Madhya Pradesh Counsaltancy Organisation Limited, Bhopal V. Assistant Commissioner of Income Tax 2(1), Bhopal, Bhopal

ITA 461/Ind/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8750 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-08-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 19-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VINEET A D UB E
• Assessee Lawyers: M K SHARMA
• Keywords: Opportunity of being heard; TDS; Set aside
• Section: 43B; 143(3); 142(1); 143(2); 139(1); 37; 56

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.461/IND/2017 ASSESSMENT YEAR: 2013-14 M/S M.P. CONSULTANCY ORGANIZATION LTD., BLOCK -2, 3 RD FLOOR PARYAWAS BHAWAN, ARERA HILLS BHOPAL / VS. ACIT-2(1) BHOPAL ( APPELLANT ) ( RE VENUE ) PAN: AABCM0090J APPELLANT BY SHRI M.K. SHARMA, CA RE VENUE BY SMT . VINEETA DUBE, SR. DR DATE OF HEARING: 21.08.2019 DATE OF PRONOUNCEMENT: 13 .09.2019 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL AT THE INSTANCE OF ASSESSEE PERTAINING TO A.Y. 2013-14 IS DIRECTED AGAINST THE ORDER OF LD. COMMIS SIONER OF INCOME TAX(APPEALS)-I, BHOPAL, (IN SHORT CIT(A)), DATED 30.03.2017 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED ON 23. -2.2016 BY ACIT- 2(1), BHOPAL. M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 2 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS A LIMITED COMPANY PROVIDING CONSULTANCY SERVICES & ACTING AS A NODAL AGENCY FOR IMPLEMENTATION OF VARI OUS SCHEMES OF CENTRAL & STATED GOVERNMENT AND OTHER AGENCIES. TOT AL INCOME OF RS.83,16,600/- DECLARED IN THE INCOME TAX RETURN FI LED ON 31.10.2013. CASE SELECTED FOR SCRUTINY ASSESSMENT A S PER CASS, FOLLOWED BY SERVING OF NOTICES U/S 143(2) & 142(1) OF THE ACT. LEARNED ASSESSING OFFICER (IN SHORT LD. AO) AFTER E XAMINING THE FINANCIAL STATEMENT AND VARIOUS DETAILS AND CONSIDE RING THE SUBMISSIONS OF THE ASSESSEE ASSESSED INCOME AT RS.1 ,17,71,160/- AFTER MAKING FOLLOWING ADDITIONS: INCOME AS PER RETURN OF INCOME RS.83,16,600 / - ADD: DISALLOWANCE OF PRIOR PERIOD EXPENDITURE U/S 37 AS PER PARA 1.4 RS.2,79,078/ - ADD: INTEREST INCOME FROM RAIPUR DEPOSIT U/S 56 AS PER PARA 2.4 RS.35,230/ - ADD: INCOME U/S 2(24)(X) R.W.S. 36(VIIA) AS PER PARA 3.6 RS.13,04,862/ - ADD: INCOME FROM PUNJAB NATIONAL BANK NOT OFFERED TO TAX AS PER PARA 4.5 RS.18,35,393/ - ASSESSED TOTAL INCOME (ROUNDED OFF) RS.1,17,71,160/- 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) BUT FAILED TO SUCCEED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L RAISING FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND LAW AND IN THE CIRCUMSTANC ES OF THE CASE, THE ID. CIT (APPEAL) HAS WRONGLY DISALLOWED P RIOR PERIOD M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 3 EXPENDITURE U/S 37 OF RS.2,79,078 WITHOUT CONSIDERI NG THE SUBMISSIONS PLACED ON RECORD AND WRONGLY INTERPRETI NG / IGNORING THE FACTS AND LAW. 2. THAT ON THE FACTS AND LAW AND IN THE CIRCUMSTANC ES OF THE CASE, THE ID. CIT (APPEAL) HAS WRONGLY ADDED INTERE ST INCOME FROM RAIPUR DEPOSIT U/S 56 OF RS.35,230 WITHOUT CON SIDERING THE SUBMISSIONS PLACED ON RECORD AND WRONGLY INTERP RETING / IGNORING THE FACTS. 