M/s. Essen Construction, Bhubaneswar V. DCIT, Circle-2(1), Bhubaneswar

ITA 426/CTK/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4353 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Section: 63

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. 426 /CTK/201 6 ( / ASSESSMENT YEAR : 20 07 - 20 08 ) M/S ESSEN CONSTRUCTION, PLOT NO.S - 2 ,A - 2, 42,43 & 44, MANCHESWAR INDUSTRIAL ESTATE, RASULGARH, BHUBANESWAR VS. DCIT, CIRCLE - 2(1), BHUBANESWAR ./ ./ PAN/TAN NO. : AACFE 0760 H ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : S HRI BIBEKANANDA MOHANTY ,AR /REVENUE BY : SHRI D.K.PRADHAN , DR / DATE OF HEARING : 12 / 0 2 /201 8 / DATE OF PRONOUNCEMENT 14 / 0 2 /201 8 / O R D E R PER SHRI N.S.SAINI , A M : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 3 , BHUBANESWAR , DATED 24.10.2016 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. THAT, THE ASSESSMENT ORDER U/S.143(3)/147 OF THE INCOME TAX ACT.,1961 IS AGAINST LAW, WEIGHT OF EVIDENCES AND PROBABILITIES OF THE CASE. 2. THAT, THE LEARNED ASSESSING OFFICER HAS ARBITRARILY DISALLOWED 20% OF THE PAYMENT MADE IN CASH I.E. RS.3,07,958.00 WITHOUT CONSIDERING THE BUSINESS COMPULSION. HOWEVER, THE FACT IS THAT, MOST OF THE PAYEES WERE MORE THAN ON E AND INSISTED FOR CASH PAYMENT AND FURTHER THAT ALL THE TRANSACTIONS WERE GENUINE AND BONAFIDE. THE LEARNED ASSESSING OFFICER HAS NOT APPRECIATED THE BUSINESS EXPEDIENCY AND ADDED BACK THE SAME TO THE TOTAL INCOME. AT THE FORUM OF 1ST APPELLATE AUTHORITY THE SAME NOT BEING TOUCHED UPON, THE ADDITIONS ARE SUPPOSED TO BE DELETED. 3. THAT, THE LEARNED ASSESSING OFFICER HAS ARBITRARILY DISALLOWED THE CONTRACT EXPENSES OF RS.70,46,095.00 ON THE GROUND THAT TDS HAS NOT BEEN DEPOSITED. THIS DISALLOWANCE HAS BE EN EFFECTED WHEN THE EXPENSES HAS NOT BEEN CLAIMED AS DEDUCTION IN THE PROFIT AND LOSS ACCOUNT AND THE LEARNED ASSESSING OFFICER COULD HAVE PROPORTIONATELY DISALLOWED THE SAME. AT THE FORUM OF 1ST ITA NO. 426 / /1 6 2 APPELALTE AUTHORITY, THE ISSUE NOT BEING TOUCHED UPON FOR T HE REASONS DISCUSSED, THE ORDER MAKING THE ADDITION NEEDS TO BE QUASHED. 4. THAT, THE LEARNED ASSESSING OFFICER HAS ARBITRARILY DISALLOWED THE EXPENDITURE MADE TOWARDS 'DONATION & SUBSCRIPTION' RS.53,600.00 ON THE GROUND THAT THE SAME IS NOT RELATED TO ITS BUSINESS. THE HONOURABLE CIT (A) ALSO DID NOT TOUCH UPON THE POINTS FOR THE REASONS DISCUSSED. HENCE, THE ADDITION IS NEEDED TO BE DELETED. 5. FOR THESE AND AMONG OTHER REASONS TO BE ARGUED AT THE TIME OF HEARING THE ORDER OF ASSESSMENT BE QUASHED TO MEET THE END OF JUSTICE. 3. THE AR OF THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ORDER UNDER APPEAL BEFORE HIM WAS THE ORDER PASSED U/S.147 OF THE ACT ON 3.7.2014. NO ADDITION WAS MADE TO THE IN COME OF THE ASSESSEE IN THIS ORDER AND THE INCOME DETERMINED AS PER ORDER U/S.143(3) OF THE ACT DATED 13.12.2009 WAS ACCEPTED. THEREFORE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT NONE OF THE GROUNDS OF APPEAL EMANATE FROM THE ORDE R APPEALED AGAINST. 4. HE SUBMITTED THAT THE TRIBUNAL SHOULD DIRECT THE CIT(A) TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON MERITS OF THE ADDITION. 5. THE DR, ON THE OTHER HAND, OBJECTING TO THE SUBMISSION OF AR OF THE ASSESSEE, SUBMITTED THAT THE ADDITIONS TO THE INCOME OF THE ASSESSEE WERE MADE BY THE AO IN AN ORDER PASSED U/S.143(3) OF THE ACT DATED 30.12.2009 . IN THE ORDER PASSED U/S.147 OF THE ACT DATED 03.07.2014 NO ADDITION TO THE INCOME OF THE ASSESSEE WAS MADE AND THE INCOME ASSESSED U/S.143(3) OF T HE ACT WAS ACCEPTED AND, THEREFORE, THE GROUNDS OF APPEAL RAISED IN THIS APPEAL ARE ARIS ING OUT OF THE ORDER PASSED BY THE ITA NO. 426 / /1 6 3 AO U/S.143(3) OF THE ACT DATED 30.12.2009 AND NOT AGAINST THE ORDER PASSED U/S.147 OF THE ACT DATED 03.04.2014. THE PRESENT APPEAL OF THE ASSESSEE FILED BEFORE THE TRIBUNAL IS AGAINST THE ORDER OF CIT(A) WHICH APPEAL WAS FILED BEFORE THE CIT(A) AGAINST THE ORDER OF AO PASSED U/S.147 OF THE ACT DATED 03.07.2014 AND, HENCE, THE ORDER OF THE CIT(A) SHOULD BE CONFIRMED. 6. AFTER HEARING BOT H THE PARTIES, WE FIND THAT IT IS NOT IN DISPUTE THAT THE APPEAL BEFORE US IS AGAINST THE ORDER OF AO PASSED U/S.147 OF THE ACT DATED 03.07.2014. IT IS ALSO NOT IN DISPUTE THAT IN THE ORDER PASSED U/S.147 OF THE ACT, NO ADDITION HAS BEEN MADE BY THE AO. TH US, THE GROUNDS OF APPEAL OF THE ASSESSEE WERE RIGHTLY DISMISSED BY THE CIT(A) HOLDING THAT NONE OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AROSE OUT OF THE ORDER PASSED BY THE AO U/S.147 OF THE ACT DATED 03.07.2014. HENCE, NO INTERFERENCE WITH THE OR DER OF CIT(A) IS CALLED FOR, THEREFORE, THE SAME IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 / 02 /201 8 . S D/ - ( PAVAN KUMAR GADALE ) S D/ - (N. S. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 14 /0 2 /2018 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED T O : 1. / THE APPELLANT - M/S ESSEN CONSTRUCTION, PLOT NO.S - 2,A - 2, 42,43 & 44, MANCHESWAR INDUSTRIAL ESTATE, RASULGARH, BHUBANESWAR 2. / THE RESPONDENT - DCIT, CIRCLE - 2(1), BHUBANESWAR ITA NO. 426 / /1 6 4 / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//