Amiya Kumar Mishra, Koraput V. ITO, Jeypore

ITA 391/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4427 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 25-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-11-2010
• Court: TRIBUNAL
• Department Lawyers: J KHANRA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, (SMC) CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. / ITA NO. 391/CTK/2010 / ASSESSMENT YEAR 2005 - 06 SRI AMIYA KUMAR MISHRA, PROP. K/S.SESHARI SERVICE STATION, JAYANTIGIRI, BORIGUMA,DIST. KORAPUT. PAN: AFVPM 2022 H - - - VERSUS - INCOME - TAX OFFICER, WARD 1,JEYPORE. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : NONE / FOR THE RESPONDENT: / SHRI J.KHANRA, DR / ORDER (SMC) . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER . THIS APPEAL BY THE ASSESSEE AGITATES THE ORDER OF THE LEARNED COMMISSI ONER OF INCOME - TAX (APPEALS) IN CONFIRMING THE ADDITION U/S.143(3) BY THE ASSESSING OFFICER AMOUNTING TO 1,34,004 HOLDING THE SAME TO BE PURCHASE IN EXCESS TO REDUCE THE GROSS MARGIN. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE APPELLANT INSPITE OF SEVERA L ADJOURNMENTS AND NOTICES SERVED ON THE ASSESSEE. THEREFORE, I PROCEEDED TO DISPOSE OF THE APPEAL AFTER GOING THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND HEARING THE LEARNED DR. 3. THE BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE AGITATED BY THE ASSE SSEE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.1 43(3), THE ASSESSEE BEING A DEALER OF MOTOR SPIRITS AND DIESEL MANUFACTURED BY INDIAN OIL CORPORATION LTD., FILED THE R ETURN OF INCOME AMOUNTING TO 2,13,370.THE ASSESSING OFFICER SOUGHT TO OBTAIN INFORMATION FROM THE SUPPLIER OF MOTOR SPIRIT AND HIGH SPEED DIESEL, NAMELY, INDIAN OIL ITA NO.391/CTK/2010 2 CORPORATION LTD THAT THE PURCHASES BY THE ASSESSEE SHOULD BE 3,33,57,730 AGAINST WHICH THE ASSESSEE HAD ONLY SHOWN 3 ,28,99,123. IT WAS EXPLAINED BY THE ASSESSEE THAT THE ASSESSEE HAD REJECTED THE PURCHASE OF 5,92,611 TO INDICATE THE ACTUAL AMOUNT OF PURCHASE WHICH HAS BEEN SOLD BY IT WITH THE RESIDUAL CLOSING STOCK DECLARED AND ACCEPTED BY THE ASSESSING OFFICER. THE AS SESSEE HAD ALSO PURCHASED 1,34,004 WORTH FOR LUBRICANTS FROM THE LOCAL MARKET WHICH HAS BEEN HELD BY THE ASSESSING OFFICER AS EXCESS PURCHASE NOT SHOWN IN THE CLOSING STOCK. THE LEARNED CIT(A) CONSIDERED THE ASSESSEES EXPLANATION BUT CONFIRMED THE ASSESS ING OFFICERS ACCEPTANCE OF CANCELLATION ENTRIES BUT NOT FOR LOCAL PURCHASES. 4. THE LEARNED DR SUBMITTED THAT THE ASSESSING OFFICER HAD CONSIDERED THAT THE LOCAL PURCHASES FOR RECONCILIATION OF THE CANCELLED PURCHASES WAS A COLORABLE DEVICE TO REDUCE THE PROFIT TO DISALLOW THE LOCAL PURCHASES OF 1,34,004 MAY KINDLY BE CONFIRMED. 5. I HAVE VERIFIED THE CONTENTIONS OF THE AUTHORITIES BELOW AND AFTER HEARING THE LEARNED DR, I FIND NO MERIT IN THE REASONING AS CAN BE PERUSED IN THEIR RESPECTIVE ORDERS OF THE AO AND THE LEARNED CIT(A). THE ASSESSEE HA D SHOWN LESS PURCHASE THEN WHAT WAS ACTUALLY SOLD BY INDIAN OIL CORPORATION LTD., TO IT. THE ASSESSING OFFICER REVERSED THE FACT BY HOLDING THAT THE ASSESSEE HAD DONE MORE PURCHASES TO REDUCE THE GROSS MARGIN, WHICH DOES NOT APPEAR TO BE THE CONTENTION OF THE ASSESSEE WHEN HE SUBMITTED THE RECONCILIATION INDICATING THE CANCELLATION OF ENTRIES WITH RESPECT OF MOTOR SPIRIT AND HIGH SPEED DIESE L FROM INDIAN OIL CORPORATION LTD . THE LOCAL PETTY PURCHASES, THEREFORE, COULD NOT BE HELD TO BE FOR REDUCING THE GROSS MARGIN AS HAS BEEN CONSIDERED BY THE ASSESSING OFFICER AND SIMILARLY ACCEPTED AND CONFIRMED BY THE LEARNED CIT(A). THE LEARNED CIT(A) HELD THAT THE ASSESSEE HAD NOT GIVE N PURCHASE VOUCHERS FOR THE SAME WHICH THE ITA NO.391/CTK/2010 3 ASSESSING OFFICER HIMSELF HAS ACCEPTED IN VIEW OF THE FACT THAT THE LUBRICANTS PURCHASED ARE STATED TO BE MORE THAN 1,34,004 HAS BEEN ACCEPTED TO COMPUTE THE PURCHASE FOR RECONCILIATION THEREFORE WAS PROPERLY REN DERED ON THE BASIS OF WHICH THE ASSESSING OFFICER ACCEPTED THE RECONCILIATION FOR THE CANCELLATION OF ENTRIES AMOUNTING TO 5,92,611. IN ANY CASE, IT WAS ONLY ON ASSUMPTION AND PRESUMPTION THAT THE ASSESSING OFFICER HELD THAT THE ASSESSEE COULD NOT HAVE P URCHASED THEM FROM LOCAL MARKET IN EMERGEN CY SITUATION WHEN THE ASSESSEE W AS SPECIFICALLY RECONCILING ONLY THE PRODUCTS SOLD BY THE INDIAN OIL CORPORATION LTD. IN VIEW THEREOF, THE CONFIRMATION OF ADDITION OF 1,34,004 IS DIRECTED TO BE DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 26 TH APRIL, 2011 S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 26 TH APRIL, 2011 - C OPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : SRI AMIYA KUMAR MISHRA, PROP. K/S.SESHARI SERVICE STATION, JAYANTIGIRI, BORIGUMA,DIST. KORAPUT . 2 / THE RESPONDENT: INCOME - TAX OFFICER, WARD 1,JEYPORE. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.