Vijay Protins Ltd, Junagadh V. The ACIT,Circle-1, Junagadh

ITA 471/RJT/2005

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0963 (ITAT-RAJKOT)
• Duration Of Justice: 13 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1993-1994
• Appeal Filed On: 26-04-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 234B; 2

Judgement Text

: : IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH: RAJKOT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.471/RJT/2005 / ASSESSMENT YEAR: 1993-94 M/S. VIJAY PROTEINS LTD., OUTSIDE MAJEVADI GATE, JUNAGADH. [PAN: AABCV 1648P] VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 1, JUNAGADH. ( / APPELLANT) ( /RESPONDENT) /ASSESSEE BY : SHRI VIMAL DESAI, A.R /REVENUE BY : SHRI PRAVEEN VERMA, SR. DR /DATE OF HEARING : 26-11-2018 / DATE OF PRONOUNCEMENT : 27-11-2018 / ORDER PER C.M. GARG, JUDICIAL MEMBER : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-IV, RAJKOT (C IT(A) FOR SHORT) DATED 20.01.2005 FOR THE ASSESSMENT YEAR (A.Y) 1993 -94. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. THE LEARNED ASSESSING OFFICER HAS ERRED ON FA CTS AND IN LAW IN DISALLOWING RS. 8,62,021/- ON ACCOUNT OF FREIGHT PA ID AND RS. 50,000/- 2 ITA NO.471/RJT/2005 (A.Y: 1993-94) M/S. VIJAY PROTEINS LTD. ON ACCOUNT OF BROKERAGE PAID AND THE HONOURABLE CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE SAME. 2. THE LEARNED ASSESSING OFFICER HAS ERRED ON FACT S AND IN LAW IN CHARGING INTEREST U/S. 234A AND 234B OF THE INCOME TAX ACT AND THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE SAME. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. ASSESSEES REPRESENTATIVE (AR) SUBMITTED THAT THE L EARNED ASSESSING OFFICER HAS ERRED ON FACTS AND IN LAW IN DISALLOWIN G RS. 8,62,021/- ON ACCOUNT OF FREIGHT PAID AND RS. 50,000/- ON ACCOUNT OF BROKERAGE PAID AND THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CON FIRMING THE SAME. PLACING COPY OF THE ORDER OF ITAT A BENCH, AHMEDA BAD DATED 06.10.1997 FOR AY 1992-93, THE LD. AR, IN ALL FAIRN ESS POINTED OUT THAT THE ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL AND THE APPROPRIATE ORDER MAY KINDLY BE PASSED IN THIS REGA RD. 4. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) SUBMITTED THAT FROM PARA 12 OF THIS ORDER OF THE TR IBUNAL FOR AY 1992-93 (SUPRA), IT IS CLEARLY DISCERNABLE THAT THE GROUND OF REVENUE PERTAINING TO THE DISALLOWANCES ON ACCOUNT OF FREIGHT PAID AND BR OKERAGE PAID IS SQUARELY COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE DEPARTMENT AND THEREFORE, THE SAME MAY KINDLY BE FOLLOWED BY R ESTORING THE ORDER OF THE AO. 3 ITA NO.471/RJT/2005 (A.Y: 1993-94) M/S. VIJAY PROTEINS LTD. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, FROM PARA 12 OF THE TRIBUNAL ORDER DATED 06.07.1997 (SUPRA), WE OBSERVE THAT ON BOTH THE ISSUES, THE TRIBUNAL DISMISSING THE GROUND OF T HE ASSESSEE AND UPHOLDING THE ORDER OF THE AO OBSERVED AS FOLLOWS: 12. WE FIND THAT IN THE A.Y 1991-92, THE ASSESSEE MADE SIMILAR PURCHASE OF OIL CAKES FOR SOLVENT OIL EXTRACTION FR OM 33 SUPPLIERS FROM OUTSIDE STATE OF GUJARAT FOR A CONSIDERATION OF RS. 70,03,826/- AND ON DETAILED ENQUIRIES MADE SUCH PURCHASES WERE FOUND T O BE BOGUS. THE FREIGHT CLAIM OF RS.5,02,752/- WAS ALSO NOT FOUND G ENUINE AND ACCORDINGLY THE REVENUE DISALLOWED SUCH EXPENSES CL AIMED ON PURCHASE OF OIL CAKE AND TRANSPORTATION CHARGES. TH E MATTER CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL AND THE SAME WAS DECIDED BY THE TRIBUNAL IN ITS ORDER DATED 18 TH JANUARY, 1996 IN ITA NO. 5898/AHD/94. THE TRIBUNAL IN THE DETAILED AND ELABORATE ORDER PA SSED FOR AY 1991-92 CONSIDERED ALL RELEVANT FACTS AND MATERIAL EVIDENCE BROUGHT ON RECORD AND CAME TO THE CONSULSION THAT THE PURCHASES SHOWN IN THE NAMES OF OUTSIDE PARTIES WERE NOT GENUINE, AND THE AMOUNT OF PAYMENTS MADE CAME BACK TO THE ASSESSEE THROUGH POOJA TRADERS, WH O GOT THE CHEQUES ISSUED ENCASHED FROM ITS BANK ACCOUNT MAINT AINED FOR THE PURPOSE. THE ID. COUNSEL FOR THE ASSESSEE DURING TH E COURSE OF HEARING FOR THE CURRENT AY 1992-93 DID NOT PREFER ANY WEIGH TY ARGUMENTS AND HE RATHER CONCEDED TO THE REVENUE HAVING TREATED THE S AID PURCHASES OF OIL CAKE FROM 47 OUTSIDE SUPPLIERS. AS NOT GENUINE. PURCHASES BEING NOT GENUINE THE EXPENSES CLAIMED ON TRANSPORTATION AND BROKERAGE ALSO COULD NOT BE JUSTIFIED, WE NEED NOT GO INTO THE DET AILED FACTS AND MATERIAL EVIDENCE BROUGHT ON RECORD FOR THE CURRENT A.Y. AND RESPECTFULLY FOLLOWING THE FINDINGS GIVEN BY THE TR IBUNAL FOR A.Y 1991-92, WE HOLD THAT THE PURCHASE OF OIL CAKE SHOWN TO HAVE BE EN MADE FROM 47 OUTSIDE SUPPLIERS ON A CONSIDERATION OF RS. 1 , 90,01,729/- IS NOT GENUINE AND THE EXPENSES CLAIMED ON ACCOUNT OF THEIR FREIGH T CHARGES AND BROKERAGE ARE ALSO FAKE WITHOUT THERE BEING ANY SUP PORTING EVIDENCE. WE, THEREFORE, CONFIRM THE DISALLOWANCE MADE OF THE CLAIM FOR TRANSPORTATION CHARGES, AT RS. 8,67,012/- AND BROKE RAGE CHARGES AT RS. 58,430/- AND AS A RESULT THE FINDINGS GIVEN BY THE FIRST APPELLATE AUTHORITY IN THIS RESPECT ARE UPHOLD. 6. IN VIEW OF ABOVE, WE HAVE NO HESITATION TO HOLD THAT ON THE SIMILAR SET OF FACTS AND CIRCUMSTANCES, THE TRIBUNAL FOR AY 1992-93 HAS CONFIRMED THE DISALLOWANCE MADE BY THE AO ON ACCOUN T OF CLAIM FOR 4 ITA NO.471/RJT/2005 (A.Y: 1993-94) M/S. VIJAY PROTEINS LTD. TRANSPORTATION CHARGES AND BROKERAGE CHARGES PERTAI NING TO THE PURCHASE OF OIL CAKE SHOWN TO HAVE BEEN MADE BY THE ASSESSEE FROM OUTSIDE SUPPLIERS. THEREFORE, RESPECTFULLY FOLLOWING THE O RDER OF THE CO-ORDINATE OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 1992-93 (SUPRA), WE ALLOW THE GROUND NO.1 OF THE REVENUE. CONSEQUENTLY, FINDINGS OF LD. CIT(A) ARE UPHOLD CONFIRMING BOTH THE DISALLOWANCES. ACCORDIN GLY, GROUND NO.1 OF ASSESSEE IS DISMISSED. GROUND NO.2 : 7. ON GROUND NO.2, THE LD. DR, IN ALL FAIRNESS, AGR EED TO THE SUBMISSION OF THE LD. AR THAT THE PROVISION OF S. 2 34A OF THE ACT ARE APPLICABLE IN THE CASES WHERE RETURN HAS NOT BEEN F ILED WITHIN DUE DATE AND THE SAME HAS BEEN FILED BEYOND THE PRESCRIBED D ATE OF FILING RETURN AND THE IN THE PRESENT CASE THE CLAIM OF THE ASSESS EE THAT RETURN HAS BEEN FILED WITHIN PRESCRIBED DATE REQUIRES EXAMINAT ION AND VERIFICATION AT THE END OF THE AO. IN VIEW OF ABOVE SUBMISSION OF BOTH THE SIDES THE ISSUE INVOLVED IN GROUND NO.2, BEING CONSEQUENTIAL, IS RESTORED TO THE FILE OF AO FOR NECESSARY EXAMINATION AND VERIFICATION ES PECIALLY ON APPLICABILITY OF PROVISIONS OF S. 234A OF THE ACT A S TO WHETHER THE RETURN WAS FILED BY THE ASSESSEE WITHIN PRESCRIBED TIME LI MIT FOR FILING THE RETURN FOR AY 1993-94. ACCORDINGLY, GROUND NO.2 OF ASSESS EE IS DISPOSED OFF WITH THE ABOVE DIRECTIONS TO THE AO. 5 ITA NO.471/RJT/2005 (A.Y: 1993-94) M/S. VIJAY PROTEINS LTD. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 7 TH NOVEMBER, 2018 RAJKOT / ; & / DATED : 27 TH NOVEMBER, 2018/ EDN, SR. P.S ! #$ %$ / COPY OF THE ORDER IS FORWARDED TO : 1. * / THE APPELLANT ; 2. +,* / THE RESPONDENT ; 3. . ( ) / THE CONCERNED CIT(A); 4.THE CONCERNED PRL. CIT; 5. / + , , / DR, ITAT, / RAJKOT; 6. / GUARD FILE . // BY ORDER // ASSISTANT REGISTRAR, ITAT, RAJKOT BENCH, RAJKOT SD/- SD/- ( . . /O.P.MEENA) / ACCOUNTANT MEMBER ( . . /C.M.GARG) /JUDICIAL MEMBER