RAM KISHAN, Jaipur V. ITO, BUNDI

ITA 507/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5196 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 244A; 142(1); 147; 148; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 507/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 RAM KISHAN, PROP.- M/S DELHI KANDLA ROADLINES, OPP.- TRUCK UNION, NH-12, BYE-PASS ROAD, BUNDI (RAJASTHAN) CUKE VS. INCOME TAX OFFICER, BUNDI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AQWPK 9910 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 452/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, BUNDI. CUKE VS. RAM KISHAN, PROP.- M/S DELHI KANDLA ROADLINES, OPP.- TRUCK UNION, NH-12, BYE-PASS ROAD, BUNDI (RAJASTHAN) LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AQWPK 9910 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI G.C. JAIN (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/06/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 04/07/2016 ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 2 VKNS'K@ ORDER PER: LALIET KUMAR, J.M. THESE ARE THE CROSS APPEALS, ONE BY THE ASSESSEE AN D ANOTHER BY THE REVENUE ARISE AGAINST THE ORDER DATED 25/02/201 3 PASSED BY THE LD CIT(A), KOTA WHEREIN THE EFFECTIVE GROUNDS OF ASSESS EE AS WELL AS REVENUES APPEALS ARE REPRODUCED AS UNDER:- GROUNDS OF ASSESSEES APPEAL:- 1.1 THE VERY ACTION TAKEN U/S 147 R/W 148 IS BAD I N LAW WITHOUT JURISDICTION AND BEING VOID AB-INITIO, THE SAME MAY KINDLY BE QUASHED. CONSEQUENTLY THE IMPUGNED ASSESSMENT FRAMED U/S 144/ 148 DATED 31.12.2007 MAY ALSO KINDLY BE QUASHED. 1.2 THE IMPUGNED ORDER U/S 144/ 148 R.W.S 147 DATED 23.12.2011 IS BAD IN LAW AND ON FACTS OF THE CASE, FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE THE SAME MAY KINDLY BE QUASHED. 2. RS. 11,72,124/- THE ID. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN MAKING ADDITION OF RS. 11,72,124/- ON ACCOUNT OF UNEXPLAINED/UNDISCLOSED TRANSPORTATION RECEIPTS AS DIFFERENCE FORM 26AS AND DECLARED BY THE ASSESSEE. HENCE THE ADDITION SO MADE BY THE CIT(A) IS CONTRARY TO THE PROVISIONS OF LAW AND FACTS AND HENCE THE SAME MAY KINDLY BE DELETED IN FULL. 3. THE ID. AO ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CHARGING OF INTEREST U/S 234A &B AND ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 3 244A AS CONSEQUENTIAL IN NATURE. THE APPELLANT TOTALLY DENIES IT LIABILITY OF CHARGING OF ANY SUCH INTEREST. HENCE THE INTEREST SO CHARGED, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED IN FULL. GROUNDS OF REVENUES APPEAL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ID. CIT(A), KOTA HAS ERRED IN :- (I) DELETING ADDITION OF RS. 14,37,582/- OUT OF TOT AL ADDITION MADE AT RS.26,09,706/- ON ACCOUNT OF UNDISCLOSED TRANSPORTATION RECEIPTS; (II) ACCEPTING THE UNDISCLOSED RECEIPTS OF RS. 15,5 4,400/- RELATED TO ASSESSMENT YEAR 2008-09, WITHOUT GIVING OPPORTUNITY TO THE AO UNDER RULE 46A OF THE I.T. RUL ES 1962. 2. THE ASSESSEE HAD FILED HIS RETURN OF INCOME FOR T HE YEAR UNDER CONSIDERATION ON 09/10/2009 DECLARING TOTAL INCOME OF RS. 4,30,160/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961, (IN SHORT THE ACT). THE LD ASSESSING OFFICER OBSERVED TH AT THE TOTAL TRANSPORTATION RECEIPT OF THE ASSESSEE COMES AT RS. 2,88,65,763/- (2,62,56,057/- + 26,09,706/-) WHEREAS THE ASSESSEE H AD SHOWN TOTAL TRANSPORTATION RECEIPTS AT RS. 2,62,56,057/- IN HIS P&L ACCOUNT. THUS, THE ASSESSEE HAD NOT SHOWN TRANSPORTATION RECEIPTS AMOUN TING TO RS. 26,09,706/- IN HIS RETURN OF INCOME FOR THE YEAR UN DER CONSIDERATION. THEREFORE, IT SHOWS THAT INCOME OF RS. 26,09,706/- H AD ESCAPED ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 4 ASSESSMENT. THE LD ASSESSING OFFICER ISSUED A NOTICE U/S 148 ON 23-9- 2010, BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE. TH EREAFTER VIDE NOTICE U/S 142(1) OF THE ACT DATED 11/7/2011, THE A SSESSEE WAS ASKED TO FURNISH DETAILS OF TRANSPORTATION RECEIPT DURING TH E YEAR ALONGWITH EVIDENCE AND COPY OF ACCOUNT, DETAILS OF BANK ACCOU NT ALONGWITH COPY OF LEDGER AND BANK STATEMENT, DETAILS OF SOURCE OF INC OME AND DETAILS OF EXPENSES MORE THAN RS. 5000/- SHOWN IN THE P&L ACCOU NT. THE AR OF THE ASSESSEE APPEARED BEFORE THE LD ASSESSING OFFICER A ND FILED POWER OF ATTORNEY, WRITTEN SUBMISSIONS, BOOKS OF ACCOUNT, CAS H BOOK AND LEDGER. THE LD ASSESSING OFFICER FURTHER OBSERVED THAT DURIN G THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SHOWN GROSS RECEIPT OF RS. 2,62,56,057/- IN HIS P&L ACCOUNT BUT ON VERIFYING THE TDS CERTIFIC ATES SUBMITTED ALONGWITH THE RETURN AND FORM 26AS GENERATED FROM TH E SYSTEMS, IT WAS FOUND THAT GROSS RECEIPT OF THE ASSESSEE COMES AT R S. 2,88,65,763/- FOR THE YEAR UNDER CONSIDERATION. THE DETAILS OF THE PAR TIES FROM WHOM THE TRANSPORTATION RECEIPTS OF RS. 26,09,706/- WERE NOT FOUND TO BE SHOWN, WHICH HAS BEEN REPRODUCED BY THE LD ASSESSING OFFICE R ON PAGE 2 AND 3 OF THE ASSESSMENT ORDER. THE ASSESSEE HAS FILED REPL Y BEFORE THE LD ASSESSING OFFICER. AFTER CONSIDERING THE ASSESSEES REPLY AND AFTER EXAMINING THE BOOKS OF ACCOUNTS CONSISTING OF CASH BOOK AND LEDGER, ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 5 COMPLETED THE ASSESSMENT, ON A TOTAL INCOME OF RS. 3039570/- WHICH INTER-ALIA INCLUDED THE ALLEGED UNEXPLAINED UNDISCL OSED TRANSPORTATION RECEIPTS OF RS. 2609706/- VIDE ORDER DATED 23-12-20 11. THE ITO DID NOT FURNISH DETAILS OF TOTAL RECEIPTS OF RS. 28865763/- AS PER 26AS GENERATED FROM THE SYSTEM, BUT SUPPLIED THE STATEMENT OF 'DIF FERENCE SHEET' OF 25 PARTIES INVOLVING AMOUNT OF RS. 2609706/-. IN RE GARD TO THE ALLEGED DIFFERENCE, AN EXPLANATION WAS FURNISHED SAYING THAT RECEIPTS IN RESPECT OF TDS CERTIFICATE WITH AMOUNT OF RS. 1554400/- PERTA INED TO THE EARLIER ASSESSMENT YEAR 2008-09 BUT WERE INADVERTENTLY WRONGL Y ATTACHED WITH THE RETURN FOR THE ASSESSMENT YEAR 2009-10. THE BALA NCE AMOUNT OF RS. 1055266/- WAS DULY ACCOUNTED FOR IN THE BOOKS RELATI NG TO ASSESSMENT YEAR 2009-10 AND THERE WAS NOTHING UNDISCLOSED AND U NEXPLAINED. THE LEARNED ITO HOWEVER, DID NOT ACCEPT THE CONTENTION O F THE ASSESSEE AND MADE THE ADDITION OF THE IMPUGNED AMOUNT OF RS. 260 9706/- TO THE TOTAL INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD PARTLY ALLOWED THE APPEAL BY OBSERVING AS UNDER:- THE SUBMISSION OF THE ASSESSEE HAS BEEN CONSIDERED CAREFULLY BUT NOT FOUND CONVINCING. THE SUBMISSIONS OF THE ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 6 AR OF THE ASSESSEE, THAT BY CLERICAL MISTAKE OUR CL IENTS EMPLOYEE HAD WRONGLY ENCLOSED TDS CERTIFICATES WITH I. T. RETURN, RELATED TO LAST A. YR. FOR RS. 1554400/-(TDS RS.32986/-) IS AN AFTERTHOUGHT. THERE IS NO SUPPORTI NG DOCUMENTARY EVIDENCE, FURNISHED BY THE ASSESSEE WHIC H /JUSTIFY THAT THE ASSESSEE INCLUDED THESE RECEIPTS IN THE A. Y. 2008-09. THE ASSESSEE WAS FILED DETAILED LIST OF TDS CERTIFICATES ALONGWITH HIS RETURN OF INCOME, IN WHICH HE CLAIMED TOTAL TDS OF RS. 580335/- AND THE SAME AMOUN T WAS CLAIMED IN RETURN. IT IS ALSO WORTHWHILE TO MENTIO N HERE THAT, EVEN AFTER ISSUE OF NOTICE U/S. 148, THE ASSESSEE, WHAT SO EVER, HE CALLED FOR, IS AN AFTERTH OUGHT AND WITHOUT SUPPORTING ANY EVIDENCE. THESE FACTS WERE CONFRONTED TO THE ASSESSEE VIDE ORDER SHEET DATED 16/12/2011. ON 16/12/2011, THE ASSESSEE, NOW SUBMITTED COPY OF ACCOUNTS OF THE PARTIES FOR THE PERIOD 01/04/2007 T O 31/03/2008 IN WHICH TRANSPORTATION RECEIPT & TDS HAS BEEN SHOWN AND HAS STATED THAT THESE RECEIPTS HAVE B EEN TAKEN BY HIM IN A. Y. 2008-09 AND TDS WERE ALSO CLAI MED IN A. Y. 2008-09 BUT DUE TO CLERICAL MISTAKE THE TD S CERTIFICATES WERE WRONGLY ATTACHED WITH THE RETURN OF INCOME FOR A. Y. 2009-10. THE AR OF THE ASSESSEE HAS ALSO FILED COPY OF ACCOUNTS OF THE 258 PARTIES, FORM WHIC H TRANSPORTATION RECEIPTS WERE NOT FOUND TO BE INCLUDE D IN THE RETURN OF INCOME FOR THE A. Y. 2009-10(AS PERFO RM ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 7 26AS) AND STATED THAT THE ASSESSEE HAS INCLUDED THE TRANSPORTATION RECEIPT FROM THESE PARTIES IN TOTAL TRANSPORTATION RECEIPT FOR THE YEAR UNDER CONSIDERA TION. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A SSESSEE BUT NOT FOUND CONVINCING/JUSTIFIED FOR THE FOLLOWING REASONS; (I) THE SUBMISSION OF THE ASSESSEE IS AN AFTERTHOUGH T AND WITHOUT ANY BASIS, MERELY FILING OF COPY OF ACCOUNT OF TRANSPORTATION RECEIPT DOES NOT PROVE TH AT THAT THE ASSESSEE HAS CLAIMED TRANSPORTATION RECEIP T IN A. Y. 2008-09 & 2009-10. (II) THERE IS NO SUPPORTING DOCUMENTARY EVIDENCES WER E PRODUCED BY THE ASSESSEE WHICH PROVED THAT THE SUBMISSION OF THE ASSESSEE IS CORRECT. (III) THE ASSESSEE HAS STATED THAT BY CLERICAL MISTA KE TDS CERTIFICATES PERTAINS TO A. Y. 2008-09 WERE ATTACHED WITH RETURN OF INCOME FOR A. Y. 2009-10 IS NOT CORRECT. IF IT IS CORRECT, THE TDS AMOUNT SO CLAIMED BY THE ASSESSEE WAS CORRECT. IF IT IS CORRECT, THE TD S AMOUNT SO CLAIMED BY THE ASSESSEE WAS NOT EXACTLY MATCHED. (IV) IF THE ASSESSEE IS CORRECT, THAN HE HIMSELF HA S TO REVISED HIS RETURN OF INCOME AND THESE FACTS WERE INTIMATED TO THE DEPARTMENT BUT THE ASSESSEE HAS ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 8 FAILED TO DO SO, EVEN AFTER TAKING ACTION UNDER SEC TION 147, HE HAS NOT FILED ANY RETURN OF INCOME BY RECTIFYING THE SAME. IN THE LIGHT OF ENTIRE FACTS AND CIRCUMSTANCES OF T HE CASE AS DISCUSSED ABOVE, IT IS CLEARLY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO SHOW TRANSPORTATION RECEIPTS OF RS.26,09,706/- OF THE ABOVE MENTIONED 25 PARTIES IN THE TRANSPORTATION RECEIPT SHOWN IN A. Y. 2009-10 AND FO R WHICH NO JUSTIFICATION/EXPLANATION WAS FURNISHED BY T HE ASSESSEE WITH SUPPORTING DOCUMENTARY EVIDENCE. I, THEREFORE, MAKE AN ADDITION OF RS.26,09,706/- AS UNACCOUNTED/UNDISCLOSED TRANSPORTATION RECEIPT FOR THE YEAR UNDER CONSIDERATION AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ON THE OTHER HAND ASSESSEE CLAIMED THAT ALL THE REC EIPTS WERE DULY ACCOUNTED IT WAS ALSO CLAIMED THAT TDS CERTIFICATES OF RS. 1554400/- (RECEIPT) WERE RELATED TO EARLIER YEAR (PLEA TAKEN BEFORE ASSESSING OFFICER A LSO). TO ARRIVE AT THE CORRECT DECISION THE ASSESSEE WAS AS KED TO PREPARE RECONCILIATION AMONG THREE FIGURES:- (I) TURN OVER AS TDS CERTIFICATE (II) TURN OVER AS PER 26AS & (III) TURN OVER AS PER BOOKS OF ACCOUNTS. ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 9 THE SAME WAS DONE AND AS PER THIS RECONCILIATION THE TOTAL DIFFERENCE CAME TO RS.2726524/- OUT OF WHICH RS. 1554400/- RELATED TO EARLIER YEARS TDS CERTIFICATE. THE DIFFERENCE RELATED TO THIS YEAR WAS ONLY RS.11,72,12 4/-. THE ASSESSEE ALSO CLAIMED THAT ONLY N. P. ON UNDISC LOSED TURNOVER SHOULD BE ADDED TO THE INCOME OF ASSESSEE. IT WAS SEEN THAT BEFORE ASSESSING OFFICER THE ASSESS EE CLAIMED T HAT ENTIRE RECEIPT WERE INCLUDED IN THE BO OKS, WHICH LEADS TO THE PRESUMPTION THAT ENTIRE EXPANSES MUST HAVE BEEN CLAIMED BY ASSESSEE. I HAVE GONE THROUGH THE RECONCILIATION AND IT WAS SE EN THAT OUT OF DIFFERENCE OF RS.11,72,124/- A SUM OF RS.11,44,517/- RELATED TO UNDISCLOSED AMOUNT RECEIV ED FROM M/S RUCHI SOYA LTD ONLY. TOTAL RECEIPTS FROM M/ S RUCHI SOYA WERE OF RS.22,57,218/-, OUT OF WHICH ONLY RS.11,12,701/- WERE ACCOUNTED IN THE BOOKS. THE ASSES SEE FAILED TO SHOW THAT THE EXPENSES RELATED TO THE BALA NCE WERE NOT CLAIMED BY ASSESSEE. APPARENTLY THE ASSESSEE [WITH A VIEW TO REDUCE ITS INCOME] DID NOT DISCLOSE A SINGLE LARGE AMOUNT FROM RUCHI SOYA. ACCORDINGLY ADDITION OF RS. 11,72,124/- IS CO NFIRMED, THE ASSESSING OFFICER IS DIRECTED TO DELETE BALANCE ADDITION OF RS. 14,37,582/-. ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 10 4. NOW BOTH ARE IN APPEALS BEFORE US. THE LD AR OF TH E ASSESSEE HAS SUBMITTED THAT THE ASSESSEE MAINTAINED REGULAR COMP UTERIZED BOOKS OF ACCOUNTS IN THE NATURE OF CASH BOOK AND LEDGER AND THE SAME WERE DULY AUDITED BY THE CHARTERED ACCOUNTED AS PER HIS REPOR T DATED 29-9-2009. THE ASSESSEE HAS MAINTAINED ALL THE VOUCHERS OF THE EXPENDITURE INCURRED DURING THE COURSE OF BUSINESS CARRIED ON. WHILE SUB MITTING THE RETURN FOR THE ASSESSMENT YEAR 2009-10 DUE TO INADVERTENT MIST AKE OF THE OFFICE TDS CERTIFICATES RELEVANT TO THE ASST, YEAR 2008-09 WERE ALSO ENCLOSED WITH THE RETURN FOR ASSESSMENT YEAR 2009-10.THESE CER TIFICATES INVOLVED AN AGGREGATE AMOUNT OF RS. 1554400/- AS DETAILED BE LOW AND THE BALANCE WAS DULY ACCOUNTED FOR IN THE BOOKS RELEVANT TO ASSE SSMENT YEAR 2009- 10. THE ASSESSEE ALSO SUBMITTED COMPLETE LIST OF REC EIPTS AS SHOWN IN ACCOUNTS BOOKS AT RS. 26256057/- WHICH ALREADY INCL UDED THE RECEIPTS OF RS. 25422166/- AS SHOWN IN FORM NO. 26AS GENERATED F ROM NSDL WEBSITE SEVERAL REQUESTS MADE TO MAKE AVAILABLE COMPLETE LI ST OF RECEIPTS OF RS. 28865763/- DID NOT ELICIT ANY RESPONSE FROM THE ITO . THE LIST OF TRANSPORTATION RECEIPTS OF RS. 2609706/- TERMED AS 'DIFFERENCE SHEET' OF 25 PERSONS, AND WHICH ACCORDING TO HIM WERE UNDISCLOS ED, WERE PROPERLY EXPLAINED AS BEING RS. 1554440/- RELATED TO ASSESSM ENT YEAR 2008-09 AND BALANCE DULY ACCOUNTED FOR IN A. YEAR 2009-10) AND AS SUCH NO ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 11 AMOUNT WAS LIABLE TO BE CONSIDERED AS UNDISCLOSED. TH E ID. C.I.T. DURING THE COURSE OF APPEAL PROCEEDINGS GOT A RECONCILIATI ON STATEMENT PREPARED UNDER THE FOLLOWING 3 HEADS:- I) TURNOVER AS PER TDS CERTIFICATES, II) TURNOVER AS PER 26AS III) TURNOVER AS PER BOOKS OF ACCOUNTS. HE FURTHER ARGUED THAT THE TOTAL DIFFERENCE CAME TO RS. 2726524/-OUT OF WHICH RS. 1554440/- AS BELOW RELATED TO ASSESSMENT YE AR 2008-09, BUT WRONGLY INCLUDED WITH THE RETURN FOR ASSESSMENT YEAR 2009-10 BUT WRONGLY INCLUDED: 1. SITA RAM MANGAL PROP. UMANG STONE INTERNATIONA L RS. 1054246/- 2. SHRI RAM CATTLE FEED RS. 303000/- 3. HYGINE FEEDS RS. 41899/- 4. UNITED EXPORT RS. 129240/- 5. UNITED EXPORT RS. 26050/- TOTAL RS. 1554400/- THE BALANCE OF RS. 1172218/- RELATED TO THE ASSESSME NT YEAR 2009-10 . IT IS SUBMITTED THAT TRANSPORTATION RECEIPTS FROM RUCH I SOYA WERE OF RS. 2257218/- OUT OF WHICH RECEIPTS OF RS. 1112701/- WERE ACCOUNTED FOR IN THE BOOKS AND THE BALANCE WAS TREATED BY THE ID. CIT( A) UN-DISCLOSED RECEIPTS AND CONFIRMED THE ADDITION OF RS. 1172124/ -. IT IS SUBMITTED THAT THE DIFFERENCE AS POINTED OUT BY THE ITO, BUNDI AT RS. 2609706/- HAD DULY BEEN EXPLAINED PROPERTY I.E. RS. 1554440/- PERTAINED ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 12 TO THE ASSESSMENT YEAR 2008-09 AND BALANCE OF RS. 1 055266/- WAS ACCOUNTED FOR THE BOOKS OF A/C FOR THE ASSESSMENT Y EAR 2009-10. THUS NOTHING REMAINED UNEXPLAINED. HOWEVER, DURING THE CO URSE OF PREPARATION OF RECONCILIATION STATEMENT, DIFFERENCE OF RS. 1172218/- WAS NOTICED IN THE A/C OF RUCHI SOYA LTD. FOR WHICH OUR SUBMISSION BEFORE THE ID. CIT(A) WAS THAT ONLY THE PROFIT SHOULD BE ADDED B UT HE DID NOT ACCEPT OUR CONTENTION AND CONFIRMED THE ADDITION OF RS. 11 72418/- WHICH IS NOT JUSTIFIED. THE ASSESSEE DOES NOT OWN ANY OF THE VEHIC LE OF HIS OWN. HE ARRANGES THE TRUCKS FROM THE TRUCK UNION AND THE MARK ET. THEREFORE, THE TRANSPORTATION RECEIPTS DIRECTLY GO TO THE OWNERS OF THE TRUCKS AND NOT TO THE ASSESSEE AND THE ASSESSEE ONLY RECEIVES COMMISS ION RANGING BETWEEN 300/- TO 500/- AND AFTER INCURRING EXPENDITU RE THE NET PROFIT WAS ONLY 1.45% OF THE RECEIPTS. THE ASSESSEE HAS BEEN SH OWING RECEIPTS ONLY WITH A VIEW OF CROSS CHECK SO AS TO CLAIM TDS CREDIT B ECAUSE THE TDS CERTIFICATES ARE IN HIS NAME. THEREFORE, THERE WAS N O QUESTION OF SUPPRESSION OF RECEIPTS/ UNEXPLAINED RECEIPTS. IT I S THEREFORE, PRAYED THAT ONLY THE PROFIT ELEMENT OF 1.45% MAY KINDLY BE TAXE D AND THE BALANCE BE DELETED. HE FURTHER RELIED ON THE FOLLOWING CASE LAWS :- (I) CIT V/S PRESIDENT INDUSTRIES (158) CTR 372 (GU J. 2002) - (II) CIT V/S BALCHAND AJIT KUMAR, (186 CTR 419 ) (20 04) (M.P.) (III) MANMOHAN SODANI V/S CIT 304 ITR 52 (2008) (M.P .) ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 13 HE FURTHER SUBMITTED THAT THE REVENUE HAS IN GROUND NO. 2 CHALLENGED THE ORDER OF THE CIT(A) THAT HE ACCEPTED THE UNDISC LOSED RECEIPTS OF RS. 1554440/- RELATED TO A. YEAR 2008-09 WITHOUT GIVING OPPORTUNITY TO THE A.O. UNDER RULE 46A OF THE I.T. RULES, 1962. IN SO F AR AS THIS GROUND IS CONCERNED, IT IS SUBMITTED THAT WHILE THE CIT(A) HAS CO-TERMINUS POWER WITH THE A.O. STILL THE ASSESSING OFFICER WAS GIVEN O PPORTUNITY FOR EVERY HEARD AND NO SPECIFIC OPPORTUNITY WAS REQUIRED TO BE GIVEN RULE 46A COMES INTO PLAY ONLY WHEN NEW EVIDENCE IS PRODUCED BE FORE THE CIT(A). HOWEVER, NO NEW EVIDENCE WAS FILED REQUIRING ANY COMPL IANCE OF RULE 46A, SUBMISSION REGARDING THE AMOUNT OF RS. 1554440 /- WAS THAT THE RECEIPTS PERTAINED TO ASSESSMENT YEAR 2008-09. THE LD A.O. HOWEVER REFUSED TO ACCEPT THE SAME BUT THE CIT(A) HAS ACCEPT ED AS CORRECT, AFTER PROPER APPRAISAL OF THE FACTS. A COPY OF ORDER U/S 154 PASSED BY THE A.O. FOR THE ASSESSMENT YEAR 2008-09 AGITATING THE ADDIT ION OF RS. 1554440/- IS ENCLOSED WHICH CLEARLY SHOWS THAT THE AMOUNT RELAT ED TO A. YEAR 2008- 09. IN VIEW OF THIS THE 2ND GROUND OF APPEAL BY THE DEPARTMENT IS DEVOID OF ANY SUBSTANCE AND DESERVES TO BE REJECTED. THEREF ORE, HE PRAYED TO DISMISS THE REVENUES APPEAL AND APPEAL OF THE ASSE SSEE MAY KINDLY BE ALLOWED. ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 14 5. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUPP ORTED THE ORDER OF THE LD ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE BA LANCE SHEET OF THE ASSESSEE SHOWS THAT THE ASSESSEE HAS NO FIXED ASSETS IN THE FORM OF TRUCKS. THEREFORE, THE CONTENTION OF THE ASSESSEE S EEMS TO BE CORRECT WHEREBY HE HAS SUBMITTED THAT HE HAS BEEN HIRING THE TRUCKS FROM THE TRUCK OPERATORS/TRUCK OWNERS AND PROVIDING THEM ON R ENT TO THE COMPANY NAMELY RUCHI SOYA. THE ACCOUNTS OF THE ASSESSEE HAVE DULY BEEN EXAMINED AND IT REVEALS THAT NEITHER THE MAINTENANC E NOR THE OTHER CHARGES FOR RUNNING OF THE TRUCKS HAVE BEEN DEBITED TO THE ACCOUNTS OF THE ASSESSEE. IN OUR VIEW, THE ADDITION SUSTAINED BY THE LD CIT(A) ARE REQUIRED TO BE DELETED AS THE AMOUNT WERE RECEIVED BY THE ASSESSEE ON BEHALF OF THE TRUCK OWNERS AND THEREFORE THE ENTIRE AMOUNT CANNOT BE TREAT AS INCOME OF THE ASSESSEE. HOWEVER, SINCE THE ASSESSEE IS CLAIMING COMMISSION ON EACH BUILTY TO THE EXTENT OF RS. 500/ - IS CONFIRMED. THE ASSESSING OFFICER IS DIRECTED TO CALCULATE THE RECE IPT OF THE ASSESSEE @ RS. 500/- PER BUILTY FOR THE TRUCKS SUPPLIED TO RUC HI SOYA INDUSTRIES. WE HEREBY CLARIFY THAT THE ASSESSEE SHALL NOT BE ENTIT LED TO ANY DEDUCTION ON ACCOUNT OF BROKERAGE, COMMISSION, TELEPHONE EXPENSE S, EMPLOYEES ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 15 EXPENSES OR ANY OTHER EXPENSES WHATSOEVER AGAINST T HE INCOME SO CALCULATED BY THE LD ASSESSING OFFICER. THE ASSESSI NG OFFICER IS FURTHER DIRECTED TO GIVE THE BENEFIT OF ANY PAYMENT MADE BY THE ASSESSEE (ONE DURING THE PROOF OF PAYMENT) TO THE TRUCK OWNERS WHO HAVE SUPPLIED THE TRUCKS TO M/S RUCHI SOYA. ACCORDINGLY, WE PARTLY A LLOW THE APPEAL OF THE ASSESSEE. ITA NO. 452/JP/2013 THE LD ASSESSING OFFICER HAS ISSUED A RECTIFICATION ORDER ON 21/4/2015 WHEREBY RECTIFICATION WAS MADE AND COMPUTATION OF INC OME HAS BEEN DERIVED TO THE AMOUNT OF RS. 14,76,400/- WHILE DOING SO THE ASSESSING OFFICER HAS GIVEN THE BENEFIT OF THE RECEIPT FOR TH E ASSESSMENT YEAR 2008- 09. THE PRESENT ASSESSMENT ORDER IS FOR THE ASSESSME NT YEAR 2009-10 WHEREIN THE INCOME RECEIPT IN THE ASSESSMENT YEAR 20 08-09 HAS BEEN INCLUDED IN THE INCOME OF THE ASSESSEE FOR THE PRES ENT YEAR. SINCE THE RECTIFICATION OF THE EARLIER YEAR FOR A.Y. 2008-09 HAS ALREADY BEEN DONE BY THE LD ASSESSING OFFICER, THEREFORE, NO FRESH ADDIT ION CAN BE MADE ON THIS GROUND FOR THE ASSESSMENT YEAR 2009-10. HOWEVER, BES IDES THE ABOVE, THE AMOUNT IN THE APPEAL OF THE REVENUE, IS FOR AN AMOUNT OF RS. 15,54,400/-, SINCE THE AMOUNT IS LESS THAN THE TAX LIMIT AS STIPULATED BY THE CBDT VIDE CIRCULAR DATED 10/12/2015, THEREFORE, ALSO THE APPEAL OF ITA 507 & 452/JP/2013_ RAM KISHAN VS ITO 16 THE REVENUE IS REQUIRED TO BE DISMISSED. ACCORDINGL Y, APPEAL OF THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED AND REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/07/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 04 TH JULY, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAM KISHAN, BUNDI. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, BUNDI. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 506 & 452/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR