M/s Mulkh Raj & Sons, Amritsar. V. The Assistant Commissioner of Income Tax, Amritsar.

ITA 317/ASR/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1407 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 12-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K R JAIN
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S. KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A. NOS. 317(ASR)/2014 ASSESSMENT YEAR: 2009-10 PAN:AACFM0412A M/S MULKH RAJ & SONS 264- EAST MOHAN NAGAR, AMRITSAR. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-III, AMRITSAR. (APPELLANT) (RESPONDENT) I.T.A. NOS. 318 (ASR)/2014 ASSESSMENT YEAR: 2009-10 PAN:AAEFM0136D M/S MULKH RAJ & COMPANY 264- EAST MOHAN NAGAR, AMRITSAR. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-III, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. K.R. JAIN (ADV.) RESPONDENT BY: SH. TARSEM LAL (DR.) DATE OF HEARING: 0 1.10.2015 DATE OF PRONOUNCEM ENT: 06.10.2015 ORDER PER T. S. KAPOOR (AM): THESE ARE TWO APPEALS FILED BY THE ASSESSEE, AGAI NST THE SEPARATE ORDERS OF CIT, BOTH DATED 28.03.2014, UNDER SECTION 263 OF THE ACT. SIMILAR ISSUES ARE INVOLVED IN THESE APPEALS AND THESE APPEALS WERE HE ARD TOGETHER. THEREFORE, FOR THE SAKE OF CONVENIENCE, A COMMON AND CONSOLIDATED ORDER IS BEING PASSED. THE COMMON ISSUE INVOLVED IN THESE APPEALS IS THE G RIEVANCE OF THE ASSESSEE 2. ITA NOS. 317 & 318(ASR)/2014 ASST. YE AR 2009-10 AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INC OME TAX, UNDER SECTION 263 OF THE ACT. 2. AT THE OUT SET, THE LEARNED AR TOOK UP ITA 318(A SR)/2014 AND TOOK US TO THE NOTICE ISSUED BY THE CIT FOR INITIATION OF PROC EEDINGS UNDER SECTION 263. THE LEARNED AR SUBMITTED THAT LEARNED CIT HAD RAISE D THREE OBJECTIONS, ONE REGARDING THE ISSUE OF NON EXAMINATION OF GROSS PRO FITS, THE SECOND RELATED TO NON CONSIDERATION OF DISALLOWANCE UNDER SECTION 40A (2)(B) AND THE THIRD RELATED TO COMMISSION & DISCOUNTS. THE LEARNED AR INVITED O UR ATTENTION TO COPY OF ASSESSMENT ORDER PASSED BY ASSESSING OFFICER AND SU BMITTED THAT ASSESSING OFFICER HAD EXAMINED THE COMPLETE BOOKS OF ACCOUNT SO THEREFORE, THERE WAS NO POINT IN INITIATING PROCEEDINGS UNDER SECTION 263 A S ASSESSING OFFICER HAD ALREADY EXAMINED ALL THE FACTS. THE LEARNED AR TOOK US TO PAPER BOOK PAGE 68 TO 71 AND SUBMITTED THAT DURING SURVEY ALL DETAILS OF STOCK WAS PREPARED BY DEPARTMENT ITSELF AND IT WAS AVAILABLE WITH THE DEP ARTMENT SO THEREFORE, THE ALLEGATIONS OF CIT THAT NO VERIFICATION HAS BEEN DO NE BY ASSESSING OFFICER IS WRONG. THE LEARNED AR ALSO TOOK US TO PAPER BOOK PA GE 66 WHERE A COPY OF SURRENDER LETTER MADE BY ASSESSEE WAS PLACED. THE L EARNED AR SUBMITTED THAT THE SUM OF RS.10 LACS WAS SURRENDERED ON ACCOUNT OF STOCK WHICH WAS INCLUDED IN THE STOCK FOR PREPARATION OF TRADING ACCOUNT. AS REGARDS OBJECTION REGARDING REBATE AND DISCOUNT, THE LEARNED AR SUBMITTED THAT THESE WERE REBATE AND DISCOUNTS AND THERE WERE PART OF BOOKS OF ACCOUNT W HICH WERE EXAMINED BY ASSESSING OFFICER, THEREFORE, CIT WAS NOT CORRECT I N RAISING THE ISSUE THAT THE SAME WERE NOT EXAMINED. AS REGARDS PAYMENTS U/S 40A (2)(B) RAISED BY THE 3. ITA NOS. 317 & 318(ASR)/2014 ASST. YE AR 2009-10 COMMISSIONER, THE LEARNED AR SUBMITTED THAT SINCE A SSESSING OFFICER HAD EXAMINED COMPLETE BOOKS OF ACCOUNT SO THEREFORE, CI T CANNOT ALLEGE THAT PAYMENTS UNDER SECTION 40A(2)(B) WERE NOT EXAMINED. ON A QUESTION PUT BY BENCH AS TO WHETHER THE ASSESSING OFFICER HAD RAISE D THESE ISSUES AND ASSESSEE HAD REPLIED TO THAT THE LEARNED AR SUBMITT ED THAT ASSESSING OFFICER HAD NOT RAISED THESE ISSUES BUT SINCE, HE HAD EXAMI NED COMPLETE BOOKS OF ACCOUNT SO IT IS DEEMED THAT ASSESSING OFFICER HAD EXAMINED THESE ASPECTS ALSO. THE LEARNED AR SUBMITTED THAT THE FACTS AND C IRCUMSTANCES IN ITA NO.317 (ASR) 2014 ARE SIMILAR, THEREFORE, HE ARGUED THAT T HE APPEALS OF THE ASSESSEES BE ALLOWED. 3. THE LEARNED DR FILED A COPY OF ORDER SHEET AND S UBMITTED THAT NOTICE UNDER SECTION 143(2) WAS ISSUED ON 16.09.2010 AND A FTER FEW HEARINGS THE ASSESSMENT ORDER WAS PASSED ON 4.11.2011. HE FURTHE R SUBMITTED THAT NONE OF THE ORDER SHEET ENTRIES INDICATE ANY EXAMINATION ON THE ASPECTS RAISED BY CIT AND THEREFORE, THERE ARE THESE CASES WERE NO ENQUIR Y HAS BEEN MADE BY ASSESSING OFFICER. THE LEARNED DR SUBMITTED THAT S INCE ASSESSING OFFICER HAD PASSED ERRONEOUS ORDER WHICH IS PREJUDICIAL TO THE INTEREST OF REVENUE AND THEREFORE, THE COMMISSIONER OF INCOME TAX HAS RIGHT LY PASSED ORDER UNDER SECTION 263 AND IN VIEW OF THE ABOVE, IT WAS PRAYED THAT ORDERS PASSED BY THE CIT BE UPHELD. RELIANCE WAS PLACED ON THE FOLLOWING ORDERS: (I) MALABAR INDUSTRIAL CO. LTD. VS. CIT, 243 ITR 8 3 (SC) (II) RAMPYARI DEVI SARAOGI VS. CIT, 67 ITR 84 (SC) (III) SMT. TARA DEVI AGGARWAL VS. CIT, 88 ITR 323 ( SC) 4. ITA NOS. 317 & 318(ASR)/2014 ASST. YE AR 2009-10 4. THE LEARNED AR IN HIS REJOINDER SUBMITTED THAT N ONE OF THE ISSUES RAISED BY COMMISSIONER OF INCOME TAX HAS BEEN THE BASIS OF ADDITIONS IN THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER, IN VI EW OF THE ORDER UNDER SECTION 263 AND FILED A COPY OF ASSESSMENT ORDERS I N THIS RESPECT AND THEREFORE, HE ARGUED THAT ORDER UNDER SECTION 263 WAS BAD IN L AW. IN VIEW OF HIS SUBMISSIONS THE BENCH ASKED TO THE LEARNED AR AS TO IF NO ADDITIONS HAS BEEN MADE BY ASSESSING OFFICER ON THE ISSUES RAISED BY C OMMISSIONER UNDER SECTION 263 THEN THERE SHOULD NOT BE ANY GRIEVANCE TO THE A SSESSEE. IN REPLY TO THAT THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAD MADE ADDITIONS ON OTHER ISSUES AND IF THE ORDER OF CIT IS UPHELD, THEN THOS E ADDITIONS WILL SUSTAIN AND THAT IS WHY THE ASSESSEE PRAYED FOR QUASHING OF ORD ERS UNDER SECTION 263. 5. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROUG H THE MATERIAL PLACED ON RECORD. WE FIND FROM THE SUBMISSIONS OF THE LEAR NED AR IN HIS REJOINDER THAT ASSESSING OFFICER IN CONSEQUENT ASSESSMENT ORDERS, HAS NOT MADE ANY ADDITIONS ON THE ISSUES RAISED BY CIT, THEREFORE, I N OUR OPINION THE ASSESSEE HAS NO GRIEVANCE. AS REGARDS OTHER ADDITIONS MADE B Y ASSESSING OFFICER WHICH DO NOT FROM PART OF OBJECTIONS RAISED BY THE LEARNE D CIT, THE ASSESSEE HAS THE OPTION TO CHALLENGE THE LEGALITY OF THESE ADDITIONS BEFORE THE APPROPRIATE AUTHORITIES. IN VIEW OF THE ABOVE, THE APPEALS FILE D BY ASSESSEES AGAINST THE ORDER UNDER SECTION 263 HAS BECOME INFRUCTUOUS, AS THE ISSUES RAISED BY THE CIT DO NOT SURVIVE. MOREOVER, WE FIND THAT LEARNED AR WAS NOT ABLE TO DEMONSTRATE THAT ISSUES RAISED BY LEARNED CIT WERE EXAMINED BY ASSESSING 5. ITA NOS. 317 & 318(ASR)/2014 ASST. YE AR 2009-10 OFFICER AND ON THIS ACCOUNT ALSO THE APPEALS FILED BY ASSESSEES NEEDS TO BE DISMISSED. 6. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE ES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH OCTOBER, 2015. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTA NT MEMBER DATED: 10.10.2015. /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S MULKH RAJ & SONS, EAST MOHAN NAGA R, AMRITSAR. M/S. MULKH RAJ & CO., EAST MOHAN NAGAR, AMRITS AR. 2. THE COMMISSIONER OF INCOME TAX-I, AMRITSAR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.