3. THAT ON THE FACTS AND LAW AND IN THE CIRCUMSTANC ES OF THE CASE THE LD. CIT (APPEAL) HAS INCORRECTLY NOT ALLOW ED THE CLAIM OF ESIC /PF U/S 224(X) R.W. S.36(VII)(A) OF RS.13,04,8 62 WITHOUT CONSIDERING THE SUBMISSIONS PLACED ON RECORD AND WR ONGLY INTERPRETING THE LAW. 4. THAT ON THE FACTS AND LAW AND IN THE CIRCUMSTANC ES OF THE CASE THE ID. CIT (APPEAL) HAS INCORRECTLY ADDED INC OME FROM PUNJAB NATIONAL BANK NOT OFFERED TO TAX OF RS.18,35 ,393 WITHOUT CONSIDERING THE SUBMISSIONS PLACED ON RECORD AND WR ONGLY INTERPRETING / IGNORING THE FACTS. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE ID. CIT (APPEAL) ERRED IN INITIATING PENALTY PROCEE DING U/S 271(1)(C), WHICH IS NOT JUSTIFIED. 6. THAT ON THE BASIS OF ABOVE FACTS, THE ASSESSEE C REEPS TO LEAVE, TO ARCH, TO ARGUE, TO AMEND ANY OF THE GROUN DS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING . 5. APROPOS TO GROUND NO.1 & 2 RELATING TO DISALLOWA NCE OF PRIOR PERIOD EXPENDITURE OF RS.2,79,078/- AND ADDITION FO R INTEREST U/S 56 OF THE ACT AT RS.35,230/- DURING THE COURSE OF H EARING NO SUBMISSIONS WERE MADE BY THE LD. COUNSEL FOR THE AS SESSEE. NO WRITTEN SUBMISSIONS HAVE BEEN FILED. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED IN CONTESTING/PRESSING THESE GROUNDS . WE, THEREFORE, ARE OF THE VIEW THAT GROUND NO.1 & 2 DESERVES TO BE DISMISSED AS NOT PRESSED. WE ACCORDINGLY, ORDER SO AND DISMISS THE ASSESSEES GROUND NO.1 & 2. M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 4 6. APROPOS TO GROUND NO.3 RELATING TO DISALLOWANCE U/S 36(I)(VA) OF THE ACT OF RS.13,04,862/- MADE FOR DELAY IN DEPOSIT OF ESIC & PF. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ALL EGED AMOUNT HAS BEEN PAID BEFORE THE DUE DATE OF FURNISHING THE RET URN OF INCOME. PLACING RELIANCE ON THE JUDGMENT OF HON'BLE APEX CO URT IN THE CASE OF PR. CIT VS RAJASTHAN STATE BEVERAGES CORPORATION LTD. (2017) 84 TAXMANN.COM 185 (SC), PRAYER WAS MADE FOR DELETING THE DISALLOWANCE. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) COULD NOT CONTROVERT THE CONTENTION MADE BY THE LD. COUNSEL F OR THE ASSESSEE. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. IN GROUND NO.3 THE ASSESSEE IS AGGRIEVED WITH THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION OF ESIC & PF OF RS. 13,04,862/- BEING NOT PAID BEFORE THE DUE DATE AS P ROVIDED IN SECTION 36(I)(VA) OF THE ACT. IT HAS BEEN SUBMITTED BEFORE US BY LD. COUNSEL FOR THE ASSESSEE THAT THE ALLEGED AMOUNT WA S PAID BEYOND THE DUE DATE PROVIDED IN SECTION 2(24)(X) R.W.S 36( 1)(VA) BUT WAS FINALLY PAID BEFORE THE DUE DATE OF FILING THE RETU RN OF INCOME U/S 139(1) OF THE ACT. DETAILS OF THE PAYMENTS ARE PLAC ED IN PAPER BOOK PAGES 83 TO 102. FROM PERUSAL OF THE PAYMENT DETAIL S WE FIND THAT THE ALLEGED AMOUNT RELATING TO ESIC & PF HAS BEEN P AID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT. M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 5 9. IN THE SIMILAR SET OF FACTS, WE OBSERVE THAT HON 'BLE APEX COURT CONFIRMED THE VIEW TAKEN BY HON'BLE HIGH COURT OF R AJASTHAN IN THE CASE OF RAJASTHAN STATE BEVERAGES CORPORATION LTD. (SUPRA) HOLDING THAT IF THE AMOUNT CLAIMED ON PAYMENT OF PF AND ESI HAV ING BEEN DEPOSITED ON OR BEFORE DUE DATE OF FILING OF RETURN S, SAME COULD NOT BE DISALLOWED UNDER SECTION 43B OR UNDER SECTION 36(1) (VA), WHETHER, IT WAS EMPLOYEES OR EMPLOYER CONTRIBUTION. SLP FILED BY THE INCOME TAX DEPARTMENT WAS DISMISSED. 10. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE JUDGMENT OF HON'BLE SUPREME COURT, ARE OF THE CONSIDERED VIEW S INCE THE ALLEGED PAYMENT HAS BEEN PAID BEFORE THE DUE DATE OF FILING RETURN OF INCOME. PROVIDING U/S 139(1) OF THE ACT NO DISALLOW ANCE WAS CALLED FOR TOWARDS DELAY IN PAYMENT OF ESIC & PF AT RS.13, 04,862/-. WE, THEREFORE, SET ASIDE THE FINDING OF LD. CIT(A) AND ALLOW GROUND NO.3 RAISED BY THE ASSESSEE. 11. APROPOS GROUND NO.4 FOR THE ADDITION OF RS.18,3 5,393/-, AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS MISMATCH BETWEEN THE BILLS RAISED BY THE ASSESSEE T O PUNJAB NATIONAL BANK VIS-A-VIS THE DETAILS AVAILABLE IN 26 AS FORM FOR THE TAX DEDUCTED AT SOURCE AND THE VALUE OF SERVICES ON WHICH THE TAX IS DEDUCTED. BUT DUE TO LACK OF RECONCILIATION THE ALL EGED AMOUNT HAS BEEN ADDED. REQUEST WAS MADE FOR SETTING ASIDE THE ISSUE TO THE FILE OF LD. AO FOR NECESSARY RECONCILIATION AND DECIDE A CCORDINGLY. M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 6 12. LD. DR RAISED NO OBJECTION IF THE ISSUE RAISED IN GROUND NO.4 IS SENT TO THE FILE OF LD. AO FOR NECESSARY RECONCILIA TION. 13. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US. IN GROUND NO.4 THE ASSESSEE HAS CHALLENG ED THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION OF RS.18,35,393/ - FOR THE ALLEGED INCOME FROM PUNJAB NATIONAL BANK NOT OFFERED TO TAX . WE OBSERVE THAT THE ASSESSEE PROVIDE SERVICES TO PUNJAB NATION AL BANK. THE ASSESSEE HAS MADE A SHORT CLAIM OF TDS OF RS.25,390 /-. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PUNJAB NATIONAL BANK HAS SHOWN WRONG AMOUNT OF CREDIT/PAYMENT OF RS.26,5 1,126/- IN FORM 26AS AS AGAINST WHICH THE BILL OF RS.8,15,733/ - WAS RAISED TO PNB BY THE ASSESSEE AND DUE TO THIS MISMATCH LD. AO MADE THE ADDITION. SUBSEQUENTLY, THERE WERE SOME COMMUNICATI ONS WITH THE PNB AND THE AMOUNT HAS BEEN RECONCILED. 14. IN THESE GIVEN FACTS WE ARE OF THE VIEW THAT TH E ASSESSEE DESERVES ONE MORE OPPORTUNITY TO PROVIDE NECESSARY INFORMATION ALONG WITH DETAILS OF RECEIPT FROM PNB, IN ORDER TO PROVE THAT THERE IS NO MISMATCH IN THE RECORDS. LD. AO SHALL PROVIDE NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND AFTE R EXAMINING THE RECORDS INCLUDING THE RECONCILIATION STATEMENT TO B E FILED BY THE ASSESSEE SHOULD DECIDE THE ISSUE AFRESH AS PER THE PROVISIONS OF LAW. ACCORDINGLY, GROUND NO.4 OF THE ASSESSEES APPEAL I S ALLOWED FOR STATISTICAL PURPOSES. M.P. CONSULTANCY ORGANISATION LTD. ITANO.461/IND/2017 7 15. GROUND NO.5 & 6 ARE GENERAL IN NATURE WHICH NEE DS NO ADJUDICATION. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 13 .09.2 019. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 13/09/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR