SHRI PRATIK BAHETY, Sanawad V. THE ACIT 5(1), Indore

ITA 524/IND/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5662 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 04-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHMD JAVED
• Keywords: Additional evidence
• Section: 40A(3); 143(3)

Judgement Text

SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 1 OF 6 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI PRATIK BAHETY 100 MG ROAD SANAWAD PIN CODE 451111 VS. ACIT CIRCLE 5(1) INDORE / APPELLANT / RESPONDENT PAN:AOIPB 9902 J / APPELLANT BY SHRI HITESH CHIMNANI CA / RESPONDENT BY SHRI MOHMD. JAVED, SR. (DR) / DATE OF HEARING 28.09.2016 / DATE OF PRONOUNCEMENT 24.10.2016 / O R D E R PER O. P. MEENA, ACCOUTANT MEMEBR. . . /. I.T.A. NO. 524 /IND/2014 ( ( / ASSESSMENT YEAR:2010-11 SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 2 OF 6 THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -II, INDORE (HEREINAFTER REFERRED TO AS THE LD. CIT (A)) DATED 31.03.2014. THIS APPEAL PERTAINS TO ASSESSMENT YEAR2010-11. THIS APP EAL ARISES OUT OF ASSESSMENT ORDER DTD. 29.01.2013 PASSED U/S . 143(3) OF INCOME TAX ACT, 1961 [HEREIN AFTER REFERRED TO AS ' THE ACT) BY THE [HEREINAFTER REFERRED TO AS THE AO]. THE GROUND W ISE DECISION IS AS UNDER: 1. GROUND NO.1 RELATES TO CONFIRMING THE ADDITION OF RS.15,30736/-ON ACCOUNT OF HIRING CHARGES. 2. THE ASSESSEE HAS DEBITED A SUM OF RS. 15,30,736/- A S HIRING CHARGES ON ROCK BREAKER AND HYDRAULIC DUMPE R IN THE CONTRACT ACCOUNT OF UNITY INFRA PROJECT LTD. (IN SH ORT UIPL) ON WHICH NO EVIDENCE OF TDS WAS FILED. IT WAS CLAIMED THAT THESE ARE NOT HIRING CHARGES BUT AMOUNT OF DEDUCTION MADE BY UIPL. FOR SUPPLY INFERIOR MATERIAL TO THEM. AS A PROOF, A SC ANNED COPY OF LETTER FROM UNITY INFRA PROJECT WAS FILED , WHICH WAS A RUNNING BILL FOR THE PERIOD FROM 11.4.2010 TO 25.4.2010 I. E. FOR LATER PERIOD AND HAD VARIOUS CUTTING HENCE THE ASSESSEE W AS ASKED TO FILE ORIGINAL COPY OF THE SAME. HOWEVER, THE ASSESS EE COULD NOT FILE ORIGINAL COPY HENCE, THE LETTER WAS HELD TO BE NOT GENUINE, AND SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 3 OF 6 PAYMENT OF EXPENSES WAS DISALLOWED. IN APPEAL BEFOR E CIT (A) , THE ASSESSEE HAS CHANGED THE STAND AND CLAIMED THAT EXPENDITURE PERTAINED TO WORK GOT DONE BY UIPL ON B EHALF OF THE ASSESSEE. HOWEVER, THE LD. CIT (A) HELD THAT EVEN I F THE UIPL HAS HIRED THE DUMPER EVEN THAN TDS WAS REQUIRED TO BE D ONE. BUT TDS HAS NOT BEEN DEDUCTED BY THE ASSESSEE OR UIPL W HICH HAS NOT BEEN CONTROVERTED BY THE ASSESSEE AT ANY STAGE. HENCE, DISALLOWANCE OF EXPENDITURE WAS CONFIRMED. 3. BEING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFOR E THIS TRIBUNAL. THE LD. A. R. SUBMITTED THAT TDS WAS DONE BY UIPL AS PER FORM NO 16A [ REFERRED PAPER BOOK PAGE 86-89] ON THE PAN NO. OF THE ASSESSEE AND NOT THE PAN NO OF THE SUPP LIER. THEREFORE, ISSUE MAY BE SET-ASIDE TO THE AO FOR FRE SH EXAMINATION. 4. THE LD. SENIOR (DR) RELIED ON THE ORDER OF THE LD. CIT (A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO DISALLOWED THE EXPENSES ON ACCOUNT OF NON GENUINENESS WHEREAS LD. CIT (A) DISALLOWED ON ACCOUNT OF NON DEDUCTION OF TDS. THEREFORE, IN FA IRNESS, WE SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 4 OF 6 DEEM FIT TO RESTORED THE ISSUE TO THE FILE OF THE A .O. FOR DENOVO FRESH EXAMINATION. 6. GROUND NO. 2 RELATES TO MAINTAINING ADDITION OF RS. 19,28,573/- ON ACCOUNT OF LOADING AND TRANSPORTATIO N EXPENSES. 7. THE AO DISALLOWED THE LOADING AND TRANSPORTATION EX PENSES ON THE GROUND THAT AS PER CONTRACT WITH MSK LTD. , THE ASSESSEE WAS HAVING CONTRACT FOR DRILLING AND BLASTING WORK AND NO TRANSPORTATION WORK. DURING APPEAL , THE ASSESSEE H AS FILED A CERTIFICATE FROM MSK LTD. EVIDENCING PAYMENT OF TRA NSPORTATION EXPENSES BY THE ASSESSEE AS ADDITIONAL EVIDENCE, T HIS ADDITIONAL EVIDENCE WAS SENT TO THE AO FOR REMAND REPORT. IN T HE REMAND REPORT, THE AO STATED THAT ADDITIONAL EVIDENCE IS N OT ADMISSIBLE, AS THE ASSESSEE FAILED TO FILE THE SAME BEFORE HIM EVEN AFTER AVAILING SUFFICIENT OPPORTUNITY. THUS THIS WAS NEIT HER ADMITTED BY THE LD. CIT (A) AND ADDITION WAS SUSTAINED. 8. BEFORE US , IT WAS PRAYED THAT MATTER BE SET-ASIDE TO THE AO FOR ADMISSION OF ADDITIONAL EVIDENCE AND FRESH DECI SION. 9. WE HAVE HEARD BOTH PARTIES AND IN AGREEMENT WITH LD . A.R. THAT MATTER NEEDS TO BE ADJUDICATED AS FRESH BY TH E AO. ACCORDINGLY , THE ISSUE IS RESTORED TO THE FILE OF THE A.O. FOR FRESH SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 5 OF 6 EXAMINATION AFTER AFFORDING OPPORTUNITY OF BEING HE ARD TO THE ASSESSEE. 10. GROUND NO. 3 RELATES TO MAINTAINING ADDITION OF RS. 25,67,665/- ON ACCOUNT OF SUPPRESSION OF CONTRACT R ECEIPTS. 11. THE AO NOTED THAT THE CONTRACT RECEIPTS WERE AT RS. 4.42 CRORE AS PER 26AS BUT THE ASSESSEE HAS SHOWN CONTRA CTOR RECEIPTS AT RS. 4.17 CRORE , THUS DIFFERENCE OF RS. 25,67,665/- WAS ADDED AS SUPPRESSION OF RECEIPTS. THE CIT (A) HAS CONFIRMED THE SAME . 12. BEFORE US IT WAS CLAIMED THAT THIS GROUND IS CONNEC TED WITH GROUND NO.1 ABOVE. THE DIFFERENCE IN CONTRACTOR REC EIPTS COMES AS THERE WAS REIMBURSEMENT OF EXPENSES OF RS. 15,3 0,726/- AND BALANCE AMOUNT OF RS. 10,36,939/- IS NOT RECEIVED B Y THE ASSESSEE. HOWEVER, THE AO NOR LD. CIT (A) HAS ACCEP TED THE CONTENTION OF THE ASSESSEE, HENCE IT WAS URGED THAT THIS ISSUE MAY BE SET-ASIDE TO THE AO FOR FRESH CONSIDERATION. 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES, AND PERUSED TH E MATERIAL AVAILABLE ON RECORD. WE ARE OF THE CONSIDERED VIEW THAT THE AO SHOULD ADMIT THE ADDITIONAL EVIDENCE AND DECIDE THE ISSUE AS SHRI PRATIK BAHETY/I.T.A. NO.524/IND/2014/A.Y:10-11 / PAGE 6 OF 6 FRESH. ACCORDINGLY. THIS IS SET-ASIDE TO THE AO ON THE LINES OF GROUND NO.1 ABOVE. 14. GROUND NO. 4 RELATES TO MAINTENANCE OF ADDITION OF RS. 23,606/- ON ACCOUNT OF CASH PAYMENTS U/S. 40A(3) OF THE ACT. 15. THE AO DISALLOWED THE EXPENSES OF RS. 23,606/- PA ID IN CASH ON ACCOUNT OF REPAIR AND MAINTENANCE. HOWEVER, THE ASSESSEE HAS CLAIMED THAT PAYMENT WAS MADE IN KOTPU TALI WHERE NO BANKING FACILITY AVAILABLE , HENCE SAME IS COVER ED BY RULE 6DD. 16. WE HAVE HEARD. SINCE , OTHER ISSUE ARE SET-ASIDE TO THE AO , THEREFORE, THIS ISSUE IS ALSO SET-ASIDE TO THE FILE OF THE A.O. FOR FRESH CONSIDERATION IN ACCORDANCE WITH LAW. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 18. THE ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.20 16. SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER + / DATED : 24 TH OCTOBER, 2016.OPM