SHRI PANKAJ D DUBEY, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-26(2), MUMBAI

ITA 6065/MUM/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7593 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 29-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VDAYA BHASKAR JAKKE
• Section: 143(3); 13; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6065/MUM/2017 ASSESSMENT YEAR: 2012 - 13 SHRI PANKAJ DHARMRAJ DUBEY, 73/2464, NEHRU NAGAR, KURLA (EAST), MUMBAI - 400024. VS. ACIT, CIR 26(2), AAYAKAR BHAVAN, MUMBAI. PAN NO. ABXPD4430F APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MR. VDAYA BHASKAR JAKKE, DR DATE OF HEARING : 27/01/2020 DATE OF PRONOUNCEMENT : 28/01/2020 ORDER PER N.K. PRADHAN, A.M. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 38 [IN SHORT CIT(A)], MUMBAI AND ARISES O UT OF THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). THOUGH, THE CASE WAS FIXED FOR HEARING ON 27 .01.2020 NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE TRIBUNAL ON THE ABOVE DATE. IN VIEW OF THE NON - COMPLIANCE BY THE ASSESSEE, WE ARE PROCEEDING TO DISPOSE OFF THIS APPEAL AFTER PERUSING THE MATERIALS AVAILABLE ON RECORD AND HEARING THE DE PARTMENTAL REPRESENTAT IVE (DR). SHRI PANKAJ D DUBEY ITA NO. 6065/MUM/2017 2 2. THE 1 ST GROUND RAISED IN THIS APPEAL IS AGAINST THE DISALLOWANCE MADE BY THE ASSESSING OFFICER (AO) @ 10% OF TOTAL EXPENSES OF RS.3,17,02,694/ - (FUEL AND OIL EXPENSES OF RS.3,03,22,189/ - AND LOADING AND UNLOADING EXPENSES OF RS.13,80,505/ - ). BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2012 - 13 ON 13.09.2012 DECLARING TOTAL LOSS OF RS.32,43,080/ - . THE ASSESSEE IS RUNNING A PROPRIETARY CONCERN IN THE NAME AND STYLE OF M/S SHREE KEDARNATH PETROLEUM, ENGAGED IN THE BUSINESS OF TRADING IN MOTOR SPIRIT, HIGH SPEED DIESEL, OIL ETC. IT IS RECORDED BY THE AO THAT IN RESPONSE TO A QUERY RAISED BY HIM TO SUBSTANTIATE THE CLAIM OF FUEL AND OIL EXPENSES ; LOADING AND UNLOADING EXPENSES, THE ASSESS EE FAILED TO FILE VOUCHERS FOR VERIFICATION. ON THE BASIS OF THE ABOVE OBSERVATION, THE AO MADE A DISALLOWANCE OF RS.31,70,269/ - (10% OF TOTAL EXPENSES OF RS.3,17,02,694/ - ). 3. IN APPEAL, THE LD. CIT(A) CONFIRMED THE ABOVE DISALLOWANCE MADE BY THE AO ON TH E REASON THAT THE BURDEN OF PROVING THAT A PARTICULAR EXPENDITURE HAS BEEN LAID DOWN OR EXPENDED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS IS ON THE ASSESSEE. AS IN THE PRESENT CASE, THE ASSESSEE FAILED TO DISCHARGE HIS BURDEN, THE AO HAS RIGHTLY MADE THE DISALLOWANCE, AS OBSERVED BY THE LD. CIT(A). 4. BEFORE US, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). 5. WE HAVE PERUSED THE RELEVANT MATERIALS ON RECORD AND HEARD THE LD. DR . I N THE INSTANT CASE THE AO VIDE ORDER DATED 27.03.2015 H AS OBSERVED AT PARA 3 THE FOLLOWING : 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS VARIOUS DETAILS IN RELATION TO THE INCOME DERIVED BY THE ASSESSEE HAVE BEEN CALLED FOR. THE DETAILS CALLED FOR SHRI PANKAJ D DUBEY ITA NO. 6065/MUM/2017 3 HAVE BEEN DULY SUBMITTED BY THE ASSESSEE AND WHICH HAVE BEEN VERIFIED. BASED ON THE VERIFICATION OF DETAILS AND SUBMISSIONS FURNISHED BY THE ASSESSEE, THE ASSESSMENT PROCEEDING WAS COMPLETED AS UNDER. IN SUCH A SCENARIO, WE DEEM IT FIT TO COME TO A FI NDING THAT THE DISALLOWANCE ESTIMATED BY THE AO IS EXCESSIVE. CONSIDERING THE FACTS OF THE CASE, WE DIRECT THE AO TO RESTRICT THE DISALLOWANCE TO 5% OF THE EXPENSES OF RS.3,17,02,694/ - . THUS THE 1 ST GROUND OF APPEAL IS PARTLY ALLOWED. 6. THE 2 ND GROUND RAISED BY THE ASSESSEE IN THIS APPEAL IS AGAINST THE ORDER OF THE LD. CIT(A) CONFIRMING THE ORDER OF THE AO ON NON - ISSUANCE OF INCOME TAX REFUND. THE ABOVE GROUND WAS RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A). WE FIND THAT VIDE ORDER DATED 31. 07.2017 THE LD. CIT(A) DISMISSED THE ABOVE GROUND OF THE ASSESSEE BY OBSERVING THAT : 3. THE SECOND GROUND OF APPEAL RAISED BY THE APPELLANT IS WITH REGARD TO NON - ISSUANCE OF INCOME TAX REFUND AMOUNTING TO RS.4,83,629/ - . 3.1 IT IS OBSERVED THAT THE APPEL LANT HAS NEITHER MADE ANY SUBMISSION IN REGARD TO THE AFORESAID GROUND IN THE STATEMENT OF FACTS FILED WITH THE APPEAL IN FORM NO. 3 5 NOR DU R ING THE COURSE OF APPELLATE PROCEEDINGS DESPITE THE FACT THAT SEVERAL OPPORTUNITY HAD ALREADY BEEN PROVIDED TO THE APPELLANT. THE FACT REMAINS THAT THERE HAS BEEN AN ADDITION OF RS.31,70,269/ - MADE BY THE AO TO THE TOTAL INCOME OF THE APPELLANT BY DISALLOWING THE TOTAL LOSS OF RS.32,43,080/ - CLAIMED BY THE APPELLANT. SINCE THE AFORESAID ADDITION STANDS CONFIRMED VIDE T HIS ORDER AND IN ABSENCE OF ANY DETAILS FURNISHED BY THE APPELLANT IN THIS REGARD, THE AFORESAID GROUND OF APPEAL IS TREATED AS DISMISSED. 6.1 THE ISSUE HERE IS NON - ISSUANCE OF TAX REFUND OF RS.4,83,629/ - . IT IS NOT PROPER ON THE PART OF THE LD. CIT(A) TO SUMMARILY REJECT THE CLAIM OF THE ASSESSEE FOR TAX REFUND. HAVING CONSIDERED THE FACTS OF THE CASE, WE SET SHRI PANKAJ D DUBEY ITA NO. 6065/MUM/2017 4 ASIDE THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO VERIFY THE CLAIM OF TAX REFUND OF RS.4,83,629/ - MADE BY THE ASSESSEE AND ALLOW REFUND AS P ER THE PROVISIONS OF THE ACT. WE DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. THUS THE 2 ND GROUND OF APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/01/2020. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 28/01/2020 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI