Smt. Ritu Singh, Bhopal V. Deputy Commissioner of Income Tax 5 (1), Bhopal

ITA 59/Ind/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0496 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-12-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 24-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR
• Keywords: Non-deduction of tax; Corroborative evidences; TDS
• Section: 142(1); 40(a)(ia); 201(1); 143(2)

Judgement Text

[ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.59/IND/2018 ASSESSMENT YEAR: 2013-14 SMT. RITU SINGH B-110, HABIBGANJ ALKAPURI BHOPAL / VS. DCIT BHOPAL ( APPELLANT ) ( REVENUE ) P.A. NO. BMIPS8854D APPELLANT BY SHRI HITESH CHIMNANI , A.R. RESPONDENT BY SHRI PUNEET KUMAR, SR. D.R. DATE OF HEARING: 11.12.2019 DATE OF PRONOUNCEMENT: 26.12.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS AGAINST ORDER OF THE CIT(A)-2, INDORE DATED 28.11.2017 PERTAINING TO THE ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE MADE U/ S 40(A)(IA) AMOUNTING [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 2 TO RS.10,12,921/- ON ACCOUNT OF NON-DEDUCTION OF TD S, WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADHOC DISALLOWANCES MADE BY THE LD. A.O. AMOUNTING TO RS.1,27,905/- (OUT OF RS.2,25,811/-) W ITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY, O R WITHDRAW ANY OF THE GROUNDS OF APPEALS AT THE TIME OF HEARING. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 1.10.2013 DEC LARING TOTAL INCOME OF RS.12,17,810/-. THEREAFTER, THE CASE WAS SELECTED THROUGH CASS FOR DETAILED SCRUTINY. ACCORD INGLY, THE A.O. ISSUED A NOTICE U/S 143(2) OF THE INCOME TA X ACT, 1961 (HEREINAFTER CALLED AS THE ACT). A NOTICE U/S 142(1) OF THE ACT WAS ISSUED ON 6.7.2015. THE A.O. PROCEEDED TO MAKE ASSESSMENT, THEREBY HE DISALLOWED THE CLAIM OF COMMISSION OF RS.10,12,921/- AND MADE ADDITION OF RS.21,66,518/- ON ACCOUNT OF NON-DEDUCTION OF TAX. FURTHER, THE A.O. MADE ADDITION OF RS.14,957/- IN RE SPECT OF UNDISCLOSED AMOUNT OF TDS. FURTHER, THE A.O. MADE A LUMPSUM ADDITION OF RS.2,25,811/- IN RESPECT OF ADHO C [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 3 DISALLOWANCES RELATED TO CONVEYANCE, PRINTING, STATIONER Y AND OFFICE EXPENSES. AGGRIEVED AGAINST THIS, THE ASSES SEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSID ERING THE SUBMISSIONS, PARTLY ALLOWED THE APPEAL, THEREBY THE LD. CIT(A) CONFIRMED THE ADDITION OF RS.10,12,921/- FOR NON- DEDUCTION OF TAX AT SOURCE AND SUSTAINED DISALLOWANCE OF RS.1,28,905/- OUT OF TOTAL DISALLOWANCE MADE ON ACCOUNT OF ADHOC DISALLOWANCES OF EXPENSES RELATED TO COMMISSION, CONVEYANCE, OFFICE EXPENDITURE, REPAIR & MAINTENANCE, E TC. NOW THE ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIB UNAL. 3. GROUND NO.1 IS AGAINST ADDITION OF RS.10,12,921/- MADE BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) FOR DEDUCTION OF TAX. LD. COUNSEL FOR THE ASSESSEE REIT ERATED THE SUBMISSIONS AS MADE BEFORE LD. CIT(A). HE FURTH ER CONTENDED THAT THE DEDUCTEE HAS DULY DISCLOSED THE AMOUNT IN THE RETURN OF INCOME. HENCE, NO DISALLOWANC E IS [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 4 CALLED FOR. HE SUBMITTED THAT LD. CIT(A) IN UTTER DI SREGARD TO THE BINDING PRECEDENTS WHICH WERE SET BEFORE HIM REJECTED THE SUBMISSIONS OF THE ASSESSEE IN A WHIMSIC AL MANNER. HE SUBMITTED THAT COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAJIV KUMAR AGRAWAL VS. ADDL. COMMISSIONER OF INCOME TAX (2014) 45 TAXMANN.COM 555 (AGRA) IN ITA NO.337/AGRA/2013 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HE FURTHER CONTENDED THAT THE HON'BLE TRIBUNAL HAD RELIED ON THE JUDGEMENT OF THE HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF CIT VS. RAJINDER KUMAR 362 ITR 241. LD. COUNSEL FURTHER PLAC ED RELIANCE ON THE JUDGEMENT OF THE HON'BLE SUPREME COU RT RENDERED IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS. CIT IN CIVIL APPEAL NO.3765 OF 2007, 2 93 ITR 226. 4. LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE LD. CIT(A). [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 5 5. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. LD. CIT(A) HAS DECIDED THI S ISSUE BY OBSERVING AS UNDER: [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 6 6. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAJIV KUMAR AGRAWAL VS. ADDL. CIT (SUPRA) HAS DECID ED THE ISSUE IN PARA NOS.6 TO 9 AS UNDER: [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 7 [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 8 [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 9 7. FURTHER, THE HON'BLE APEX COURT IN THE CASE OF HINDUSTAN COCA COLA BEVERAGES PVT. LTD. VS. CIT 293 ITR 226 HAS HELD AS UNDER: 10. BE THAT AS IT MAY, CIRCULAR NO.275/201/95-IT( B) DATED JANUARY, 29, 1997 ISSUED BY THE CENTRAL BOARD OF DI RECT TAXES, IN OUR CONSIDERED OPINION, SHOULD PUT AN END TO THE CO NTROVERSY. THE CIRCULAR DECLARES NO DEMAND VISUALISED U/S 201(1) OF THE INCOME TAX ACT SHOULD BE ENFORCED AFTER THE TAX DEDUCTOR H AS SATISFIED THE OFFICER-IN-CHARGE OF TDS, THAT TAXES DUE HAVE BEEN PAID BY THE DEDUCTEE-ASSESSEE. HOWEVER, THIS WILL NOT ALTER TH E LIABILITY TO CHARGE INTEREST U/S 201(1A) OF THE ACT TILL THE DAT E OF PAYMENT OF TAXES BY THE DEDUCTEE-ASSESSEE OR THE LIABILITY FOR PENALTY U/S 271C OF THE INCOME-TAX ACT. 11. IN THE INSTANT CASE, THE APPELLANT HAD PAID IN TEREST U/S 201(1A) OF THE ACT AND THERE IS NO DISPUTE THAT THE TAX DUE HAD BEEN PAID BY THE DEDUCTEE-ASSESSEE (M/S.PRADEEP OIL COR PORATION). IT IS NOT BEFORE US THAT CIRCULAR IS APPLICABLE TO THE FA CT SITUATION ON HAND. 8. THE LD. CIT(A) IN VIEW OF THE ABOVE BINDING PRECEDENT OUGHT TO HAVE DELETED THE ADDITION BUT HE MISDIRECTED HIMSELF. WHEN THE ISSUE HAS BEEN DECIDE D BY THE HIGHER FORUM AFTER CONSIDERING THE LAW AND ISSUE IN QUESTION, HE IS UNDER STATUTORY OBLIGATION TO FOLLOW I T. ANY [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 10 DEVIATION THERE FROM WOULD TANTAMOUNT THE CONTEMPT OF LAWFUL AUTHORITY AND AGAINST THE JUDICIAL DISCIPLINE. I THEREFORE, RESPECTFULLY FOLLOWING THE JUDGEMENT OF THE HON'BLE APEX COURT RENDERED IN THE CASE OF HINDUSTAN C OCA COLA BEVERAGES PVT. LTD. VS. CIT (SUPRA) AND THE DECISI ON OF COORDINATE BENCH IN THE CASE OF RAJIV KUMAR AGRAWAL VS. ADDL. CIT DIRECT THE A.O. TO DELETE THIS ADDITION. 9. GROUND NO.2 IS AGAINST SUSTAINING THE ADDITION OF RS.1,27,905/- OUT OF RS.2,25,811/-. LD. COUNSEL FO R THE ASSESSEE CONTENDED THAT THE A.O. MADE ADDITION IN LUMPSUM ON THE GROUND THAT SOME OF THE VOUCHERS WERE NOT PRODUCED. THE A.O. HAS NOT STATED AS TO WHAT WERE THE VOUCHERS, WHICH WERE NOT PRODUCED. IT IS FURTHER CONTENDED THAT NO SPECIFIC DEFECT WAS POINTED OUT BY THE A.O. HE HAS NOT POINTED OUT ANY SPECIFIC VOUCHERS, W HICH WAS NOT PRODUCED. [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 11 10. PER CONTRA, LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. HE CONTENDED THAT IT WAS INCUMBENT UPON THE ASSESSEE TO PRODUCE BILLS & VOUCHERS IN SUPPORT OF HIS CLAIM LOO KING TO THE SMALLNESS OF AMOUNT. THE A.O. WAS JUSTIFIED UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TO MAKE A LUMPSUM ADDITION ON ADHOC BASIS. 11. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE CLAIMED CERTAIN EXPENDITURE, WHICH WAS REQUIRED TO BE SUBSTANTIATED BY SUPPORTING EVIDENCES. NON-FURNISHING OF SUCH EVIDE NCES WOULD CERTAINLY RESULT INTO DISALLOWANCE OF THE EXPEND ITURE. LD. A.R. COULD NOT POINT OUT THAT WHAT WERE THE EVIDE NCES PLACED BEFORE THE ASSESSING AUTHORITY, WHICH WAS SUFFIC IENT TO INFER THAT THE EXPENDITURE IS DULY SUPPORTED BY T HE EVIDENCES. MOREOVER, LD. CIT(A) HAS FURTHER REDUCED THE [ITA NO.59/IND/2018] [SMT. RITU SINGH, BHOPAL] 12 DISALLOWANCE BY TAKING A REASONABLE VIEW. THIS GROUND O F THE ASSESSEES APPEAL IS DISMISSED. APPEAL OF THE ASSES SEE IS PARTLY ALLOWED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26 . 12.2019. SD/- (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 26/12/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE