ITO, Rohtak V. Sh. Virender Singh, Rohtak

ITA 3514/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7456 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 24-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAVEEN GUPTA
• Assessee Lawyers: J P CHANDRAKAR
• Keywords: Additional evidence
• Section: 142(1); 133(6); 148

Judgement Text

ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES H NEW DELHI BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER AND SHRI CHANDRAMOHAN GARG, JUDICIAL MEMBER ITA NO. 3514/DEL/2012 ASSTT.YEAR: 2009-10 INCOME TAX OFFICER, VS VI RENDER SINGH, 2113, WARD 1, ROHTAK. NEW HOUSING BOARD COLONY, ROHTAK. (PAN: AZBPS2156D) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI NAVEEN GUPTA, ADV. RESPONDENT BY: SHRI J.P. CHANDRAKAR, SR. DR O R D E R PER CHANDRAMOHAN GARG, J.M. THIS APPEAL HAVE BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), ROHTAK DATED 20.04.2012 IN APPEAL NO. 515/R TK/2011-12 FOR AY 2009-10. 2. THE REVENUE HAS RAISED ONLY ONE GROUND IN THIS A PPEAL WHICH READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD . CIT ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS. 34,78,299/- MADE BY THE A.O. ON ACCOUNT OF DIFFEREN CE IN GROSS RECEIPTS DECLARED IN PROFIT AND LOSS ACCOUNT AND AS PER FORM 26AS AS ASSESSEE FAILED TO FURNISHED ANY EVIDENCE I N SPITE OF ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 2 AMPLE OPPORTUNITIES PROVIDED TO HIM DURING ASSESSME NT PROCEEDINGS AND SUBMITTED THE ADDITIONAL EVIDENCE D URING APPELLATE PROCEEDINGS WHICH WERE ACCEPTED WITHOUT CONFRONTING THE SAME TO A.O. 3. BRIEFLY STATED THE FACTS GIVING RISE TO THIS APP EAL ARE THAT THE ASSESSEE DERIVES INCOME FROM CONTRACTS, PLYING OF TUCKS AND SALARY. INCOME FROM PLYING OF TRUCKS WAS ADMITTED U/S 44AE OF THE ACT. THE AS SESSEE FILED RETURN DECLARING INCOME OF RS.4,37,255/- FROM AFOREMENTIONED ALL THR EE HEADS. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTED THAT AS PER DE TAILS IN FORM NO. 26AS, THE ASSESSEE RECEIVED GROSS PAYMENT OF RS.85,02,220 WHE REAS IN THE RETURN OF INCOME, GROSS RECEIPT WAS SHOWN ONLY AT RS.49,23.92 1/- LEADING TO A DIFFERENCE OF RS.35,78,299/-. THE AO ISSUED A NOTICE U/S 148 OF THE ACT ON 21.2.2011. THE AO FURTHER OBSERVED THAT SINCE NO RETURN WAS FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT AND FURTHER AS NO INFORMATION WAS RECEIV ED IN RESPONSE TO NOTICE U/S 142(1) OF THE ACT, THE AO COMPLETED THE ASSESSMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD BEFORE HIM. THE AO CONCLUDED T HAT AS PER FORM NO.16A, THE ASSESSEE RECEIVED PAYMENT FROM M/S ARYAN COAL B ENEFACTORS LTD., M/S MAHANADI COAL TRANSPORT, ROHTAK AND WHEN INQUIRIES FROM THESE PARTIES WERE MADE BY WAY OF NOTICE U/S 133(6) OF THE ACT, THEN N OTICE TO M/S MAHANADI COAL TRANSPORT WAS RECEIVED BACK UNSERVED AND INFORMATIO N FROM M/S ARYAN COAL BENEFACTORS LTD. WAS RECEIVED BY THE AO. THE AO FI NALISED THE ASSESSMENT WITH A CONCLUSION THAT SINCE THERE WAS A DIFFERENCE IN THE GROSS PAYMENTS RECEIVED AND SHOWN IN THE RETURN OF INCOME, THEREFO RE, AN AMOUNT OF ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 3 RS.35,78,299/- WAS ADDED TO THE RETURNED INCOME OF THE ASSESSEE IN ABSENCE OF ANY DETAIL OR EXPLANATION FROM THE ASSESSEE. 4. BEING AGGRIEVED BY THE ABOVE ASSESSMENT ORDER, T HE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A)-ROHTAK WHICH WAS ALLOWED B Y PASSING THE IMPUGNED ORDER AND THE AO WAS DIRECTED TO VERIFY THE ACTUAL AMOUNT OF RECEIPT BY THE ASSESSEE AND TO ALLOW THE SAME AS PER OUTCOME OF TH E VERIFICATION. NOW, THE AGGRIEVED REVENUE IS BEFORE THIS TRIBUNAL IN THIS S ECOND APPEAL WITH THE SOLE GROUND AS REPRODUCED HEREINABOVE. 5. LD. DR SUPPORTING THE ASSESSMENT ORDER SUBMITTED THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICE U/S 148 AND 142(1) OF TH E ACT AND DID NOT FILE ANY RETURN AND EXPLANATION TOWARDS DIFFERENCE IN THE GR OSS PAYMENTS RECEIVED BY THE ASSESSEE AND SHOWN IN THE RETURN OF INCOME, THEREFO RE, THE AO WAS RIGHT IN MAKING ADDITION IN THIS REGARD IN ABSENCE OF ANY EX PLANATION OR DETAILS FROM THE ASSESSEE. THE DR PRAYED THAT IMPUGNED ORDER MAY BE SET ASIDE BY RESTORING THAT OF THE AO BECAUSE THE CIT(A) WITHOUT ANY BASIS ALLO WED THE CLAIM OF THE ASSESSEE AND DIRECTED THE AO TO VERIFY THE SAME AND TO ALLOW ACCORDINGLY. 6. REPLYING TO THE ABOVE, LD. COUNSEL OF THE ASSESS EE REITERATED ITS ARGUMENTS AND CONTENTIONS PLACED BEFORE THE CIT(A) THROUGH LE TTER DATED 23.3.2012 AND 9.4.20-12 AND CONTENDED THAT FIRST OF ALL, THE AO A DOPTED A FIGURE OF RS.85,02,220 WHICH IS APPARENTLY WRONG AS PER FORM NO. 26AS FILED WITH THE RETURN OF INCOME WHICH WAS ACTUALLY RS.78,93,564. LD. COUNSEL FURTHER ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 4 SUBMITTED THE BIFURCATION OF THIS AMOUNT AND EXPLAI NED THAT RS.49,23,921/- WAS THE GROSS RECEIPT SHOWN AS PER P&L ACCOUNT FROM CON TRACT BUSINESS WHEREAS RS. 29,69,643 WAS THE RECEIPT OF ASSESSEE ON ACCOUNT OF FREIGHT OF GOODS CARRIER. LD. COUNSEL VEHEMENTLY CONTENDED THAT THERE WAS NO CONC EALMENT ON THE PART OF ASSESSEE AS THE ASSESSEE HAD TWO BUSINESSES VIZ. CO NTRACT BUSINESS AND FREIGHT OF GOODS CARRIER BUSINESS WHICH WAS DULY SHOWN IN THE RETURN OF INCOME FILED AT PAGE 21 TO 23 OF THE PAPER BOOK DATED 3.4.2012 BEFO RE THE CIT(A). LD. COUNSEL SUPPORTING THE IMPUGNED ORDER SUBMITTED THAT THERE IS NO VALID REASON TO INTERFERE WITH THE IMPUGNED ORDER AS THE AO HAD NOT CARRIED OUT ANY INQUIRIES WITH M/S MAHANADI COAL TRANSPORT AFTER THE NOTICE U /S 133(6) WAS REFUSED EVEN THOUGH THIS ENTITY WAS LOCATED LOCALLY AT ROHTAK. 7. ON CAREFUL CONSIDERATION OF ABOVE CONTENTIONS AN D SUBMISSIONS OF BOTH THE PARTIES AND CAREFUL PERUSAL OF THE RELEVANT MAT ERIAL PLACED ON RECORD BEFORE US, WE OBSERVE THAT THE CIT(A) NOTICED THAT TOTAL R ECEIPTS OF THE ASSESSEE AS PER FORM NO. 26AS WERE ONLY RS.78,93,564 WHICH WAS WRON GLY TAKEN BY THE AO AS RS.85,02,220. THE CIT(A) FURTHER NOTICED THAT THE ASSESSEE MAINTAINED AUDITED BOOKS OF ACCOUNTS ONLY IN RESPECT OF CONTRACT BUSIN ESS WITH M/S ARYAN COAL BENEFACTORS LTD. FROM WHOM RS.49,23,921 WAS RECEIVE D. THIS FACT HAS NOT BEEN DISPUTED BY THE LD. DR, RATHER IT WAS ACCEPTED BY T HE AO HIMSELF. WE FURTHER NOTE THAT FOR CONTRACT OF PLYING OF GOODS CARRIER, NO BOOKS OF ACCOUNT WERE MAINTAINED BY THE ASSESSEE AS THE INCOME WAS DECLAR ED THEREFROM U/S 44AE OF ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 5 THE ACT WHICH IS ALSO EVIDENT FROM FORM NO. 16A OF THE CONTRACT FOR PLYING OF GOODS CARRIER THAT THE ASSESSEE RECEIVED RS.29,69,6 43/- WHICH WAS NOT INCORPORATED IN THE BOOKS OF ACCOUNTS AS THE INCOME WAS OFFERED TO TAX U/S 44A OF THE ACT. THE CIT(A) ALSO NOTICED THAT THE TOTAL RECEIPTS OF THE ASSESSEE THUS CAME TO RS.78,93,564/- ON WHICH TDS HAS BEEN DULY D EDUCTED BY THE PAYER AND, THEREFORE, THE RECEIPTS UPTO THIS EXTENT STOOD ACCE PTED AS EXPLAINED. FROM THE LAST PART OF THE IMPUGNED ORDER, WE OBSERVE THAT TH E CIT(A) DIRECTED THE AO TO VERIFY THE RECEIPTS FROM M/S MAHANADI COAL TRANSPOR T AND TO ALLOW THE SAME ACCORDINGLY. UNDER THESE CIRCUMSTANCES, WE ARE UNA BLE TO SEE ANY AMBIGUITY, PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE W ITH THE IMPUGNED ORDER. THEREFORE, WE ARE INCLINED TO HOLD THAT THIS GROUND OF THE REVENUE BEING DEVOID OF MERITS DESERVES TO BE DISMISSED AND WE DISMISS T HE SAME. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19/12/2014. SD/- SD/- (N.K. SAINI) (CHANDRAMOHA N GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 19 TH DECEMBER, 2014 GS ITA NO.3514/DEL/2012 ASSTT.YEAR: 2009-10 6 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. C.I.T.(A) 4. C.I.T. 5. DR BY ORDER AS STT. REGISTRAR