Sh.Ram Saran Dass, Chandigarh V. The Addl Commissioner of Income Tax, Chandigarh

ITA 360/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8988 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 360/CHD/2016 ASSESSMENT YEAR: 2008-09 SHRI RAM SARAN DAS, VS THE ADDL. CIT, HOUSE NO. 325, RANGE 3, SECTOR 21-C, CHANDIGARH. CHANDIGARH. PAN: AANPD3905G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARRY RIKHY RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 02.11.2016 DATE OF PRONOUNCEMENT : 09.11.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-1 CHANDIGARH DATED 22.09. 2015 FOR ASSESSMENT YEAR 2008-09. 2. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES. THE ASSESSEE HAS RECEIVED IMPUGNED ORDER ON 12.09.2 015, HOWEVER, APPEAL IS FILED IN THE OFFICE OF THE TRIBU NAL ON 12.04.2016. ACCORDING TO THE OFFICE, APPEAL IS TIM E BARRED BY 123 DAYS. THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY EXPLAINING THEREIN THAT ASSESS EE IS 2 SENIOR CITIZEN AGED ABOUT 80 YEARS AND HAS UNDERGON E KNEE REPLACEMENT SURGERY AND WAS SUFFERING FROM SEV ERE BACK PAIN LEADING TO DIFFICULTY IN WALKING AND SUGG ESTED BED REST BY THE DOCTOR. THE APPLICATION IS SUPPORT ED BY AFFIDAVIT OF THE ASSESSEE AND MEDICAL CERTIFICATE O F THE DOCTORS WHO HAVE ADVISED STRICT BED REST. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE DEL AY IN FILING APPEAL MAY BE CONDONED. THE LD. DR, HOWEVER , DID NOT CONTRIBUTE MUCH ON THIS ASPECT. 3. CONSIDERING EXPLANATION OF THE ASSESSEE, SUPPORT ED BY AFFIDAVIT AND MEDICAL CERTIFICATES, I AM SATISFI ED THAT ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN NOT F ILING THE APPEAL WITHIN THE PERIOD OF LIMITATION. THE DE LAY IN FILING APPEAL IS, THEREFORE, CONDONED. 4. GROUND NOS. 1 AND 4 ARE GENERAL AND NEED NO ADJUDICATION. 5. ON GROUND NO.2, ASSESSEE CHALLENGED THE ADDITION OF RS. 6,33,985/- ON ACCOUNT OF DIFFERENCE BETWEEN PROFESSIONAL RECEIPTS AS PER TDS CERTIFICATES AND A MOUNT CREDITED IN THE PROFIT & LOSS ACCOUNT. THE ASSESSE E IS ADVOCATE BY PROFESSION AND HAS BEEN FOLLOWING MERCA NTILE SYSTEM OF ACCOUNTING. THE ASSESSING OFFICER RECONC ILED TDS CERTIFICATES FILED BY THE ASSESSEE WITH THE AMO UNT OF TOTAL PROFESSIONAL RECEIPTS EARNED DURING THE YEAR UNDER CONSIDERATION. THE TOTAL PROFESSIONAL RECEIPTS AS PER TDS 3 CERTIFICATES COMES OUT TO RS. 34,50,766/-, HOWEVER, IN THE PROFIT & LOSS ACCOUNT AN AMOUNT OF RS. 28,16,781/- WAS SHOWN AS PROFESSIONAL RECEIPTS. THE DIFFERENCE OF RS. 6,33,985/- BEING THE DIFFERENCE BETWEEN PROFESSIONA L RECEIPTS AS PER TDS CERTIFICATE AND THAT CREDITED I N THE PROFIT & LOSS ACCOUNT WAS NOT RECONCILED BEFORE ASS ESSING OFFICER, THEREFORE, ADDITION OF RS. 6,33,985/- WAS MADE AS PER TDS CERTIFICATE. THE ASSESSEE DID NOT OFFER AN Y COMMENTS BEFORE LD. CIT(APPEALS), THEREFORE, ADDITI ON WAS CONFIRMED. 6. AFTER HEARING LD. REPRESENTATIVES OF BOTH THE PA RTIES, I AM NOT INCLINED TO INTERFERE WITH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE HAS FILED COPIES O F FORM NO. 16A IN THE PAPER BOOK WHICH CLEARLY SUPPORT THE FINDINGS OF AUTHORITIES BELOW THAT ASSESSEE HAS RECEIVED/CREDITED THE PROFESSIONAL RECEIPTS IN THE YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE IS MAINTAI NING ACCOUNTS ON MERCANTILE BASIS, THEREFORE, THE ENTIRE AMOUNT PAID/CREDITED IN THE YEAR UNDER CONSIDERATIO N SHALL HAVE TO BE OFFERED AS INCOME IN ASSESSMENT YE AR UNDER APPEAL. THE LD. COUNSEL FOR THE ASSESSEE MER ELY SUBMITTED THAT THE DIFFERENCE OF AMOUNT HAS BEEN OF FERED FOR TAXATION IN SUBSEQUENT YEAR, HOWEVER, IT IS NO GROUND TO OFFER LESSER PROFESSIONAL RECEIPT IN ASSESSMENT YEAR UNDER APPEAL. IN THE ABSENCE OF ANY EXPLANATION BE FORE AUTHORITIES BELOW AS WELL AS BEFORE ME, I AM NOT IN CLINED TO INTERFERE WITH THE ORDERS OF AUTHORITIES BELOW. THIS 4 GROUND OF APPEAL OF THE ASSESSEE IS ACCORDINGLY, DISMISSED. 7. ON GROUND NO. 3, ASSESSEE CHALLENGED ADDITION OF RS. 7,78,197/- ON ACCOUNT OF PROFIT ON JUDICIAL PAPER. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD RECE IVED JUDICIAL PAPER FEES AMOUNTING TO RS. 12,46,561/- WH ICH WAS TAKEN TO THE BALANCE SHEET AND HAS NOT BEEN CRE DITED INTO PROFIT & LOSS ACCOUNT. IT WAS FOUND THAT ASSE SSEE HAD ALSO PURCHASED JUDICIAL PAPERS FOR RS. 4,68,364 /- DURING THE YEAR UNDER CONSIDERATION. IN VIEW OF TH E SAME, ASSESSING OFFICER HAS TAKEN THE NET AMOUNT OF RS. 7,78,197/- AS REVENUE RECEIPT AND HAD ADDED BACK TH E SAME TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF PR OFIT EARNED ON FEES RECEIPT FROM VARIOUS PARTIES ON ACCO UNT OF JUDICIAL PAPER. 8. THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) T HAT PAYMENTS RECEIVED FROM ICICI BANK LTD. UNDER THE HE AD COURT FEES IS THE AMOUNT WITH WHICH THE JUDICIAL PAPERS HAVE BEEN PURCHASED FOR FILING OF CIVIL SUITS AGAIN ST DEFAULTERS OF THE BANK. THE ASSESSEE RAISED BILLS FOR JUDICIAL PAPER FOR THE DEFAULTING CUSTOMERS AND THE BANK CREDITED THE REQUIRED AMOUNT AND ASSESSEE PURCHASED THE JUDICIAL PAPER FOR THE SAME. IT IS NOT INCOME OF T HE ASSESSEE. THE LD. CIT(APPEALS), HOWEVER, NOTED THA T IT IS A SELF SERVING STATEMENT OF THE ASSESSEE BECAUSE ASSE SSEE HAS NOT PRODUCED ANY EVIDENCE IN SUPPORT OF THE S AME TO 5 CONSIDER THAT RECEIPT ON ACCOUNT OF COURT FEES IS N OT IN THE NATURE OF REVENUE RECEIPT. THE LD. CIT(APPEALS), ACCORDINGLY, DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. 9. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM OF THE VIEW MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF TH E ASSESSING OFFICER. THE ASSESSEE ON THIS ISSUE HAS NOT FILED ANY REPLY BEFORE ASSESSING OFFICER AND HAS NO T EXPLAINED THIS ISSUE AT ALL. THE ASSESSEE FOR THE FIRST TIME CAME UP WITH THE EXPLANATION BEFORE LD. CIT(APPEALS ) THAT PAYMENTS WERE RECEIVED FROM ICICI BANK LTD. UNDER T HE HEAD COURT FEES FOR PURCHASE OF JUDICIAL PAPERS F OR FILING OF THE SUITES AGAINST DEFAULTERS OF THE BANK AND CL AIMED THAT IT IS NOT INCOME OF THE ASSESSEE. THE LD. COU NSEL FOR THE ASSESSEE REFERRED TO PB-2 WHICH IS THE APPOINTM ENT LETTER OF THE ASSESSEE AS AN ADVOCATE BY ICICI BANK IN WHICH IT IS CLARIFIED THAT FOR COURT FEES STAMP PAY ABLE IN ANY MATTER, ASSESSEE SHALL PROVIDE THE BANK BILLS F OR SAME. IT MAY NOT BE INCOME OF ASSESSEE. PB-6 IS T HE COPY OF BALANCE SHEET OF THE ASSESSEE IN WHICH THE AMOUN T IN QUESTION OF RS. 12,46,561/- HAVE BEEN SHOWN ON LIA BILITY SIDE AS JUDICIAL PAPER RECEIPTS. PB-33 IS JUDICIAL PAPER FEES RECEIVED ACCOUNT. IT WOULD, THEREFORE, PRIMA-F ACIE SHOW THAT ASSESSEE RECEIVED THE AMOUNT IN QUESTION UNDER THE HEAD JUDICIAL STAMP PAPER FEES FOR FILING OF THE CIVIL 6 SUITES ON BEHALF OF THE BANK AGAINST DEFAULTERS. T HE AMOUNT IS NOT SHOWN AS INCOME BUT HAS BEEN SHOWN IN THE LIABILITY SIDE BECAUSE AFTER RECEIPT OF THE AMOUN T IN QUESTION, THE ASSESSEE WOULD BE REQUIRED TO PURCHAS E STAMP PAPER FOR FILING OF THE CIVIL SUITES AGAINST THE DEFAULTERS OF THE BANK. THE ASSESSEE, HOWEVER, DID NOT FILE ANY EVIDENCE OR EXPLANATION BEFORE ASSESSING O FFICER AND DID NOT EXPLAIN THIS ISSUE AT ALL. THE LD. COU NSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR RE-CONSIDERAT ION AND HAS SUBMITTED THAT ASSESSEE WOULD PRODUCE THE RELEVANT DETAILS ALSO TO SHOW THAT STAMP PAPERS HAV E BEEN PURCHASED LATER ON FOR FILING OF THE SUITES AGAINST DIFFERENT PARTIES. 10. CONSIDERING THE ABOVE FACTS AND DISCUSSION, IT IS CLEAR THAT THE AMOUNT RECEIVED UNDER THIS HEAD HAVE BEEN SHOWN AS LIABILITY AND SHALL HAVE TO BE ADJUSTED AG AINST PURCHASE OF JUDICIAL STAMP PAPERS. THEREFORE, ONE MORE CHANCE COULD BE GIVEN TO THE ASSESSEE TO EXPLAIN TH IS ISSUE BEFORE ASSESSING OFFICER FOR FINALIZATION IN THE IN TEREST OF JUSTICE. I, ACCORDINGLY, SET ASIDE THE ORDERS OF A UTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF ASSESSI NG OFFICER WITH DIRECTION TO RE-DECIDE THIS ISSUE BY G IVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE ADEQ UATE EVIDENCE AND MATERIAL BEFORE ASSESSING OFFICER FOR FINAL 7 ADJUDICATION OF THE ISSUE. THIS GROUND OF APPEAL O F THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 9 TH NOVEMBER,2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH