE BREAKUP OF EXPENDITURE AND WHICH RELATES TO MORE THAN ONE TRUCK AND NONE OF THE INDIVIDUAL PAYMENT IS MORE THAN RS.35,000/ - . THESE DOCUMENTS, THEREFORE, CANNOT BE TREATED AS ADDITIONAL EVIDENCES AND , THEREFORE , THERE IS NO CONTRAVENTION OF RULE 46A OF THE RULES. IN THIS VIEW OF THE MATTER, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND , THEREFORE , THE RELIEF GRANTED TO THE ASSESSEE IS SUSTAINED. 8 . ACCORDINGLY, THE APPEAL OF T HE REVENUE IS DISMISSED. 9 . NOW WE WILL TAKE UP THE APPEAL OF THE ASSESSEE IN ITA NO.299/LKW/2016 AGAINST THE ORDER OF THE PR. CIT PASSED UNDER SECTION 263 OF THE ACT. 10 . WE HAVE PERUSED THE CASE RECORDS, ANALYSED THE FACTS & CIRCUMSTANCES OF THE CASE AND WE OBS ERVE THAT JURISDICTION UNDER SECTION 263 OF THE ACT CAN BE TAKEN UP BY THE LD. PR. COMMISSIONER OF INCOME - TAX IF THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST ITA NO.299 & 442/LKW/2017 PAGE 4 OF 5 OF THE REVENUE AND THERE HAS TO BE A SPECIFIC FINDING AS TO HOW THE ORDER OF THE ASSESSING OFFICER IS FULFILLING THESE TWO CRITERIA ENSHRINED IN THE PROVISION AND THE REASONING SHOULD AUTOMATICALLY COME FROM THE ORDER PASSED BY THE LD. PR. COMMISSIONER OF INCOME - TAX UNDER SECTION 263 OF THE ACT. IN THE PRESENT CASE, THE LD. PR. C OMMISSIONER OF INCOME - TAX HAS NOT BROUGHT OUT ANY SPECIFIC AND COGENT REASON FOR ASSUMING JURISDICTION UNDER SECTION 263 OF THE ACT AND PER SAY ON THE BASIS OF THE FINDINGS OF THE ASSESSING OFFICER , HE SAYS THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF THE REVENUE. THERE IS NO INDEPENDENT FINDING OR REASONING GIVEN AS TO COMING TO THE CONCLUSION THAT HOW THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD. CIT(A) HAS RECORDED THAT ASSESSEE H AS NO OBJECTION IF THE CASE IS SET ASIDE ON LIMITED ISSUE AS PER PARA 4 OF THE NOTICE. IN OUR CONSIDERED VIEW, THERE IS ABSENCE OF BOTH THE CRITERIA AS WE HAVE DISCUSSED HEREINABOVE. THEREFORE, WE CANCEL THE ORDER PASSED BY THE LD. PR. COMMISSIONER OF I NCOME - TAX UNDER SECTION 263 OF THE ACT AND DIRECT THE PR. COMMISSIONER OF INCOME TAX TO PAS ORDER UNDER SECTION 263 AFTER RECORDING HIS OBSERVATIONS RELATING IT TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 11 . IN THE RESULT, APPEAL OF THE RE VENUE IS DISMISSED WHEREAS THE AP PEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 / 0 2 / 201 8 . SD/ - SD/ - [PARTHA SARATHI CHAUDHURY] [ T.S. KAPOOR ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12 TH FEBR UARY , 201 8 JJ: 0702 ITA NO.299 & 442/LKW/2017 PAGE 5 OF 5 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR