Dy.Commissioner of Income Tax, Bareilly V. Smt. Asha Agarwal, Bareilly

ITA 315/LKW/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9116 (ITAT-LUCKNOW)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDRA KUMAR AGARWAL
• Keywords: Audit objection; Difference of opinion; Change of opinion
• Section: 40A(3); 143(3); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.315/LKW/2014 ASSESSMENT YEAR:2008 - 09 SMT. ASHA AGARWAL, PROP. M/S BALAJI ENTERPRISES, 143, KESHAR BHAWAN, BAREILLY. PAN:AGGPA0172P VS DY.C.I.T., CIRCLE - 1, BAREILLY. (RESPONDENT) (APPELLANT) SHRI R. K. RAM, D. R. APPELLANT BY RAVINDRA KUMAR AGARWAL, C.A. RESPONDENT BY 03/12/2014 DATE OF HEARING 23 /01/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A), BAREILLY DATED 05/02/2014 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE COMMISSIONER OF INCOME TAX (A), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY ISSUED NOTICE U/S 148 OF THE I. T. ACT, 1961. AS THE REASONS WERE RECORDED AND DULY PROVIDED TO BE ASSESSEE AND DISPOSED O FF THE OBJECTIONS IN PROPER MANNER. 2. THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (A), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS AS THE ASSESSING OFFICER HAS RIGHTLY MADE AN ADDITION OF 2 RS.11,03,57,085/ - ON ACCOUNT OF PAYMENTS MADE IN CASH (ABOVE RS .20,000/ - ) TO BSNL AGAINST PURCHASE U/S 40A(3) OF I.T. ACT, 1961. 3. THAT THE ORDER OF THE COMMISSIONER OF INCOME TAX (A), BAREILLY IS ERRONEOUS IN LAW AND ON FACTS MAY BE CANCELLED AND THE ORDER OF THE ASSESSING OFFICER MAY BE RESTORED. 3. LEARNED D. R . OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS LEARNED A. R. OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE REGARDING VALIDITY OF REOPENING HAS BEEN DECIDED BY LEARNED CIT(A) IN FAVOUR OF THE ASSESSEE ON THE BASIS THAT THE ASSESSING OFFICER HAS MERELY INITIATED THE REOPENING OF THE ASSESSMENT ON THE BASIS OF AUDIT OBJECTION RECEIVED FR OM THE AUDIT PARTY. IT IS ALSO NOTED BY THE CIT(A) THAT THE ORIGINAL ASSESSMENT WAS CO MPLETED U/S 143(3) OF THE ACT. ON THIS BASIS, HE HELD THAT THIS IS MERE CHANGE OF OPINION, WHICH IS NOT PERMISSIBLE. THESE FINDINGS OF CIT(A) COULD NOT BE CONTROVERTED BY LEARNED D.R. OF THE REVENUE AND HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN TH E ORDER OF CIT(A) ON THIS ISSUE. GROUND NO. 1 IS REJECTED. 5. REGARDING GROUND NO. 2, WE FIND THAT IT IS NOTED BY CIT(A) IN HIS ORDER THAT THE ASSESSEE IS ONLY ENTITLED TO FIXED COMMISSION AND NEVER BECOMES THE OWNER OF THE SIM CARDS AND RELATED PRODUCTS . HE HAS ALSO GIVEN A FINDING THAT THE ONLY INCOME, WHICH ARISES TO THE ASSESSEE IS ON ACCOUNT OF COMMISSION FROM SUCH TRANSACTIONS AS A FRANCHISEE AND THEREFORE, THE PURCHASES WERE WRONGLY RECORDED BY THE ASSESSEE AS HER OWN PURCHASES BUT THE SAME IS ACTUALLY NOT HER PURCHASES AND THEREFORE, NO ADDITION/DISALLOWANCE CAN BE MADE IN HER HANDS U/S 40A(3) OF THE ACT. 3 THESE FINDING ALSO OF CIT(A) COULD NOT BE CONTROVERTED BY LEARNED D.R. OF THE REVENUE AND THEREFORE, ON THIS ISSUE ALSO, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). THIS GROUND IS ALSO REJECTED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23 /01/2015. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR