DCIT, New Delhi V. M/s. Pace Express Travels & Cargo (P) Ltd., New Delhi

ITA 6157/DEL/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0192 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 08-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKRAM SAHAY
• Keywords: Rectification of order; Additional evidence
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F , NEW DELHI BEFORE SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI AT VARKEY, JUDICIAL MEMBER I.T.A.NO.61 57 /DEL/2013 (A.Y. 200 5 - 06 ) DCIT, CIRCLE 14(1) NEW DELHI VS. PACE EXPRESS TRAVELS & CARGO P LTD. KHASRA NO.1027/1, 1 ST FLOOR, PLOT NO.29 ROAD NO.6, MAHIPAL PUR EX. NH 8 NEW DELHI 110 037 PAN: AACCP 7113 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SH. VIKRAM SAHAY, SR. DR ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) - XVII, NEW DELHI DATED 12 .8.2013 PERTAINING TO THE ASSESSMENT YEAR (AY) 200 5 - 06 , ON THE FOLLOWING GROUNDS. 1. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN QUASHING THE RECTIFICATION ORDER U/S 154 OF THE ACT AND HOLDING THAT THERE WAS NO MISTAKE APPARENT FROM RECORD. 2 . ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT MISTAKE OF RS.97,70,312/ - IN INCOME DECLARED WAS EVIDENT OBVIOUS FROM RECORD. 3. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN TAKING INTO COGNIZANCE THE DETAILS FILED BY THE ASSESSEE REGARDING THE WORKING OF GROSS TURNOVER WITHOUT ADHERING THE PROVISIONS OF RULE 46A IN RESPECT OF ADDITIONAL EVIDENCE DURING APPELLATE PROCEEDINGS. ITA NO.61 57 /DEL/2013 AY: 200 5 - 06 PACE EXPRESS TRAVELS & CARGO P.LTD., N.DEL 2 4. THE APPELLANT CRAVES TO BE ALLOWED TO ADD ANY F RESH GROUNDS OF APPEAL AND/OR DELETE OR AMEND ANY OTHER GROUNDS OF APPEAL. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE ISSUAL OF NOTICE. UNDER THE CIRCUMSTANCES WE DISPOSE OF THE CASE EX PARTE ON MERITS QUA THE ASSESSEE AFTER HEARING THE LD.SR.D .R. 3. HEARD SHRI VIKRAM SAHAY, LD.SR.D.R. ON BEHALF OF THE REVENUE. THE FIRST APPELLATE AUTHORITY IN THIS CASE HAS QUASHED THE ORDER OF THE AO PASSED U/S 154 OF THE INCOME TAX ACT , 1961 (THE ACT) AMENDING HIS ORDER PASSED U/S 143(3) ON 28.12.2007. 4. T HE ASSESSEE IS IN THE BUSINESS OF FORWARDING CARGO ON BEHALF OF VARIOUS AGENTS AND RECEIVES COMMISSION ON QUANTUM OF TOTAL TURNOVER. IN TURN THE ASSESSEE PAYS INCENTIVES AND COMMISSION TO VARIOUS AGENTS. THE ASSESSEE HAD BEEN CONSISTENTLY FOLLOWING A SYSTEM OF ACCOUNTING, WHEREBY AFTER DEDUCTING EXPENSE S FROM GROSS RECEIPTS, THE NET RECEIPTS ARE SHOWN IN THE PROFIT AND LOSS ACCOUNT, WHEREAS THE TDS IS ON THE GROSS RECEIPTS. 5. THE ASSESSMENT OFFICER ( A.O. ) COMPLETED ASSESSMENT U/S 143(3) OF THE ACT ON 28.12.2007. LATER IN AN ORDER PASSED U/S 154, HE HELD THAT THE TURNOVER CREDITED BY THE ASSESSEE TO THE PROFIT AND LOSS A/C WAS RS.3,42,12,514/ - AND WHEREAS THE TDS BENEFIT CLAIMED WAS RS.17,24,171/ - . HE WORKED OUT THE RECEIPTS AS PER THE TDS CERTIFICATES AT RS.4,39,82,826/ - AND ADDED AN AMOUNT OF RS.97 ,70,312/ - TO THE INCOME OF THE ASSESSEE U/S 154 OF THE ACT. ITA NO.61 57 /DEL/2013 AY: 200 5 - 06 PACE EXPRESS TRAVELS & CARGO P.LTD., N.DEL 3 6. THE FIRST APPELLATE AUTHORITY DELETED THIS ADDITION ON THE GROUND THAT IT DOES NOT FALL WITHIN THE KEN OF S.154 OF THE ACT , PARTICULARLY WHEN IN THE SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSES SEE, IT DISCLOSED ONLY NET RECEIPTS IN THE PROFIT AND LOSS A/C . THUS THE COMPUTATION MADE U/S 154 BY THE AO IS ERRONEOUS. IN ANY EVENT , THE ORDER ON HAND CANNOT BE CONSIDERED AS A CORRECTION OF A MISTAKE APPARENT ON RECORD. THE ADDITIONS MADE ARE HIGH LY DEBATABLE ISSUES. THE DIFFERENCE IN QUESTION CANNOT BE TREATED AS INCOME, UNLESS THE FACTS AND FIGURES ARE VERIFIED WITH REFERENCE TO THE BOOKS OF ACCOUNTS ETC. THE FIRST APPELLATE AUTHORITY HAS RIGHTLY RELIED ON THE DECISION OF JUDGEMENT IN THE C ASE OF CIT VS. HERO CYCLES (S C ) 94 TAXMAN 271 AND HELD THAT THE ORDER PASSED BY THE A.O. U/S 154 IS NOT SUSTAINABLE . WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE FIRST APPELLATE AUTHORITY. HENCE WE UPHOLD THE SAME AND DISMISS THIS APPEAL BY THE REVEN UE. 7. IN THE RESULT REVENUE S APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JUNE, 2015. SD/ - SD/ - [A.T. VARKEY] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DT. THE 11 TH JUNE, 2015 MANGA ITA NO.61 57 /DEL/2013 AY: 200 5 - 06 PACE EXPRESS TRAVELS & CARGO P.LTD., N.DEL 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES