ITO, BHARATPUR V. ALORA SERVICE STATION, BHARATPUR

ITA 331/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5217 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 07-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: P C PARWAL CA DHK
• Section: 143(3); 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 331/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO WARD- 2 BHARATPUR CUKE VS. M/S. ALORA SERVICE STATION KUMHER GATE BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAJFA 0367 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL , CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 05/8/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05 /08/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE REVENUE FILED AN APPEAL AGAINST THE ORDER OF T HE LD. CIT(A)-I, JAIPUR DATED 21-01-2016 FOR THE ASSESSMENT YEAR 20 08-09 RAISING THEREIN FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A) HAS ERRED ON FACTS AND CIRCUMSTANCES OF THE CASE IN QUASHING THE ORDER PAS SED BY THE AO U/S 143(3)/ 263 DESPITE FOLLOWING FACTS AND CIRCUMSTANCES OF THE CASE. (I) THAT THE ASSESSEE HAS PAID RS. 23,80,566/- T M/S. ANIL KUMAR HEMANT KUMAR UNDER THE HEAD HIRE CH ARGES CLAIMING THAT M/S. ANIL KUMAR HEMANT KUMAR HAS SUBMITTED DECLARATION IN FORM NO. 151 TO THE ASSESS EE FOR ITA NO. 331/JP/2016 ITO, WARD-2, VS. ALORA SERVICE STATION, BHARATPUR . 2 NON-DEDUCTION OF TDS AND THE ASSESSEE ACCEPTED THE SAME AND NOT MADE TDS ON HIRE CHARGES DESPITE THE FACT T HAT M/S. ANIL KUMAR HEMANT KUMAR IS A FIRM NOT IS NOT ELIGIB LE TO GIVE DECLARATION IN FORM NO. 151. (II) THAT THE ASSESSEE HAD CLAIMED NON SALARY TDS OF RS. 66,663/- ON INCOME OF RS. 19,94,490/- (25778+1736701) AND THAT THE ASSESSEE HAD RECEIVED RS. 17,36,701/- FROM BHARAT PETROLEUM CORPORATION LTD. WHICH HAD NOT BEEN DISCLOSED BY THE ASSESSEE IN ITS P&L A CCOUNT. (III) THAT NO EVIDENCE OF PAYMENT IN RESPECT OF OUTSTANDING LIABILITY OF RS. 557/- UNDER THE HEAD F BT WAS FURNISHED BY THE ASSESSEE. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED ITS RETURN OF INCOME OF RS. 2,09,780/- ON 25-09-2008. THE ASSESSM ENT WAS COMPLETED ON U/S 143(3) ON 14-12-2010. THE LD. CIT INVOKED TH E PROVISIONS OF SECTION 263 OF THE ACT AND CANCELLED THE ASSESSMENT ORDER MADE BY THE AO U/S 143(3) OF THE ACT AND DIRECTED THE AO TO MAK E FRESH ASSESSMENT. THE AO MADE ASSESSMENT U/S 143(3) READ WITH SECTION 263 OF THE ACT ON 14-02-2014 AND DETERMINED THE INCOME AT RS. 43,27,6 04/-. IT IS OBSERVED THAT THE ASSESSEE HAS CHALLENGED THE ORDER OF SECTI ON 263 BEFORE ITAT AND ITAT VIDE ITS ORDER DATED 5-12-2014 HAS QUASHED 263 ORDER BY HOLDING AS UNDER:- 2.10 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT M/S. BPCL AWARDED CONTRACT TO THE ASSESSEE SUBJECT TO ARRANGEMENT OF DEDICATED TANKER FOR SUPPLY OF PETROLEUM PRODUCTS. THIS WAS A RRANGED ITA NO. 331/JP/2016 ITO, WARD-2, VS. ALORA SERVICE STATION, BHARATPUR . 3 BY THE ASSESSEE BY WAY OF A TANKER OWNED BY ASSOCIA TE CONCERN. BPCL PAID THE TRANSPORTATION TO ASSESSEE W HICH IS CREDITED BY IT IN THE A/C OF AKHK ONLY AND TDS IS C LAIMED BY IT AS PER CERTIFICATE. FROM THE ASSESSMENT RECOR DS, IT EMERGES THAT THE AO ASKED FOR QUERIES WHICH HAVE BE EN REPLIED BY THE ASSESSEE. THE AO IN HIS ORDER HAS CL EARLY MENTIONED THAT RELEVANT RECORDS WERE PRODUCED AND V ERIFIED ON TEST CHECK BASIS AND THE ASSESSMENT WAS FRAMED A FTER DISCUSSIONS, THE INFORMATION/LETTER SUPPLIED BY THE ASSESSEE STANDS ON RECORD. THIS LEADS TO AN INFERENCE THAT A O HAS CONSIDERED ALL THE RELEVANT ASPECTS ABOUT THE ASSES SMENT, AND THERE IS NO CASE OF LACK OF ENQUIRY IN THIS BEHALF DURING ASSESSMENT. THE LEVEL OF ENQUIRY IN ASSESSMENT PROC EEDINGS IS ALWAYS A DEBATABLE PROPOSITION DEPENDING ON THE AUTHORITY CONCERNED. IT HAS BEEN HELD THAT CONCEPTUAL DIFFERE NCE ON THE MANNER OF INQUIRY CANNOT MAKE THE ASSESSMENT ORDER ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE . EVEN ON MERITS, THERE IS NO LOSS TO THE REVENUE INASMUCH AS IT IS NOT DISPUTED THAT TANKER RECEIPTS SURPLUS HAS BEEN SHOW N BY AKHK AND IS ASSESSED AT SAME RATE. ALL THE TRANSACT IONS ARE DULY DISCLOSED AND IT CANNOT BE HELD THAT AOS ORDE R IS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE . 2.11 APROPOS ISSUE OF SEC. 40(A)(IA), IT IS UNDISPUTED THAT THE TANKER WAS OWNED BY AKHK. THE ASSESSEE RECEIVED THE PAYMENTS FROM BPCL ON ITS BEHALF. THERE IS NO PA YMENT OF ANY SUM AS HIRE CHARGES, THEREFORE, SEC 40(A)(IA) I S NOT APPLICABLE. ALTERNATIVELY ALSO HON'BLE APEX COURT I N THE CASE OF HINDUSTAN COCA COLA BEVERAGES (P) LTD. VS. CIT ( SUPRA) CASE HAS CLEARLY HELD THAT IF THE TAXES ARE PAID BY THE RECIPIENT IN THAT CASE THERE IS NO LOSS TO THE REVENUE AND AS SESSEE CANNOT BE HELD IN DEFAULT. 2.12 IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES THA T THIS IS NOT A CASE OF LACK OF INQUIRY, RECORD INDICATES THA T ASSESSEE FURNISHED DETAILS IN THIS BEHALF ON A QUERY FROM AO . THE VIEW TAKEN BY AO IS A PLAUSIBLE AND JUSTIFIABLE VIE W. MERELY WRITING A SHORT ASSESSMENT ORDER CANNOT BE HELD TO BE AN ERROR AS LONG AS THE RECORD REFLECTS APPLICATION OF MIND; WE FIND MERIT IN THE ARGUMENTS OF LD. COUNSEL THAT THE RE IS NO PRESCRIBED RULE ABOUT THE LENGTH OF THE ORDER. THE PERCEPTION ITA NO. 331/JP/2016 ITO, WARD-2, VS. ALORA SERVICE STATION, BHARATPUR . 4 ABOUT THE MANNER OF INQUIRY VARIES FROM PERSON TO P ERSON; IF THE VIEW TAKEN IS ONE OF THE POSSIBLE VIEW THEN IT CANNOT BE HELD AS ERRONEOUS MERELY BECAUSE ANOTHER VIEW IS PO SSIBLE. THUS WE ARE OF THE VIEW THAT THE AOS ORDER IS NEIT HER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENU E, CONSEQUENTLY THE IMPUGNED ACTION OF THE LD. CIT U/S 263 IS NOT TENABLE WHICH IS QUASHED. 2.2 THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESS EE BY HOLDING AS UNDER:- 3.1.2 DETERMINATION (I) I HAVE CAREFULLY PERUSED THE SUBMISSION OF THE APPELLANT ;ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. DURING APPELLATE PROCEEDINGS, IT WAS SUBMIT TED BY THE APPELLANT THAT THE HON'BLE ITAT VIDE ITS ORDER DATED 5-12-2014 IN ITA NO. 487/JP/2013 FOR THE A.Y. 2008- 09 QUASHED THE ASSESSMENT ORDER PASSED BY THE LD. CIT, ALWAR U/S 263 OF THE ACT AND HENCE THE PRESENT ORDER PASS ED BY AO U/S 143(3)/263 ON 14-12-2014 DOES NOT SURVIVE. (II) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND IN VIEW OF THE ORDER OF HON'BLE ITAT AS STATED ABOVE, IT IS HELD THAT THE ORDER PASSED BY THE AO I N CONSEQUENCE TO ORDER PASSED BY LD. CIT U/S 263 DOES NOT SURVIVE AND HENCE QUASHED. 2.3 DURING THE COURSE OF HEARING THE LD. DR RELIED ON THE ORDER OF THE AO. 2.4 THE LD. AR RELIED ON THE ORDER OF THE LD. CIT( A). 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE COORDINAT E BENCH OF ITAT VIDE ITS ORDER DATED 5-12-2014 IN THE CASE OF THE ASSESSEE HAS QUASHED 263 ORDER ITA NO. 331/JP/2016 ITO, WARD-2, VS. ALORA SERVICE STATION, BHARATPUR . 5 AND THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESS EE BASED ON THE ITAT ORDER (SUPRA). IT IS FURTHER NOTED THAT THAT THE LD . CIT(A) HAS TAKEN INTO CONSIDERATION ALL THE ASPECTS OF THE ISSUE IN QUEST ION RAISED BEFORE HIM AND GRANTED RELIEF TO THE ASSESSEE. HENCE, I FIND NO IN FIRMITY IN THE ORDER OF THE LD. CIT(A) WHICH IS SUSTAINED. IN THIS VIEW OF THE MATTER, THE APPEAL OF THE REVENUE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 /08/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 /08/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD- 2, BHARATPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S. ALORA SERVICE STATION, BHARAT PUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 331/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR