OM PRAKASH SHARMA, JAIPUR V. DCIT, CIRCLE-4, JAIPUR

ITA 31/JPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8463 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 20-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARY CIT DHK
• Assessee Lawyers: S L PODDAR
• Keywords: Business income; TDS; FORM 26AS
• Section: 80C; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 31/JP/2021 ASSESSMENT YEAR: 2017-18 OM PRAKASH SHARMA, MANGAL HARI BHAWAN, KHANDELA BAZAR, SHRIMADHOPUR, DISTT.-SIKAR-332715. CUKE VS. I.T.O. WARD- NEEM KA THANA, DISTT.-SIKAR. PAN NO.: ATCPS 3452 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI S.L. PODDAR (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SMT.MONISHA CHOUDHARY (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02/08/2021 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 18/08/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), NATIONAL FACELESS APPEAL CENTRE (NFAC), DELHI DATED 29/03/2021 FOR THE A.Y. 2017-18. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE: 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO (CPC) IN PASSING THE ORDER U/S 154 OF THE IT ACT, 1961. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO (CPC) IN CONSIDERING THE BUSINESS INCOME AS INCOME FROM OTHER SOURCES OF RS. 6,49,849/- WHICH RESULTED THE DOUBLE ADDITION. ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 2 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THE SUBMISSION OF THE ASSESSEE MADE BEFORE HIM. 4. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION ON THE GROUND THAT APPELLANT HAS FILED THE WRONG ITR FORM WHICH RESULTED THE MISCARRIAGE OF JUSTICE. 5. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD, AMEND OR ALTER ALL OR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND SAVING AGENT INCLUDING LIC, POST OFFICE, MUTUAL FUNDS AND OTHER SAVING SCHEMES. THE ASSESSE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME AS UNDER: - 1. LOSS FROM HOUSE PROPERTY RS. (-) 59490.00 2. BUSINESS INCOME RS. 389920.00 TOTAL RS. 330430.00 LESS: DEDUCTION U/S 80C RS. 150000.00 NET TAXABLE INCOME RS. 180430.00 THE CPC HAS PROCESSED THE RETURN FILED BY THE ASSESSEE BY MAKING ADDITION IN INCOME FROM OTHER SOURCE FOR RS. 6,49,849/- ON ACCOUNT OF COMMISSION INCOME REFLECTING IN 26AS OF THE ASSESSE. 4. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING THE FACTS ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 3 AND SUBMISSIONS, UPHELD THE ACTION TAKEN BY THE A.O. AGAINST THE SAID ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE ITAT ON THE GROUNDS MENTIONED ABOVE. 5. GROUNDS NO. 1 TO 4 OF THE APPEAL ARE INTERRELATED AND INTERCONNECTED AND MAINLY RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 6,49,849/-, THEREFORE WE THOUGHT IT FIT TO DISPOSE OFF BY THIS CONSOLIDATED ORDER. 6. THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGUMENTS AS WERE RAISED BEFORE THE LD. CIT(A) AND HAS SUBMITTED THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY SAYING THAT THE ASSESSEE HAS FILED THE WRONG ITR AND HIS INCOME WAS WRONGLY DECLARED UNDER PRESUMPTIVE SCHEME. IN THIS REGARD HE HAS SUBMITTED THAT THE ASSESSEE HAS FILED ITR-4 WHICH IS APPLICABLE FOR INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS AND PROFESSION. THE ASSESSEE'S BUSINESS WAS INSURANCE AND SAVING SCHEME'S COMMISSION BUSINESS INCOME AND SAME HAS BEEN DECLARED IN THE INCOME TAX RETURN. THE ASSESSE HAS NOT OPTED ANY PRESUMPTIVE SCHEME AS MENTIONED BY THE LD. CIT(A) IN HIS APPELLATE ORDER. THE ASSESSE HAS DECLARED THE BUSINESS INCOME BY SHOWING ALL THE INCOME AND EXPENDITURE. HE HAS FURTHER SUBMITTED THAT THE LD. CIT(A) WAS NOT ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 4 JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSE. THE ADDITION CONFIRMED BY THE LD. CIT(A) TANTAMOUNT TO THE DOUBLE ADDITION. THE ASSESSE IS NOT HAVING OTHER INCOME OTHER THAN LIC COMMISSION AND POST OFFICE COMMISSION INCOME. THE TDS WAS ALSO DEDUCTED ON THE SAME INCOME WHICH IS REFLECTING IN FORM NO. 26AS. THEREFORE THE ADDITION DESERVES TO BE DELETED. 7. ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL PLACED ON RECORD. FROM PERUSAL OF THE RECORD, WE NOTICED THAT THE A.O. MADE ADDITION IN THE INCOME OF THE ASSESSEE BY TREATING RS. 6,49,849/- AS INCOME FROM OTHER SOURCES. HOWEVER, AS PER THE ASSESSEE, THE SAID AMOUNT WAS EARNED BY THE ASSESSEE ON ACCOUNT OF COMMISSION AND THE SAME HAS BEEN REFLECTED IN FORM 26AS. AS PER THE ASSESSEE, HE HAD DECLARED THIS COMMISSION INCOME UNDER THE HEAD BUSINESS/PROFESSION AND THE DETAILS CARRIED OUT IN FORM 26AS ARE REPRODUCED BELOW: 1. LIC COMMISSION 577250.00 I POST OFFICE COMMISSION 72599.00 TOTAL COMMISSION 649850.00 ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 5 EXPENSES CLAIMED BY THE ASSESSE: SALARY EXPENSES 180000 CONVEYANCE EXPENSES 36000 OFFICE AND STATIONERY EXPENSES 27400 TELEPHONE EXPENSES 16530 TOTAL 259930 -259930 389920.00 FROM THE RECORD, WE NOTICED THAT THE ASSESSEE HAS DECLARED THE ABOVE BUSINESS INCOME EARNED FROM LIC AND POST OFFICE COMMISSION UNDER THE HEAD PROFIT FROM BUSINESS & PROFESSION IN ITR-4 FILED BY THE ASSESSE BUT THE CPC HAS PROCESSED THE RETURN FILED BY THE ASSESSEE BY ADDING RS. 6,49,850/- UNDER THE HEAD INCOME FROM OTHER SOURCE. SUBSEQUENTLY, ON AN APPLICATION FILED U/S 154 OF THE IT ACT, 1961, THE SAID APPLICATION WAS REJECTED. FURTHER, THE LD. CIT(A) HAD ALSO DISMISSED THE APPEAL OF THE ASSESSEE BY HOLDING THAT THE ASSESSEE HAD FILED A WRONG ITR AND HIS INCOME WAS WRONGLY DECLARED UNDER PRESUMPTIVE SCHEME. WHEREAS ON THE CONTRARY, THE LD. AR HAS SPECIFICALLY SUBMITTED THAT THE ASSESSEE HAS FILED ITR-4 WHICH WAS APPLICABLE FOR INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS AND PROFESSION AND SINCE, ACCORDING TO THE LD. AR, THE ONLY SOURCE OF INCOME OF THE ASSESSEE WAS INSURANCE AND SAVING SCHEME'S COMMISSION AND THE SAME HAS BEEN ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 6 DECLARED IN THE INCOME TAX RETURN. IT HAS ALSO BEEN SPECIFICALLY SUBMITTED THAT THE ASSESSEE HAS NOT OPTED ANY PRESUMPTIVE SCHEME AS MENTIONED BY THE LD. CIT(A) IN HIS APPELLATE ORDER. EVEN THE REVENUE HAS NOT BEEN ABLE TO DEMONSTRATE THAT AT ANY STAGE, THE ASSESSEE HAD OPTED ANY PRESUMPTIVE SCHEME AS MENTIONED BY THE LD. CIT(A) IN HIS ORDER WHEREAS THE ASSESSEE HAD DECLARED BUSINESS INCOME BY SHOWING ALL THE INCOME AND EXPENDITURE AND THE SAME IS REPRODUCED AS UNDER: EXPENDITURE AMOUNT INCOME AMOUNT TO SALARY EXPENSES 180000 BY LIC COMMISSION 577250 TO CONVEYANCE EXPENSES 36000 BY POST OFFICE COMMISSION 72599 TO OFFICE AND STATIONERY EXPENSES 27400 TO TELEPHONE EXPENSES 16530 TO NET PROFIT 389920 649850 649850 THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE AND IN CASE, THE ADDITIONS CONFIRMED BY THE LD. CIT(A) ARE SUSTAINED THEN IN THAT EVENTUALITY, THE SAME TANTAMOUNT TO DOUBLE ADDITION AND NOT PERMISSIBLE UNDER THE LAW. AS PER THE RECORD, THE ASSESSEE WAS NOT HAVING ANY OTHER INCOME OTHER THAN THE LIC COMMISSION AND POST OFFICE COMMISSION ITA 31/JP/2021_ OM PRAKASH SHARMA VS ITO 7 AND THE TDS OF THE SAME HAS ALSO BEEN DEDUCTED ON THE SAID INCOME WHICH IS REFLECTED IN FORM 26AS, THEREFORE, CONSIDERING THESE PECULIAR FACTS AND CIRCUMSTANCES, WE DIRECT THE A.O. TO DELETE THE ADDITION. 9. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2021. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 18/08/2021 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI OM PRAKASH SHARMA, SHRIMADHOPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD- NEEM KA THANA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 31/JP/2021) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR