DCIT, Cuttack V. Kamlesh Kumar Jain, Jajpur

ITA 412/CTK/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3672 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 09-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Section: 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO. 412 / CTK /20 15 ( / ASSESSMENT YEAR : 2008 - 2009 ) DCIT,CIRCLE - 1(1), CUT TACK VS. SHRI KAMLESH KUMAR JAIN, PROP M/S. JAIN T RANSPO R T, C H ANDIKHOLE, JAJPUR ./ ./ PAN/GIR NO. : A EJPJ 7984 H ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI A.K.M O HAPATRA, CITDR /AS SESSEE BY : NONE / DATE OF HEARING : 25 / 0 7 /201 7 / DATE OF PRONOUNCEMENT 28 / 0 7 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(A), CUTTACK , PASSED IN ITA PPEAL NO. 077 /2014 - 15, DATED 20.07.2015 , U/S. 147/ 143(3) R.W.S.250 OF THE INCOME TAX ACT. 2. THE REVENUE HAS RAISED THE SOLE SUBSTANTIVE GROUND THAT THE CIT(A) ERRED IN CONSIDERING THE ASSESSEES SUBMISSIONS AND HAS NOT CALLED FOR THE R EMAND REPORT AND COMMENTS FROM THE AO WHICH ARE IN VIOLATION OF PROVISIONS OF RULES 46A OF THE I.T.RULES. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MATTER WAS CALLED FOR HEARING. HOWEVER, AN ADJOURNMENT APPLICATION WAS PLACED ON RECORD BY THE ASS ESSEE SEEKING FOR ADJOURNMENT OF HEARING ON THE GROUND THAT LD. AR OF THE ASSESSEE IS SUFFERING FROM HIGH FEVER AND WOULD NOT BE ABLE TO ATTEND THE SAME, WHICH, IN OUR CONSIDERED OPINION, IS NOT A PLAUSIBLE ONE AND, THUS, WE REJECT THE APPLICATION AND PROC EED TO DISPOSE ITA NO. 412 /20 15 2 OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND THE SUBMISSIONS OF LD. DR. 4 . BRIEF FACTS OF THE CASE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPORTATION AND CONSTRUCTION ACTIVITIES AND FILED THE RETURN OF INCOME O N 31.10.2008 DECLARING THE TOTAL INCOME AT RS.68,98,620/ - , AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT AND THE ASSESSMENT WAS COMPLETED U/S.143(3) ON 31.12.2010 ASSESSING TOTAL INCOME AT RS.1,14,19,200/ - . SUBSEQUENTLY , T HE AO HAS REASON T O BELIEVE THAT THERE IS ESCAPEMENT OF INCOME ON COMPARISON WITH FORM NO. 26AS AND THE DIFFERENCE IN THE RECEIPTS SHOULD BE OFFERED IN THE FINANCIAL STATEMENTS AND THE AO ISSUED NOTICE U/S.148 OF THE ACT AND SUBSEQUENTLY NOTICE U/S.143(2) & 142(1) OF THE AC T WERE ISSUED . IN COMPLIANCE TO THE SAME, LD. AR APPEARED FROM TIME TO TIME AND FURNISHED THE RECONCILIATION OF DIFFEREN CE OF GROSS RECEIPTS AND AMOUNT DISCLOSED IN FORM NO. 26AS. BUT T HE AO WAS NOT SATISFIED WITH THE SUBMISSIONS AND THE DETAILS SUBMITTED B Y THE ASSESSEE AND FINALLY MADE ADDITION S AND ASSESSED INCOME OF RS.5,57,68,580/ - AND PASSED ORDER U/S.143(3) R.W.S147 OF THE ACT, DATED 30.03.2014. 5 . AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) CONSIDE RED THE GROUNDS RAISED BY THE ASSESSEE AND THE SUBMISSIONS MADE IN THE COURSE OF APPELLATE PROCEEDINGS AND VARIOUS DOCUMENTS FILED BEFORE HIM AND FOUND THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE ITS CLAIM WITH PROPER EVIDENCE ON ITA NO. 412 /20 15 3 RECONCILIATION AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND OBSERVED AT PAGE 3 PARA 5 OF THE ORDER AS UNDER : - 5. REASONS FOR THE DECISION: THE APPELLANT DURING APPEAL HEARING SUBMITTED THAT THE MAJOR DIFFERENCE OF RS.11,48,87,095/ - OCCURRED BECAUSE OF WRONG ENTRY OF ONE T RANSACTION IN TDS RETURN FILED BY ONE PRINCIPAL CONTRACTOR. THE APPELLANT FURTHER SUBMITTED THAT THE PRINCIPAL CONTRACTOR IN THE MEANWHILE HAS RECTIFIED THE MISTAKES BY FILING REVISED TDS RETURN. THE AO IS DIRECTED TO VERIFY THE SAME AND GIVE CREDIT TO THE APPELLANT IF FOUND CORRECT. AS FAR AS FURTHER DIFFERENCE OF RS.59,07,498/ - IN GROSS RECEIPT IS CONCERNED, THE APPELLANT SUBMITTED THAT THE SAME WERE QUICK LIFTING CHARGES FORWARDED BY THE PRINCIPAL CONTRACTORS TO THE APPELLANT WHICH WERE DIRECTLY PAID TO TRUCK OWNERS. THE PRINCIPAL CONTRACTORS HAVE DEDUCTED TDS FROM SUCH PAYMENT WHEREAS T HE SAME WERE NOT ACCOUNTED FOR BY THE APPELLANT. THE APPELLANT HAD SUBMITTED LEDGER COPIES OF BOTH THE PRINCIPAL CONTRACTORS DEBITING THE CONTRACT RECEIPT AND RECEIPTS ON ACCOUNT OF QUICK LIFTING CHARGES. THE AO IS DIRECTED TO DELETE THE ADDITION. 6 . BEING AGGRIEVED WITH THE ORDER OF CIT(A), THE REVENUE HAS FILED AN APPEAL WITH THE TRIBUNAL. 7 . LD. DR SUBMITTED THAT THE CIT(A) ERRED IN ACCEPTING THE SUBMISSIONS OF THE AS SESSEE AND NOT COMPLIED WITH THE PROVISIONS OF RULE 46A OF THE I.T. RULES IN RESPECT OF EVIDENCE FILED IN SUPPORT OF GROSS RECEIPTS BY THE ASSESSEE AND PRAYED FOR ALLOWING THE APPEAL . 8 . NONE APPEARED ON BEHALF OF THE ASSESSEE. 9 . WE HEARD THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE , THE CONTENTION OF LD. DR THAT CIT(A) HAS DECIDED THE ISSUE WITHOUT CALLING FOR ANY INFORMATION /COMMENTS FROM THE AO NOR REMAND REPORT, WHICH IS NECESSARY FOR DISPOSAL OF THE APPEAL. THE L D. CIT(A) DEALT ON THE SUBMISSIONS REFERRED AT PAGE 2 OF THE ORDER . WE FIND STRENGTH IN THE CONTENTION S OF LD. DR. WHILE THE LD. CIT(A) DECID ING THE ITA NO. 412 /20 15 4 APPEAL, SHOULD HAVE CALLED FOR REMAND REPORT FROM THE AO AND PROVIDED AN OPPORTUNITY TO VERIFY THE DETAILS FILED I N THE APPELLATE PROCEEDINGS . C ONSIDERING THE APPARENT FACTS AND MATERIAL ON RECORD, WE SET ASIDE THE ORDER OF CIT(A) AND REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF AO TO VERIFY AND PASS THE ORDER AFRESH AND CONSIDERING THE MATERIAL SUBMITTED BY THE AS SESSEE IN THE APPELLATE PROCEEDINGS. NEVERTHELESS TO SAY THAT THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING BEFORE PASSING THE ORDER. 10 . THUS, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN C OURT ON THIS 28 /07 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 28 / 0 7 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - DCIT,CIRC LE - 1(1), CUTTACK 2. / THE RESPONDENT - SHRI KAMLESH KUMAR JAIN, PROP M/S. JAIN TRANSPORT, C H ANDIKHOLE, JAJPUR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//