M/s. Ashok Transport Company, Jodhpur V. ITO, Ward-1(1), Jodhpur

ITA 401/JODH/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9975 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 03-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K.C. BADHOK LD.
• Keywords: Revision of order; Set aside
• Section: 263; 143(3)

Judgement Text

1 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.401/JODH/2019 ( / ASSESSMENT YEAR: 2015-16) ASHOK TRANSPORT COMPANY C/O. RAJENDRA JAIN ADVOCATE 106, AKSHAY DEEP COMPLEX 5TH B ROAD, SARDARPURA JODHPUR, RAJASTHAN-342 001. / VS. INCOME TAX OFFICER - WARD - 1(1) JODHPUR RAJASTHAN. ./ ./PAN/GIR NO. AAVFA-0055-E ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI RAJENDRA JAIN (ADVOCATE) & MS RAKSHA BIRLA(CA)LD.ARS. REVENUE BY : SHRI K.C. BADHOK- LD. CIT- DR / DATE OF HEARING : 04/11/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. BY WAY OF THIS APPEAL, THE ASSESSEE CHALLENGES T HE VALIDITY OF REVISIONAL JURISDICTION U/S 263 AS EXERCISED BY LD. PR. COMMISSIONER OF INCOME-TAX-1, JODHPUR, [PR.CIT) FOR ASSESSMENT Y EAR (AY) 2 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 2015-16 VIDE ORDER DATED 06/11/2019. THE EFFECTIVE GROUNDS TAKEN BY THE ASSESSEE READ AS UNDER:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE ORDER BY LD. PR. CIT, JODHPUR IS BAD IN LAW AND BAD IN FACTS. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE NOTICE ISSUED U/S. 263 BY PR. CIT, JODHPUR WITHOUT MAKING ANY IND EPENDENT ENQUIRY TO FIND OUT WHETHER THE ORDER PASSED BY THE LD. AO AND HIS SATISFACTION WITH RESPECT TO THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE IS FOUND TO BE ERRONEOUS AS WELL AS PREJUDICED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID PR. CIT, JODHPUR ERRED IN HOLDING THAT THE ORDER PASSED BY T HE ID AO IS ERRONEOUS AS WELL AS PREJUDICED TO THE INTEREST OF REVENUE PARTI CULARLY, WHEN THE LD. AO PASSED THE ORDER AFTER MAKING PROPER ENQUIRY AS PER PROVISION OF LAW. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID PR.CIT, JODHPUR ERRED IN INVOKING PROVISION OF SECTION 263 OF THE ACT ON THE BASIS OF SURMISES AND CONJECTURES WITHOUT DISCLOSING ANY ERR OR IN THE ASSESSMENT ORDER PASSED BY THE LD.AO. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID PR.CIT, JODHPUR HAS ALSO ERRED IN RECORDING VARIOUS OBSERVA TION IN THE ORDER WHICH ARE CONTRARY TO THE MATERIAL AVAILABLE ON RECORD AND LA ID DOWN BY THE VARIOUS HONBLE COURTS. 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. THE JUDICIAL PRECEDENT S AS CITED DURING THE COURSE OF HEARING HAVE DULY BEEN DELIBERATED UP ON. OUR ADJUDICATION TO THE SUBJECT MATTER OF APPEAL WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. 3.1 THE MATERIAL FACTS ARE THAT THE ASSESSEE BEING RESIDENT FIRM WAS ASSESSED U/S. 143(3) ON 28/10/2017 AT RS.3.54 L ACS AFTER CERTAIN ADDITIONS / DISALLOWANCES. SUBSEQUENTLY, LD . PR. CIT, UPON PERUSAL OF CASE RECORDS AND INVOKING THE PROVISIONS OF SEC.263, OPINED THAT THE ORDER WAS PASSED WITHOUT MAKING PRO PER INQUIRIES OR VERIFICATION AND THEREFORE, THE SAME WOULD REQUIRE EXERCISE OF REVISIONAL JURISDICTION IN TERMS OF SEC.263. 3 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 3.2 THE SAID JURISDICTION WOULD STEM FROM THE OBSER VATION THAT OUTSTANDING FREIGHT CREDITORS REFLECTED BY THE ASSE SSEE INCLUDED ONE CREDITOR NAMELY SH. UGARA RAM S/O SH. GANGA RAM. AL THOUGH THE OUTSTANDING AMOUNT AGAINST THIS CREDITOR WAS RS.4,4 4,650/-, HOWEVER, THE CREDITOR CONFIRMED BALANCE ONLY FOR RS .84,650/-. THIS DISCREPANCY WAS NOT VERIFIED BY LD. AO AND THE EXPE NDITURE WAS OVER-STATED BY THE ASSESSEE TO THAT EXTENT AND THER EFORE, THE ORDER WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERES T OF THE REVENUE. 3.3 IN RESPONSE TO SHOW-CAUSE NOTICE, THE ASSESSEE SUBMITTED THAT TRUCK-WISE CONFIRMATION OF THE SAID CREDITOR W AS FILED SINCE THE ASSESSEE DEALT WITH CEMENT COMPANIES WHERE MANY DIF FERENT TRUCKS WERE USED FOR TRANSPORTATION. THE INFORMATION WAS R ECORDED TRIP- WISE AND TRUCK-WISE AS PER QUANTITY AND DISTANCE BE TWEEN THE STATION AND PLACE OF SUPPLY AND FOR ACCOUNTING PURP OSE CLUBBED TOGETHER WHERE-EVER NEEDED. IN SUPPORT, FRESH CONFI RMATION OF SH. UGARA RAM WAS FILED WHICH WAS IN RESPECT OF 4 DIFFE RENT TRUCKS. THE AMOUNT AGGREGATED TO RS.4,44,650/-. THE CREDITOR CO NFIRMED THAT THE EARLIER INFORMATION WAS SOUGHT IN RESPECT OF TR UCK NO. RJ04GB1481 FOR AN AMOUNT OF RS.84,650/-. HOWEVER, H E WAS MAINTAINING VEHICLE-WISE RECORD FOR DUE AMOUNT AND THE AMOUNT OF RS.4,44,650/- WAS IN RESPECT OF ALL THE VEHICLES OW NED BY HIM. 3.4 HOWEVER, LD. PR. CIT REJECTED THE SUBMISSIONS I N VIEW OF THE FACT THAT THE ASSESSEE DID NOT SUBMIT DOCUMENTARY E VIDENCES ABOUT OWNERSHIP OF SH. UGARA RAM OF THE REMAINING THREE T RUCKS AND THE AMOUNT DUE THEREON AND THE FACT OF OWNERSHIP REMAIN ED UNVERIFIABLE. THE LETTER ISSUED BY LD. AO TO SH. UG ARA RAM AT THE 4 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 TIME OF ASSESSMENT PROCEEDINGS DID NOT MENTION OF A NY AMOUNT OR PARTICULAR TRUCK. THEREFORE, THE ASSESSEE FAILED TO ESTABLISH THAT THE OUTSTANDING AMOUNT REPRESENTED GENUINE BUSINESS EXP ENDITURE. 3.5 DURING REVISIONAL PROCEEDINGS, THE ASSESSEE HAD FILED ANOTHER CONFIRMATION FROM SH. JORA RAM FOR RS.1,02,725/- WH ICH WAS NOT FILED AS WELL AS EXAMINED DURING 143(3) PROCEEDINGS AND THEREFORE, THE SAME WOULD ALSO MAKE THE ORDER ERRONEOUS AND PR EJUDICIAL TO THE INTEREST OF THE REVENUE. 3.6 FINALLY, INVOKING THE PROVISIONS OF CLAUSE (A) TO EXPLANATION-2 TO SEC.263 (1), THE ORDER WAS SET ASIDE ON THE STAT ED ISSUE AND LD. AO WAS DIRECTED TO EXAMINE THE ISSUE AFTER PROVIDIN G AN OPPORTUNITY OF THE HEARING TO THE ASSESSEE. 3.7 AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BE FORE US ASSAILING INVOCATION OF REVISIONAL JURISDICTION U/S 263. 4. UPON CAREFUL CONSIDERATION, IT IS QUITE EVIDENT FROM THE OBSERVATION OF LD. PR. CIT THAT THE CONFIRMATION OF SUNDRY CREDITORS WAS CALLED FOR BY LD. AO DURING THE ASSESSMENT PROC EEDINGS. THE TRUCK WISE DETAIL OF FREIGHT PAYABLE AT YEAR-END WA S FURNISHED BY THE ASSESSEE VIDE ANNEXURE-A DURING THE COURSE OF ASSES SMENT PROCEEDINGS. UPON PERUSAL OF THE SAME, WE FIND THAT THESE DETAILS ARE TRUCK-WISE DETAILS AND THE NAME OF SH. UGARA RA M APPEARS AGAINST 4 TRUCKS WHICH FORTIFY THE SUBMISSIONS THAT THE ASSESSEE MAINTAINED TRUCK WISE DETAILS AND THE AGGREGATE AMO UNT DUE TOWARDS THAT PARTY WAS RS.4,44,650/-. IN FACT THAT CREDITOR FILED AN AFFIDAVIT CONFIRMING THE TRUCK-WISE TOTAL AMOUNT DU E AGAINST THE ASSESSEE. THEREFORE, THE CONCERN RAISED BY LD. PR. CIT, IN OUR 5 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 CONSIDERED OPINION, IS WITHOUT ANY SUBSTANCE. THE O RDER COULD NOT BE SAID TO BE ERRONEOUS OR PREJUDICIAL TO THE INTER EST OF REVENUE ON THIS FACT. 5. SO FAR AS THE CONFIRMATION OF SH. JORA RAM IS CO NCERNED, WE FIND THAT THE ADDITION OF RS.1,02,725/- WITH RESPEC T TO THIS PARTY HAS ALREADY BEEN MADE BY LD.AO IN THE ASSESSMENT ORDER DATED 28/10/2017 AND THEREFORE, NON-CONSIDERATION OF THE SAME COULD NOT BE SAID TO BE PREJUDICIAL TO THE INTEREST OF REVENU E, IN ANY MANNER. 6. FINALLY, ON THE FACTS ARE CIRCUMSTANCES OF THE C ASE, WE DO NOT CONCUR WITH THE STAND OF LD. PR.CIT IN INVOKING JUR ISDICTION U/S 263. BY QUASHING REVISIONAL ORDER DATED 06/11/2019, WE A LLOW THE APPEAL. 7. IN NUTSHELL, THE APPEAL STANDS ALLOWED. ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. S SD/- SD/- (SANDEEP GOSAIN) (MA NOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , / DR, ITAT, JODHPUR 6. '+,- / GUARD FILE 6 ITA NO.401/JODH/2019 M/S ASHOK TRANSPORT COMPANY ASSESSMENT YEAR: 2015-16 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.