ACIT, CHENNAI V. M/s. Welcome Fisheries Ltd., CHENNAI

ITA 551/CHNY/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0702 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 25-02-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 28-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ITA NO.333/MDS/2011 ASST. YEARS : 2003-04 M/S.WELLCOME FISHERIES LTD., G-5, AMAR SINDUR, #43, PANTHEON ROAD, EGMORE, CHENNAI 600 008. PAN : AACW3111F. (APPELLANT) V. THE INCOME TAX OFFICER (OSD), COMPANY CIRCLE III(3), CHENNAI 600 034. (RESPONDENT) ITA NO.551/MDS/201 ASST. YEARS : 2003-04 THE INCOME TAX OFFICER (OSD), COMPANY CIRCLE III(3), CHENNAI 600 034. (APPELLANT) V. M/S.WELLCOME FISHERIES LTD., G-5, AMAR SINDUR, #43, PANTHEON ROAD, EGMORE, CHENNAI 600 008. PAN : AACW3111F (RESPONDENT) ASSESSEE BY : MR. PHILIP GEORGE, A DVOCATE DEPARTMENT BY : MR. GURU BASHYAM, JCIT DATE OF HEARING : 25 FEB 2013 DATE OF PRONOUNCEMENT : 28 FEB 2013 ITA 333 & 551/MDS/11 2 O R D E R PER BENCH: THESE APPEALS ARE FILED BY THE ASSESSEE AND DEPAR TMENT AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-III, CHENNAI, DATED 22.12.2010 FOR THE ASST. YEAR 2003-0 4. 2. IN THIS CASE, THE ASSESSING OFFICER REOPENED T HE ASSESSMENT UNDER SEC.147 OF THE ACT AND COMPLETED T HE REASSESSMENT ON 24.12.2009 UNDER SEC.143(3) READ WI TH SEC.147 OF THE ACT DETERMINING THE INCOME OF THE ASSESSEE AT C .1,12,07,584/- AS AGAINST INCOME OF C.75,72,840/- DETERMINED IN THE O RIGINAL ASSESSMENT ORDER PASSED UNDER SEC.143(3) OF THE ACT . WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER DIS ALLOWED SALES-TAX OF C.36,34,744/- ON THE GROUND THAT THERE IS NO REL EVANT MATERIAL IN SUPPORT OF THE CLAIM OF THE ASSESSEE THAT SALES-TAX OF C.36,34,744/- WAS PAID BY THE ASSESSEE. ON APPEAL, THE COMMISSIO NER OF INCOME TAX (APPEALS) ALLOWED RELIEF OF C.30,21,202/- OUT O F C.36,34,744/- BASED ON THE CERTIFICATES PRODUCED BY THE ASSESSEE FROM CTO., WHO ITA 333 & 551/MDS/11 3 CERTIFIED THAT C.30,21,202/- ( C.15,21,202 & C.15,0 0,000) WAS PAID BY THE ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPE ALS), HOWEVER, SUSTAINED THE BALANCE DISALLOWANCE OF C.6,14,542/-. AGAINST THIS ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE FILED APPEAL FOR ALLOWANCE OF C.6,14,542/- AND THE DEPART MENT FILED APPEAL AGAINST DELETION OF C.30,21,202/-. 3. THE DEPARTMENTAL REPRESENTATIVE SUBMITS THAT TH E ASSESSEE DURING THE COURSE OF PROCEEDINGS BEFORE CO MMISSIONER OF INCOME TAX (APPEALS) PRODUCED A CERTIFICATE ISSUED BY THE CTO AND COPY OF LEDGER ACCOUNT TO ESTABLISH THAT THE ASSESS EE MADE PAYMENT OF SALES-TAX TO THE EXTENT OF C.30,21,202/-. REFER RING TO THE COPY OF LEDGER FILED BY THE ASSESSEE, THE REVENUE SUBMITS T HAT THE CHEQUE NUMBER GIVEN BY THE ASSESSEE REFLECTED IN THE LEDGE R ACCOUNT WAS 091148 DATED 27.3.2003 FOR C.15,21,202/- WHEREAS IN THE CERTIFICATE GIVEN BY THE CTO, IT WAS MENTIONED THAT C.15,21,202 /- WAS PAID BY WAY OF CHEQUE NO.096909 DATED 6.5.2003 TOWARDS SALE S-TAX. THE DEPARTMENTAL REPRESENTATIVE SUBMITS THAT IN THE CER TIFICATE ISSUED BY ITA 333 & 551/MDS/11 4 CTO IT WAS NO WHERE MENTIONED THAT FOR WHICH ASST. YEAR THE PAYMENT WAS MADE. THE DEPARTMENTAL REPRESENTATIVE SUBMITS THAT IN ANY EVENT, THESE DETAILS WERE NOT PRODUCED BY TH E ASSESSEE BEFORE THE ASSESSING OFFICER AND, THEREFORE, THE COMMISSIO NER OF INCOME TAX (APPEALS) SHOULD HAVE CALLED FOR A REMAND REPOR T AND DECIDED THE ISSUE. THEREFORE, THE DEPARTMENTAL REPRESENTAT IVE REQUESTED FOR REMANDING THE MATTER TO THE FILE OF THE ASSESSING O FFICER FOR FRESH EXAMINATION IN THE LIGHT OF FRESH EVIDENCE SUBMITTE D BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. THE COUNSEL FOR THE ASSESSEE SUBMITS REFERRING TO THE COPY OF LEDGER THAT INITIALLY THE ASSESSEE HAS ISSU ED A CHEQUE DATED 27.3.2003 VIDE CHEQUE NUMBER 091148 FOR C.15,21,202 /- AND THIS CHEQUE WAS BOUNCED AND THE ASSESSEE MADE APPROPRIAT E ENTRY IN THE LEDGER ACCOUNT. LATER, ANOTHER CHEQUE WAS ISSUED F OR PAYMENT OF C.15,21,202/- VIDE CHEQUE NO.096905 DATED 19.4.2003 . HOWEVER, HE SUBMITS THAT EVEN THIS CHEQUE WAS BOUNCED. SUBSEQU ENTLY, ANOTHER CHEQUE WAS GIVEN BEARING NO.096909 AND PAID THE SAL ES-TAX OF C.15,21,202/- FOR WHICH THE CTO HAS GIVEN THE CERTI FICATE IN PROOF OF ITA 333 & 551/MDS/11 5 PAYMENT OF SALES-TAX. THE COUNSEL FOR THE ASSESSE E FURTHER SUBMITS THAT SIMILARLY, THE ASSESSEE ALSO PAID C15 LAKHS T HROUGH CHEQUE NO.759086 DATED 30.12.2002 TOWARDS TAX FOR THE ASST . YEAR 1999- 2000. THEREFORE, THE COUNSEL FOR THE ASSESSEE SUB MITS THAT SINCE THE ASSESSEE HAS PAID SALES-TAX OF C.30,21,202/- TH E SAME HAS TO BE ALLOWED AS DEDUCTION WHILE COMPUTING THE INCOME. T HE COUNSEL FOR THE ASSESSEE FURTHER SUBMITS THAT THE ASSESSEE HAS PAID THE ENTIRE SALES-TAX AMOUNT TO THE TUNE OF C.36,27,871/- AS SH OWN IN THE LEDGER ACCOUNT BY VARIOUS CHEQUES AND, THEREFORE, THERE IS NO JUSTIFICATION IN DISALLOWING THE SAME ON THE GROUND THAT IT WAS N OT PAID. IN ANY CASE, THE COUNSEL FOR THE ASSESSEE SUBMITS THAT TH E ASSESSEE HAS NO OBJECTION IN REMITTING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING THE PAYMENTS MADE BY THE ASSE SSEE TOWARDS SALES-TAX. 5. WE HAVE HEARD BOTH SIDES. PERUSED THE MATERIAL S ON RECORD AND THE ORDERS OF AUTHORITIES BELOW AND COPI ES OF LEDGER ACCOUNTS AND CERTIFICATE PRODUCED BY THE ASSESSEE. THE ASSESSING OFFICER DISALLOWED SALES-TAX OF C.36,37,821/- ON TH E GROUND THAT NO ITA 333 & 551/MDS/11 6 MATERIAL EVIDENCE WAS FILED BY THE ASSESSEE AT THE TIME OF ASSESSMENT. THE ASSESSEE PRODUCED MATERIALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) BY WAY OF CERT IFICATES ISSUED BY CTO IN PROOF OF PAYMENT OF SALES-TAX OF C.30,21, 202/- OUT OF SALES-TAX OF C.36,27,871/-. FURTHER, IT IS THE CO NTENTION OF THE ASSESSEE THAT IT HAD PAID THE ENTIRE SALES-TAX OF C .36,27,871/- AS SHOWN IN THE LEDGER ACCOUNT. IN OUR VIEW, SINCE TH E ASSESSING OFFICER DID NOT HAVE THE OCCASION TO VERIFY THE PAYMENTS WI TH REFERENCE TO THE SUBMISSIONS AND EVIDENCE PRODUCED BY THE ASSESS EE, WE FEEL THAT THIS MATTER SHOULD GO BACK TO THE ASSESSING OFFICER FOR EXAMINATION AFRESH. IN THE CIRCUMSTANCES, WE SET ASIDE THE ISS UE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE D OCUMENTS, EVIDENCE PRODUCED ETC., BY THE ASSESSEE IN SUPPORT OF ITS CLAIM THAT THESE AMOUNTS ARE PAID TOWARDS SALES-TAX, AFTER PRO VIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ITA 333 & 551/MDS/11 7 6. IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FO R STATISTICAL PURPOSE. 7. ORDER PRONOUNCED ON THURSDAY, THE 28 TH DAY OF FEBRUARY 2013, AT CHENNAI. SD/- SD/- ( N.S. SAINI ) (CHALLA N AGENDRA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED : 28 TH FEBRUARY 2013. JLS. COPY TO:- (1) APPELLANT (2) RESPONDENT (3) CIT-(A), (4) C.I.T., (5) D.R. (6) GUARD FILE