SHRI SUNIL BAKSHI, JAIPUR V. INCOME TAX OFFICER, WARD-6-4, JAIPUR

ITA 344/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2083 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 13-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: TDS; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 344/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S ON TIME CARRIERS 62, BURMESE COLONY, JAWAHAR NAGAR, JAIPUR CUKE VS. ITO, WARD-5(3), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAAF01853B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 04/09/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 22.12.2017 FOR ASSESSMENT YEAR 2009-10 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 73,105/- ON THE BASIS OF ENTRY IN F ORM NO. 26AS BY NOT ACCEPTING THE CONTENTION OF ASSESSEE THAT IT HAS NO T RECEIVED ANY INTEREST INCOME FROM SH. DEEPAK AGARWAL NOR ANY EVI DENCE WAS BROUGHT ON RECORD THAT ASSESSEE HAS ADVANCED ANY AM OUNT TO HIM. HE HAS FURTHER ERRED IN NOT DIRECTING TO ALLOW THE TDS CREDIT OF RS. 7,530/-. 1.1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N OBSERVING THAT AO HAS RECORDED THAT ASSESSEE IN ASSESSMENT PROCEEDING S HAS ADMITTED ITA NO. 344/JP/2018 M/S ON TIME CARRIERS, JAIPUR VS ITO, JAIPUR 2 THAT THIS INCOME WAS OMITTED TO BE INCLUDED IN THE RETURN OF INCOME UNINTENTIONALLY WHEREAS THERE IS NO SUCH ADMISSION BY THE ASSESSEE. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON PE RUSAL OF FORM NO. 26AS NOTICED THAT THE ASSESSEE HAS RECEIVED INTEREST OF RS. 73,105/- FROM SHRI DEEPAK AGARWAL AND WHICH HAS NOT BEEN OFFERED TO TA X IN THE RETURN OF INCOME. A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSES SEE AND IN RESPONSE, THE ASSESSEE DENIED ANY TRANSACTION WITH DEEPAK AGARWAL , HOWEVER, THE AO DIDNT ACCEPT THE SAME AND THE INTEREST INCOME OF RS. 73,1 05/- WAS BROUGHT TO TAX IN HANDS OF THE ASSESSEE. BEFORE THE LD. CIT(A), TH E ASSESSEE AGAIN DENIED ANY TRANSACTION WITH MR. DEEPAK AGARWAL AND ALSO FI LED AN AFFIDAVIT TO THIS EFFECT. THE LD. CIT(A) HOWEVER DID NOT FIND THE SA ME ACCEPTABLE AND THE ADDITION SO MADE BY THE AO WAS SUSTAINED. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE ASSESSEE HAD ADVANCED A SUM OF RS. 5,00,000/- TO M/S SONIA C REATION IN YEAR 2006 AND WHOSE PROPRIETOR IS MR DEEPAK AGARWAL. IT WAS ACCOR DINGLY SUBMITTED THAT INADVERTENTLY, THIS FACT HAS ESCAPED THE ATTENTION OF THE ASSESSEE DURING THE COURSE OF PROCEEDINGS BEFORE THE LOWER AUTHORITIES AND AS A RESULT, THE ASSESSEE HAS DENIED ANY TRANSACTION WITH MR DEEPAK AGARWAL. HOWEVER, ON REVIEW OF THE DOCUMENTATION AND THE BOOKS OF ACCOUN TS WHILE PREPARING FOR THE IMPUNGED APPEAL, IT WAS FOUND THAT THE ASSESSEE HAS IN FACT ENTERED INTO A TRANSACTION WITH M/S SONIA CREATION. IT WAS ACCO RDINGLY SUBMITTED BY THE LD. AR THAT THERE IS NO DISPUTE THAT THE ASSESSEE HAS E NTERED INTO A TRANSACTION WITH M/S SONIA CREATION WHOSE PROPRIETOR IS MR DEEP AK AGARWAL WHEREIN THE AMOUNT OF RS. 5,00,000/- WAS ADVANCED IN THE YEAR 2 006. IT WAS FURTHER SUBMITTED THAT FOR THE YEAR ENDED 31 ST MARCH, 2008, IN THE BOOKS OF ACCOUNTS, THE ASSESSEE HAS ACCOUNTED FOR THE ACCRUED INTEREST ON SUCH ADVANCE TO THE TUNE OF RS. 59,202/- AND IN THE YEAR ENDED 31 ST MARCH, 2010, THE SAID ACCRUED ITA NO. 344/JP/2018 M/S ON TIME CARRIERS, JAIPUR VS ITO, JAIPUR 3 INTEREST HAS BEEN WRITTEN OFF IN THE BOOKS OF ACCOU NTS AS THE SAME WAS NOT RECOVERABLE. IT WAS FURTHER SUBMITTED THAT THE ASS ESSEE HAS NEITHER ACCRUED NOR RECEIVED ANY INTEREST FOR THE FY ENDED 31 ST MARCH, 2009 AND THE ENTRY IN FORM NO. 26AS CANNOT BE MADE THE BASIS FOR MAKING T HE ADDITIONS IN THE HAND OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THA T SINCE THERE WAS NO POSSIBILITY OF RECOVERY OF INTEREST AMOUNT FOR THE YEAR ENDED MARCH, 2008, A FACT WHICH IS EVIDENT BY SUBSEQUENT WRITING OFF OF THE SAME IN THE FY ENDED MARCH 31, 2010, THE ASSESSEE HAS NOT ACCOUNTED FOR THE INTEREST FOR THE IMPUGNED YEAR IE, FY ENDED MARCH 31, 2009 AND EVEN IF, THE SAME WAS ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS, THE ASSESSE E WOULD HAVE WRITTEN OFF THE SAME ALONG WITH INTEREST FOR FY ENDED MARCH 31, 2008 IN THE SUBSEQUENT FY ENDED MARCH 31, 2010. IT WAS ACCORDINGLY SUBMITT ED BY THE LD AR THAT THE ADDITION SO MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) MAY KINDLY BE DELETED. 4. THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD. DR THAT TH E ASSESSEE HAS DENIED HAVING ANY TRANSACTION WITH MR DEEPAK AGARWAL BEFOR E THE LOWER AUTHORITIES AND NOW HAS COME UP BEFORE THE BENCH STATING THE AS SESSEE HAS IN FACT ENTERED INTO A LOAN TRANSACTION WAY BACK IN THE YEA R 2006 WITH M/S SONIA CREATION AND WHOSE PROPRIETOR IS SHRI DEEPAK AGARWA L. FURTHER, THE LD DR SUBMITTED THAT NOTHING HAS BEEN BROUGHT ON RECORD I N TERMS OF NON- RECOVERY OF THE INTEREST INCOME IN TERMS OF ANY DISPUTE BETW EEN THE PARTIES AND IT WAS ACCORDINGLY SUBMITTED THAT THE ORDER OF THE LOWER A UTHORITIES BE CONFIRMED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THOUGH BEFORE THE LOWER AUTHORITIES, THE ASSESSEE HAS DENIED HAVING ANY TRANSACTION WITH SHRI DEEPAK AGARWAL, HO WEVER BASED ON MATERIAL PRODUCED BEFORE US, IT IS CLEAR THAT ASSESSEE HAS I N FACT ENTERED INTO A LOAN TRANSACTION WITH M/S SONIA CREATION WHOSE PROPRIETO R IS SHRI DEEPAK AGARWAL. THEREFORE, AS FAR AS THE EXISTENCE OF TRANSACTION I S CONCERNED, THE SAME IS NO ITA NO. 344/JP/2018 M/S ON TIME CARRIERS, JAIPUR VS ITO, JAIPUR 4 MORE IN DISPUTE AND THE ASSESSEE HAS ACCEPTED THE S AME. HOWEVER, AS FAR AS THE EXISTENCE OF ANY DISPUTE BETWEEN THE PARTIES AN D NON-RECEIPT OF THE INTEREST INCOME IS CONCERNED AND WHETHER IT CAN BE SAID THAT INTEREST INCOME HAS NOT ACCRUED TO THE ASSESSEE FOR THE IMPUNGED AS SESSMENT YEAR, THE MATTER REQUIRES EXAMINATION AND WE HEREBY SET ASIDE THE SAME TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE SAME AFRESH AN D DECIDE AS PER LAW. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/09/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 04/09/2018 *GANESH KR VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - M/S ON TIME CARRIERS, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT - ITO, WARD-5(3), JAIPUR 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. 344/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.