M/s Unique Carriers Pvt. Ltd., Chandigarh V. ITO, W-5(1), Chandigarh

ITA 557/CHANDI/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8701 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VANDNA MOHITE
• Keywords: TDS; Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, B CHANDIGARH , !' #$ % & ' ($ , )* BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 557/CHD/2019 / ASSESSMENT YEAR : 2012-13 M/S UNIQUE CARRIERS PVT. LTD., PLOT NO.13, TRANSPORT AREA, SECTOR 26, CHANDIGARH THE ITO, WARD 5(1), CHANDIGARH ./PAN NO: AAACU2448R / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI PARIKSHIT AGGARWAL, CA ' ! / REVENUE BY : SMT.VANDNA MOHITE, SR.DR # $ % /DATE OF HEARING : 31.10.2019 &'() % / DATE OF PRONOUNCEMENT : 18.11.2019 )+/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 28.02.2019 OF THE COMMISSIONER OF INCO ME TAX (APPEALS)-2 CHANDIGARH [HEREINAFTER REFERRED TO AS CIT(A)] 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- ITA NO. 557/CHD/2019- M/S UNIQUE CARRIERS PVT. LTD, CHANDIGARH 2 1. THAT ON THE FACTS, CIRCUMSTANCES AND LEGAL POSITION OF THE CASE, THE WORTHY CIT(A) IN APPEAL NO. 106/15-16 HAS ERRED IN PASSING THAT ORDER IN CONTRAVENTION OF THE PROVISIONS OF S. 250(6) OF THE INCOME TAX ACT, 1961. 2. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. 1,20,000/- ON ADHOC BASIS BY DISALLOWING CERTAIN EXPENSES ON ACCOUNT OF NON MAINTAINABILITY OF EXTERNAL VOUCHERS EVEN WHEN THE BOOKS OF ACCOUNTS WERE PRODUCED AND DULY VERIFIED BY THE LD. AO. 3. THAT ON LAW, FACTS AND CIRCUMSTANCES OF THE CASE, THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN MAKING ADDITION OF RS. 7,85,332/- TO THE INCOME ON ACCOUNT OF DIFFERENCE I N RECEIPTS AS PER FORM 26AS AND AS PER BOOKS OF ACCOUNTS EVEN WHEN THE SAID DIFFERENCE WAS NOT TAXABLE INCOME OF THE APPELLANT. 4. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITION, DELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE SAME. 3. AT THE OUTSET , THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT HE DOES NOT PRESS GROUND NO.2 . GROUND NO.2 IS, THEREFORE, DISMISSED AS NOT PRESSED. 4. GROUND NOS. 1 & 4 : GROUND NO.1 & 4 ARE GENERAL IN NATURE AND DO NOT REQUIRE ANY SPECIFIC ADJUDICATION. 5. NOW, WE ARE LEFT WITH GROUND NO.3 ONLY OF THE APPEAL, WHEREBY, THE ASSESSEE HAS AGITATED THE CONFIRMATION OF ADDIT ION MADE BY THE ITA NO. 557/CHD/2019- M/S UNIQUE CARRIERS PVT. LTD, CHANDIGARH 3 ASSESSING OFFICER OF RS. 7,85,332/- ON ACCOUNT OF D IFFERENCE IN RECEIPTS AS SHOWN IN FORM 26AS VIS-A-VIS BOOKS OF ACCOUNT OF THE ASSESSEE. 6. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSEE IS A TRANSPORTER AND ENGAGED IN TRANSPORTATION OF THE GO ODS. THE ASSESSEE NOT ONLY USES ITS OWN TRUCKS BUT ALSO HIRES / ENGAGES T RUCKS / VEHICLES OF OTHER PARTIES FOR THE SAID PURPOSE. THE ASSESSING O FFICER DURING THE YEAR UNDER CONSIDERATION NOTICED THAT THERE WAS DIFFEREN CE IN THE RECEIPTS AS PER THE BOOKS OF ACCOUNT OF THE ASSESSEE WHEN COMPA RED WITH THE FORM 26AS IN RESPECT OF FIVE PARTIES, DETAILED AS UNDER: - SR NO. NAME OF THE DEDUCTOR RECEIPT AS PER FORM 26AS RECEIPT AS PER BOOKS OF THE ASSESSEE DIFFERENCE 1. PIONEER HOSE & HYDRACULICS (P) LTD. RS. 11,715 RS. 10,245 RS. 1,470 2. R P S VIKAS CASTINGS PRIVATE LIMITED RS. 85,765 RS. 83,885 RS. 1,880 3. OHRI MARBLE AND SANITARY WORKS RS. 6,45,134 RS. 12,600 RS.6,32,534 4. MODERN STEELS LIMITED RS. 1,43,265 RS. 18,060 RS. 1,25,205 5. BHARAT GEARS LIMITED RS. 3,02,057 RS. 2,77,814 RS. 24,243 TOTAL RS. 11,87,936 RS. 4,02,604 RS.7,85,332 HE, THEREFORE, MADE THE ADDITION OF RS. 7,85,332/- RELATING TO THE DIFFERENCE IN THE RECEIPTS. ITA NO. 557/CHD/2019- M/S UNIQUE CARRIERS PVT. LTD, CHANDIGARH 4 7. BEING AGGRIEVED BY THE ABOVE ORDER OF THE ASSESS ING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). B EFORE THE LD. CIT(A), THE ASSESSEE EXPLAINED THAT SO FAR AS THE A MOUNT SHOWN TO HAVE BEEN RECEIVED FROM M/S BHARAT GEARS LIMITED WAS CON CERNED, THE SAID PARTY HAS MADE THE NECESSARY RECTIFICATION AND HAS FILED THE REVISED FORM 26AS. SO FAR AS THE ADDITION MADE BY THE ASSES SING OFFICER IN RESPECT OF DIFFERENCE IN THE AMOUNT RELATING TO M/S OHRI MARBLE & SANITARY WORKS AND MODERN STEEL LTD. WAS CONCERNED, THE ASSESSEE EXPLAINED THAT THE AMOUNT RECEIVED THROUGH DRIVERS WAS NOT REFLECTED IN THE LEDGER ACCOUNT OF THE SAID PARTY BUT REFLECTED IN THE LEDGER ACCOUNT OF THE TRUCK / VEHICLE. THAT ONLY THE AMOUNTS IN C HEQUES FROM THE PARTIES HAD BEEN RECORDED IN THE LEDGER OF THE PART IES AND THAT THE BALANCE RECEIVED THROUGH TRUCK DRIVERS CONCERNED HA D BEEN ENTERED IN CONCERNED TRUCK ACCOUNT. THOUGH, LD. CIT(A) IN THIS RESPECT OBSERVED THAT THE CONTENTION RAISED BY THE ASSESSEE SEEMED T O BE PLAUSIBLE, HOWEVER, HE OBSERVED THAT THE ASSESSEE COULD HAVE DULY CORROBORATED THE SAME BY FURNISHING CONFIRMATIONS FROM THE PARTI ES. IT WAS ALSO EXPLAINED TO THE CIT(A) THAT THE AMOUNT REFLECTED B Y THE TWO PARTIES NAMELY M/S RPS VIKAS CASTINGS PVT LTD AND M/S PIONE ER HOSE & HYDRAULICS (P) LTD DID NOT BELONG TO THE ASSESSEE. HOWEVER, THE LD. CIT(A) DID NOT AGREE WITH THE ABOVE CONTENTION AND GAVE RELIEF TO THE ASSESSEE ONLY IN RESPECT OF DIFFERENCE OF AMOUNT IN THE CASE OF BHARAT GEARS LIMITED. ITA NO. 557/CHD/2019- M/S UNIQUE CARRIERS PVT. LTD, CHANDIGARH 5 8. BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS SUBM ITTED THAT SINCE THE VEHICLES OF THE OTHER PARTIES WERE HIRED, HENCE , THE AMOUNT SHOWN TO HAVE BEEN PAID BY THE AFORESAID PARTIES WAS FURTHER PAID BY THE ASSESSEE TO THE RESPECTIVE VEHICLES. THE ASSESSEE HAD ONLY R ETAINED MARGIN OF THE FREIGHT AS ITS COMMISSION. THAT IT WAS DULY EXPLAIN ED TO THE CIT(A) THAT THE AMOUNT IN FACT WAS DULY PAID BY THE PARTIES TO THE RESPECTIVE TRUCK OWNERS, HOWEVER, ONLY THE TDS WAS DEDUCTED IN THE N AME OF THE ASSESSEE AS THE CONTRACT WAS IN THE NAME OF THE A SSESSEE. THE ASSESSEE ALSO FURNISHED THE REVISED LEDGER ACCOUNT IN THIS R ESPECT TO THE CIT(A) WHICH WAS ALSO FURTHER FORWARDED BY THE CIT(A) TO T HE ASSESSING OFFICER. THAT THE CLAIM OF THE ASSESSEE HAS BEEN R EJECTED ONLY ON THE GROUND THAT THE CONFIRMATION FROM THE RESPECTIVE TR UCK OWNERS WAS NOT FILED. 9. CONSIDERING THE ABOVE SUBMISSION OF THE ASSESSEE , AND THE FACT THAT THE ASSESSEE HAS DULY EXPLAINED THE ACCOUNTING AND ALSO THE FACT THAT THE AMOUNT IN QUESTION WAS CREDITED TO TO PAY FREI GHT CATEGORY IN THE BOOKS OF ACCOUNT, WE DO NOT SEE ANY JUSTIFICATION O N THE PART OF THE CIT(A) TO CONFIRM THE ADDITION MADE BY THE ASSESSIN G OFFICER. HOWEVER, AS EXPLAINED BY THE ASSESSEE, THE AMOUNT O F TDS SINCE HAS BEEN CREDITED TO THE ACCOUNT OF THE ASSESSEE, THE S AME CONSTITUTES THE INCOME OF THE ASSESSEE AND THE ASSESSEE IS LIABLE T O PAY THE DUE TAXES ON THE SAID AMOUNT. ITA NO. 557/CHD/2019- M/S UNIQUE CARRIERS PVT. LTD, CHANDIGARH 6 WITH THE ABOVE OBSERVATION, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO TREAT THE AMOUNT CREDITED IN THE TDS ACCOUNT OF THE ASSESSEE AS INCOME OF THE ASSESS EE. HOWEVER, THE ADDITION MADE BY THE ASSESSING OFFICER OTHERWISE IS ORDERED TO BE DELETED. THE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.11.2019. SD/- SD/- ( % & ' ($ / ANNAPURNA GUPTA) )* / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 18.11.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR