DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-4, JAIPUR V. M/S SAND DUNE CONSTRUCTION PVT. LTD., JAIPUR

ITA 626/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2071 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Appeal Filed On: 28-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROLI AGARWAL
• Keywords: Depreciation; Revised return; TDS
• Section: 139(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 626/JP/17 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2015-16 THE DCIT, CENTRAL CIRCLE-4, JAIPUR. CUKE VS. M/S SAND DUNE CONSTRUCTION PVT.LTD., D-29, ASHIANA APRTMENT, SHANTI PATH, TILAK NAGAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO.: AAFCS2569A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SMT. ROLI AGARWAL (CIT) FU/KZKFJRHDH VKSJ LS@ ASSESSEE BY : SHRI S.L.PODAR (ADV.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/09/2017 ?KKS'K .KK DH R KJH[K @ DATE OF PRONOUNCEMENT: 05/09/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)- 4, JAIPUR DATED 26.05.2017 FOR A.Y. 2015-16 WHEREIN THE REVENUE HAS TAKEN FOLLOWING GROUNDS OF APPEAL ARE AS UNDER:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OUT OF TRAVELLIN G AND CONVENYANCE EXPENSES RS. 1,70,469/-, ADDITION OUT OF COMMISSION ON SALE EXPENSES RS. 6,41,531/-, ADDITION OUT OF VARIOUS EXPENSES RS . 19,77,346/- AND ADDITION ON LATE PAYMENT OF PF OF RS. 11,63,613/- T OTALLING RS. 39,52,959/-. 2. THE RELEVANT FACTS AND FINDINGS OF THE LD. CIT( A) ARE AS UNDER:- 3.3.2 I HAVE DULY CONSIDERED ASSESSEES SUBMISSIO N AND CAREFULLY GONE THROUGH ASSESSMENT ORDER PASSED BY THE AO. I HAVE A LSO TAKEN A NOTE OF ITA NO. 626/JP/17 DCIT VS. M/S SAND DUNE CONSTRUCTION PVT. LTD. 2 FACTUAL MATRIX OF THE CASE WELL AS APPLICABLE CASE LAWS RELIED UPON. AO WHILE FINALIZING THE ASSESSMENT APPLYING @ 10% ON TOTAL C LAIMED OF EXPENSES OF RS. 17,04,698/= ON A/C OF TRAVELLING & CONVEYANCE EXPEN SES, INSURANCE AND DEPRECIATION OF CARS. IT IS A FACT THAT DURING THE SEARCH OPERATION NO INCRIMINATING DOCUMENTS SUGGESTING INFLATION OF EXP ENSES UNDER THESE HEADS HAVE BEEN FOUND FROM ASSESSEES POSSESSION. IT IS A LSO SUBMITTED THAT THE TOTAL TURNOVER OF ASSESSEE COMPANY DURING THE YEAR WAS RS. 53,56,41,703/= AND PERCENTAGE OF EXPENSES INCURRED ARE VERY NOMINA L, DETAILS OF WHICH ARE AS UNDER: TRAVELLING & CONVEYANCE EXPENSES (RS. 4, 15,601/=) 0.07% INSURANCE EXPENSES (RS. 6,81,734/=) 0.12% DEPRECIATION ON CARS (RS. 6,07, 363/=) 0.11% GENERAL EXPENSES (RS. 7,13,197/=) 0.13% ADVERTISEMENT & BUSINESS PROMOTION EXPENSES (RS. 1, 86,32,367/=) 3.47% TELEPHONE EXPENSES (RS. 4,27,896/=) 0.07% IT IS ALSO SUBMITTED THAT AO HAS ALSO MADE ROUTINE DISALLOWANCE BY APPLYING RATE 10% ON COMMISSION PAYMENT OF RS. 64,15,310/= B Y THE ASSESSEE, KNOWING FULLY WERE THAT COMMISSION PAYMENTS ARE SUB JECT TO TDS AND NO DISCREPANCY IN THIS REGARD HAS BEEN NOTICED. IT IS ALSO A FACT THAT NO INCRIMINATING DOCUMENT OF ASSESSEE WAS FOUND DURING THE SEARCH OPERATION CONDUCTED AGAINST THE ASSESSEE. IT IS ALSO A FACT T HAT AOS ACTION IS NOT BASED ON THE POSITIVE RESULT ARISING OUT OF THE ENQUIRY C ONDUCTED DURING THE ASSESSMENT PROCEEDING. IN VIEW OF FACTS & CIRCUMSTANCES OF THE CASE AS DIS CUSSED ABOVE, NO AD-HOC ADDITION IN ABSENCE OF INCRIMINATING DOCUMENTS AND WITHOUT CARRYING OUT ENQUIRY BY THE AO CAN BE SUSTAINED. THEREFORE, ADDI TIONS MADE OF RS. 1,70,469/= (GR NO. 1), RS. 6,41,531/= (GR NO. 2) & RS. 19,77,346/= (GR NO. 3) ARE HEREBY DELETED. ASSESSEES APPEAL IN GR NO. 1,2,&3 STANDS ALLOWED. 3.5.2 I HAVE DULY CONSIDERED ASSESSEES SUBMISSION AND CAREFULLY GONE THROUGH ASSESSMENT ORDER PASSED BY THE AO. I HAVE A LSO TAKEN A NOTE OF FACTUAL MATRIX OF THE CASE AS AVAILABLE ON THE CASE RECORD AS WELL AS REGAL POSITION OF THE CASE AS PER THE CASE LAWS RELIED UP ON BY THE ASSESSEE. IN THIS CASE, AO HAS COMPLETED THE ASSESSMENT U/S 1 43(3) R.W.S. 153B(1)(B) OF THE ACT WHEREIN ADDITION ON A/C OF DISALLOWANCE OF RS. 11,63,613/= FOR PF CONTRIBUTION DEPOSITED AFTER THE STIPULATED DUE DAT E BUT BEFORE THE DUE DATE ITA NO. 626/JP/17 DCIT VS. M/S SAND DUNE CONSTRUCTION PVT. LTD. 3 OF FILING OF ROI U/S 139(1) OF THE ACT. IN VIEW OF THE FOLLOWING JUDGMENTS, ADDITIONS IN SUCH CASES CANNOT BE SUSTAINED: A) ALOM EXTRUSIONS 319 ITR 306(SC) B) SABARI ENTERPRISES (2008) 298 ITR 141(KAR) C) P.M. ELECTRICAL LTD (2008) 220 CTR 635 (HIGH COU RT OF DELHI) D) VINAY CEMENTS 213 CTR 268 (SC) IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTIFULLY FOLLOWING THE AFOREMENTIONED DECISIONS, ADDITIONS OF DISALLOWANCE OF RS. 11,63,613/= FOR PF CONSTRUCTION DEPOSITED AFTER THE STIPULATED DUE DAT E BUT BEFORE THE DUE DATE OF FILING OF ROI U/S 139(1) OF THE ACT, IS HEREBY D ELETED. ASSESSEE APPEAL IN GR. NO. 5 STANDS ALLOWED. 3. THE LD. DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE ASSESSING OFFICER. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE DO NOT SEE ANY INFIRMITY IN THE ORDER OF LD. CIT(A) HENCE, THE SAME IS CONFIRMED AND THE GROUND TAKEN BY THE REVENUE IS DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/09/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 05/09/2017 *SANTOSH VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE RESPONDENT - THE DCIT, CENTRAL CIRCLE-4, JAIPUR. 2. IZR;FKHZ@ THE APPELLANT- M/S SAND DUNE CONSTRUCTION PVT.LTD., D-29, ASHIANA APRTMENT, SHANTI PATH, TILAK NAGAR, J AIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) ITA NO. 626/JP/17 DCIT VS. M/S SAND DUNE CONSTRUCTION PVT. LTD. 4 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, 6. XKMZ QKBZY@ GUARD FILE (ITA NO.626/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.