Soft Touch Hygiene Products (Mfg.) Pvt.Ltd., Ahmedabad V. The ACIT.,(OSD)-Circle-8, Ahmedabad

ITA 452/AHD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50881 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-10-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P R GHOSH
• Assessee Lawyers: G S PATEL
• Keywords: Opportunity of being heard
• Section: 69C; 43B; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI T.K.SHARMA, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 452/ AHD/2009 (ASSESSMENT YEAR 2005-06.) SOFT TOUCH HYUGIENE PRODUCTS MFG. PVT. LTD., 294, HANSOL P.O.SARDARANAGAR, AHMEDABAD VS. ACIT (OSD), CIRCLE 8, AHMEDABAD PAN/GIR NO. : AACCS9974I (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI G S PATEL, AR RESPONDENT BY: SHRI P R GHOSH, SR. DR DATE OF HEARING: 20.10.2011 DATE OF PRONOUNCEMENT: _________________ O R D E R PER SHRI A. K. GARODIA, AM:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) XIV, AHMEDABAD DATED 22.12.2008 FOR THE ASSE SSMENT YEAR 2005- 06. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER: THE APPELLANTS SUBMIT THAT THE LD. CIT(A) HAS ERR ED IN CONFIRMING THE ADDITION OF RS.213550/-( RS. 39822/-I- RS. 1737 28) BEING UNEXPLAINED PURCHASES U/S 69C OF I.T. ACT, 1.1 THE APPELLANTS SUBMIT THAT THE LD C1T(A) HAS ER RED IN OBSERVING THAT THE APPELLANT HAS NOT BEEN ABLE TO S UBSTANTIATE ITS CLAIM THAT THE DAMAGED GOODS OF RS. 39822/-.WERE RE TURNED AND EVEN DURING THE APPELLATE PROCEEDING THE A.R. COULD NOT SUBSTANTIATE HIS CLAIM BY FURNISHING NECESSARY EVID ENCES. IN FACT THE APPELLANTS HAD FILED SUBMISSIONS AND PAPER BOOK WITH THE LD I.T.A.NO452. /AHD/2009 2 CIT(A) AND HAD FULLY SUBSTANTIATED THE CLAIM OF RS. 398227- BEING DAMAGED GOODS RETURNED DURING THE YEAR AND HENCE NO T ENTERED IN THE BOOKS OF ACCOUNTS. 1.2 THE APPELLANTS FURTHER SUBMIT THAT THE LD CIT(A ) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1737287- U/S 69C OF I.T. ACT PRESUMING THAT THOSE GOODS WERE RECEIVED DURING THE MONTHS JANUARY TO MARCH 2005 AND AS SUCH SHOULD HAVE BEEN ACCOUNTED FOR THE PURCHASES IN THE CURRENT YEAR. IN FACT THOS E GOODS WERE RETIRED BY APPELLANTS IN APRIL AND MAY 2005 I.E. IN SUBSEQUENT YEAR AND HENCE RECORDED IN THE NEXT ACCOUNTING YEAR I.E. A.Y. 2006- 2007 AS NOTED BY THE LD CIT(A) IN PARA 2.2 ON PAGE 2 OF HIS ORDER. THE EVIDENCES WERE FILED WITH ID.CIT(A). 1.3 AS SUCH, THE CONFIRMATION OF ADDITION OF RS. 213553(RS.39822 +1737: U/S 69 C BEING ILLEGAL, BE C ANCELLED. 2. THE APPELLANTS SUBMITS THAT THE LD CIT(A) HAS ER RED IN DIRECTING THE AO TO VERIFY THE CLAIM OF THE APPELLA NTS AGAINST THE ADDITION OF RS. 158943/ +RS. 181927- THOUGH THE LD CIT(A) HAS GIVEN HIS FINDING THAT THE CONTENTION OF THE AR. SE EMS TO BE ACCEPTABLE IN PARA 3.3 ON PAGE 4 OF HIS ORE AFTER C ONSIDERING THE SUBMISSIONS AND DETAILS FILED BY THE APPELLANTS BEF ORE LD CIT(A). AS SUCH THE DIRECTION OF LD C1T(A) TO AO BEING ILLE GAL BE CANCELLED. 3. THE APPELLANTS SUBMIT THAT THE LD C1T(A) HAS ERR ED IN CONFIRMING THE ADDITION OF RS. 171677- FOR LATE PAY MENT OF ESI U/S 36(L)(VA) OF I.T. ACT. THE APPELLANTS SUBMIT THAT T HE SAID PAYMENTS WERE MADE BEFORE THE DATE OF FILING THE RETURN AND HENCE THE SAME ARE ALLOWABLE U/S 36(1 )(VA) R.W.S. 43B OF I.T.ACT. 3. REGARDING 1 ST GROUND, IT WAS SUBMITTED BY THE LD. A.R. THAT THE ADDITION WAS MADE BY THE A.O. ON THIS BASIS THAT TH E ENTRY OF RS.2,13,550/- WAS NOT APPEARING IN PURCHASE ACCOUNT OF THE ASSESSEE BUT IN THE LEDGER ACCOUNT OF THE SELLER I.E. M/S. K.M.A .M. TEXTILES, TAMILNADU THE ENTRY WAS APPEARING. IT WAS SUBMITTED BY THE A SSESSEE BEFORE THE A. O. THAT IN FACT, THE GOODS WERE DISPATCHED BY TH AT PARTY IN THE PRESENT I.T.A.NO452. /AHD/2009 3 YEAR BUT THE SAME WERE RECEIVED BY THE ASSESSEE IN THE NEXT YEAR AND, THEREFORE, IT WAS ENTERED IN THE PURCHASE ACCOUNT O F THE ASSESSEE IN THE NEXT YEAR BUT THIS ASPECT WAS NOT PROPERLY EXPLAINE D BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND HENCE, THE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER EXAMINI NG THIS ASPECT. 4. REGARDING GROUND NO.2 ALSO, IT WAS SUBMITTED BY THE LD. A.R. THAT ON THIS ISSUE ALSO, THE MATTER REQUIRES REEXAMINATI ON AT THE END OF THE A.O. BECAUSE IN RESPECT OF PURCHASES FROM THIS PARTY ALS O I.E. M/S. MOTI ENTERPRISES, SALES WAS SHOWN BY THAT PARTY IN THE P RESENT YEAR BUT THE PURCHASES WERE SHOWN BY THE ASSESSEE IN THE NEXT YE AR ON RECEIPT OF THE MATERIAL. 5. REGARDING 3 RD GROUND, IT WAS SUBMITTED THAT THIS ISSUE IS COVERE D IN FAVOUR OF THE ASSESSEE BY VARIOUS JUDGEMENTS OF VAR IOUS HIGH COURTS AND HONBLE APEX COURT THAT EVEN FOR EMPLOYEES CONTRIB UTION TO PF & ESI, NO DISALLOWANCE/ADDITION IS CALLED FOR IF THE PAYME NT HAS BEEN MADE BY THE ASSESSEE BEFORE THE DUE DATE OF FILLING OF RETU RN OF INCOME. REGARDING THE FACTUAL ASPECT THAT THE PAYMENT OF ESI CONTRIBU TION OF RS.17,167/- WAS MADE BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME, IT WAS SUBMITTED THAT FOR THIS FACTUAL VERIFICATION, T HE MATTER MAY BE RESTORED BACK TO THE FILE OF THE A.O. 6. AS AGAINST THIS, LD. D.R. SUPPORTED THE ORDERS O F AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE ONE THROUGH THE ORDERS OF AUTHORITI ES BELOW. REGARDING GROUNDS NO. 1 & 2, WE FEEL THAT IN THE INTEREST OF JUSTICE, THIS ISSUE SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISIO N BECAUSE BEFORE LD. CIT(A) ALSO, IT WAS THE CLAIM OF THE ASSESSEE THAT THE PURCHASES WERE ACCOUNTED FOR BY THE ASSESSEE IN THE NEXT YEAR AND NO FINDING HAS BEEN I.T.A.NO452. /AHD/2009 4 GIVEN BY THE LD. CIT(A) THAT WHETHER THIS CONTENTIO N OF THE ASSESSEE IS CORRECT OR NOT. BEFORE US ALSO, NO SUCH EVIDENCE I S AVAILABLE ON RECORD AND HENCE, WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. ACCORDINGLY, WE SET ASIDE TH E ORDER OF LD. CIT(A) ON THESE TWO ISSUES AND RESTORE THESE MATTERS BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. THE ASSESSEE HAS TO BRING EV IDENCE ON RECORD BEFORE THE A.O. IN SUPPORT OF HIS CONTENTION THAT THE PURC HASES IN QUESTION WERE ACCOUNTED FOR BY THE ASSESSEE IN THE NEXT YEAR. TH EREAFTER, THE A.O. SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVID ING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND S NO.1 & 2 OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. REGA RDING 3 RD GROUND, WE FEEL THAT THIS ISSUE IS NOW COVERED IN FAVOUR OF TH E ASSESSEE THAT EVEN IF EMPLOYEES CONTRIBUTION FOR PF & ESI, NO DISALLOWAN CE/ADDITION CAN BE MADE IF THE PAYMENT HAS BEEN MADE BY THE ASSESSEE B EFORE THE DUE DATE OF FILING OF RETURN OF INCOME. BUT THE FACTUAL ASPECT REGARDING ACTUAL DATE OF PAYMENT HAS TO BE EXAMINED AND HENCE, FOR THIS LIMI TED PURPOSE, WE RESTORE THIS MATTER BACK TO THE FILE OF THE A.O. FO R A FRESH DECISION AND IF IT IS FOUND THAT THE ESI CONTRIBUTION IN QUESTION WERE DULY PAID BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME, NO DISALLOWANCE SHOULD BE MADE. GROUND NO.3 IS ALSO A LLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCT., 2011. SD/- SD/- (T.K. SHARMA) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 25-10-2011 I.T.A.NO452. /AHD/2009 5 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..