OMEGA SHIPPING AGENCIES PVT. LTD., MUMBAI V. I.T.O.10(3)(2), MUMBAI

ITA 6693/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6134 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 23-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Assessee Lawyers: AJAY R SINGH
• Keywords: TDS; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL C BENC H MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO. 6693/MUM/2017 (ASSESSMENT YEAR 2012-13) M/S OMEGA SHIPPING AGENCIES PVT. LTD. 610, KOHINOOR CITY MALL, KIROL ROAD, OFF LBS MARG, KURLA (W), MUMBAI-400070. P AN: AAACO3745R VS. ITO- 10(3)(2) ROOM NO. 621, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. MARG, MUMBAI-20. APPELLANT RESPONDENT APPELLANT BY : SHRI AJAY R. SINGH (AR) RESPONDENT BY : SHRI D.G. PANSARI (DR) DATE OF HEARING : 17.01.2019 DATE OF PRONOUNCEMEN T : 17.01.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-17, MUMBAI (THE LD. CIT(A) DATED 04.09.2017 FOR ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS RAISE D FOLLOWING GROUNDS OF APPEAL: I. THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 32,693/- ON ACCOUNT OF ESIC CONTRIBUTION. II. THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS. 596859/- MERELY BASED ON AIR INFORMATION WITHOUT APPRECIATING THAT DUE TO INCOMPLETE INFORMATION PROVIDED BY DEPARTMENT, THE TRANSACTION RECORDED IN THE BOOKS CANNOT BE RECONCILED WITH THE AIR INFORMATION. ITA NO. 6693/MUM/2017-M/S OMEGA SHIPPING AGENCIES PVT. LTD. 2 III. THE LD. CIT(A) FAILED TO APPRECIATION THAT TRANSITI ON FOR WHICH DETAIL COULD NOT BE TRACED IN THE BOOKS OF ACCOUNT FOR THE REASO NS THAT THE ASSESSEE IS MAINTAINING BOOKS OF ACCOUNTS BASIS BL NUMBERS AND NOT BY CLIENT . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPA NY IS ENGAGED IN THE BUSINESS OF SHIPPING AGENTS AND ALSO EARNING COMMIS SION INCOME ON BUSINESS SOURCE BY WAN HAI LINES (INDIA) PVT. LTD. THE ASSESSEE FILED ITS RETURN OF INCOME FOR RELEVANT ASSESSMENT YEAR DECLA RING INCOME OF RS. 13,90,040.-. THE ASSESSMENT WAS COMPLETED ON 28.03. 2015 UNDER SECTION 143(3) OF THE ACT. THE ASSESSING OFFICER WHILE PASS ING THE ASSESSMENT ORDER MADE DISALLOWANCE UNDER SECTION 36(1)(VA) OF RS. 32,693/- AND ADDITION OF RS. 569,859/- DUE TO NON-RECONCILIATION OF AIR/ITS DETAILS. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSE SSING OFFICER WAS CONFIRMED. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE THIS TR IBUNAL. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE RE VENUE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. GROUND NO.1 RELAT ES TO DISALLOWANCE OF RS. 32,693/- ON ACCOUNT OF LATE PAYMENT OF ESIC CON TRIBUTION. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE DEPOSITED THE CONTRIBUTION OF ESIC BEFORE FILING RETURN OF INCOME. THE LD. AR OF THE ASSESSEE FURTHER DRAWN OUR ATTENTION TO PARA-6.1 OF THE ASSESSMENT O RDER, WHEREIN THE ASSESSING OFFICER HAS TABULATED THE DETAILS OF DUE DATE OF CONTRIBUTION OF ESIC AND THE DATE OF PAYMENT AT DIFFERENT LOCATION OF EMPLOYEE OF THE ITA NO. 6693/MUM/2017-M/S OMEGA SHIPPING AGENCIES PVT. LTD. 3 ASSESSEE. THE LD. AR SUBMITS THAT THE ASSESSEE DEPO SITED THE CONTRIBUTION BEFORE FILING RETURN OF INCOME AND IN VIEW OF THE D ECISION OF JURISDICTIONAL HIGH COURT IN CIT VS. GHATGE PATIL (368 ITR 479) (B OM.). 4. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. 5. WE HAVE CONSIDERED THE SUBMISSION OF THE PARTIES AN D HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. CONSIDERING THE DE CISION OF JURISDICTIONAL HIGH COURT, WHEREIN IT WAS HELD THAT THE ASSESSEE W OULD BE ENTITLED FOR DEDUCTION OF CONTRIBUTION TO THE EMPLOYEE WELFARE F UND, IF THE SAME IS CREDITED ON OR BEFORE DUE DATE OF FILING OF RETURN OF INCOME. THEREFORE, CONSIDERING THE DECISION OF JURISDICTIONAL HIGH COU RT, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE FACTS AND ALLOWED D EDUCTION TO THE ASSESSEE IN ACCORDANCE WITH LAW. IN THE RESULT, THI S GROUND OF APPEAL IS ALLOWED. 6. GROUND NO.2 RELATES TO ADDITION ON ACCOUNT OF NON-R ECONCILIATION OF ITS/AIR INFORMATION. THE LD.AR OF THE ASSESSEE SUBM ITS THAT THE SIMILAR ISSUE WAS AROSE IN EARLIER YEARS I.E. IN ASSESSMENT YEAR 2010-11 AND IN 2011-12. THE TRIBUNAL IN APPEAL FOR A.Y. 20101-11 R ESORTED THE ISSUE TO THE ASSESSING OFFICER WITH THE DIRECTION THAT IF AS SESSEE PROPERTY RECONCILE THE RECEIPT IN FORM NO. 26AS VIS A VIS THE BOOKS OF ACCOUNT, THEN THE ONUS IS ON THE DEPARTMENT TO SHOW THAT THE ENTRIES IN FORM 26AS TRANSITION RECORDED IN THE BOOKS OF ACCOUNT ARE NOT CORRECT. THE ISSUE WAS ITA NO. 6693/MUM/2017-M/S OMEGA SHIPPING AGENCIES PVT. LTD. 4 RESTORED WITH THE DIRECTION THAT ASSESSING OFFICER SHOULD PROVIDE SPECIFIC DETAIL OF THE INFORMATION AS TO WHO HAS DEDUCTED TH E TAX ON PAYMENT MADE TO THE ASSESSEE, WHICH HAS NOT BEEN RECORDED BY THE ASSESSEE. FOLLOWING THE DECISION OF A.Y. 2010-11, THE ISSUE IN APPEAL F OR A.Y. 2011-12 WAS ALSO RESTORED TO THE ASSESSING OFFICER. THE LD. AR SUBMITS THAT TILL DATE THE ASSESSING OFFICER HAS NOT PASSED ANY ORDER OF G IVING EFFECT TO THE DIRECTION OF TRIBUNAL. ON THE OTHER HAND, THE LD. D R SUBMITS THAT THIS ISSUE MAY BE RESTORED TO THE FILE OF ASSESSING OFFI CER WITH THE SIMILAR DIRECTION. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT BOTH THE PARTIES HAVE CONCEDED THAT SIMILAR ISSUE WAS RESTOR ED TO THE FILE OF ASSESSING OFFICER AND MAY BE RESTORED TO THE ASSESS ING OFFICER TO PASS THE ORDER BY FOLLOWING THE DIRECTION IN ORDER DATED 26.11.2014 IN ITA NO. 5164/MUM/2013. WE HAVE FURTHER NOTED THAT FOLLOWING THE ORDER OF A.Y. 2010-11, THE CO-ORDINATE BENCH BY FOLLOWING THE ORD ER OF TRIBUNAL IN A.Y. 2011-12 IN ITA NO. 5652/MUM/2014 PASSED THE FO LLOWING ORDER: 6. AT THE OUTSET, BOTH THE PARTIES AGREED THAT SIMI LAR ISSUE WAS RAISED BY THE REVENUE IN ITA NO.5164/MUM/2013 FOR ASSESSMENT YEAR 2010-11 AND THE TRIBUNAL HAS SET ASIDE THE SAME TO THE FILE OF THE AO WITH THE FOLLOWING DIRECTION:- '11. WE HAVE HEARD THE RIVAL CONTENTION AND ALSO PE RUSED THE RELEVANT FINDING GIVEN BY THE AUTHORITIES BELOW AND THE MATE RIAL PLACED ON RECORD. BEFORE THE AO, THE ASSESSEE HAD SUBMITTED THE ENTIR E DETAILS OF ALL THE TRANSACTIONS, WHICH HAS BEEN RECORDED IN THE BOOKS OF ACCOUNT, ON THE BASIS ITA NO. 6693/MUM/2017-M/S OMEGA SHIPPING AGENCIES PVT. LTD. 5 OF BILL OF LADING NUMBER AS PER THE INDUSTRY PRACTI CE AND NOT IN THE NAME OF THE CLIENT. THE PAYMENTS IS RECEIVED ON THE BASIS O F DEBIT NOTE FROM CLEARING AND FORWARDING AGENT AND ITA NO.5652/MUM/2014 THERE FORE, THE TRANSACTIONS ARE OFTEN RECORDED IN THEIR NAME AND N OT IN THE NAME OF SHIPPER OR CONSIGNEE. THE ASSESSEE HAS CATEGORICALLY STATED THAT, IN ABSENCE OF ANY SPECIFIC DETAILS IT IS DIFFICULT TO GIVE THE CORREC T RECONCILIATION. THE INFORMATION WHICH HAS BEEN RECEIVED AND FORWARDED B Y THE AO DOES NOT CONTAIN ANY DETAIL AND THERE IS NO EVIDENCE THAT SU CH TRANSACTIONS HAS BEEN CARRIED OUT BY THE ASSESSEE. BEFORE US, THE ASSESSE E HAD SUBMITTED ENTIRE DETAILS OF TDS WHICH ARE VOLUMINOUS IN NATURE. THES E DETAILS WERE ALSO FILED BEFORE THE AO. THE ASSESSING OFFICER, WITHOUT GIVIN G ANY SPECIFIC DETAILS QUA THE INFORMATION, CANNOT EXPECT THE ASSESSEE TO EXPL AIN SUCH TRANSACTION. IN CASE OF INFORMATION RECEIVED THROUGH AIR OR FROM OT HER SOURCES THE INITIAL ONUS IS ON THE ASSESSING OFFICER, THAT SUCH AN INFO RMATION WHICH HAS BEEN RECEIVED PERTAINS TO THE ASSESSEE AND HAS NOT BEEN RECORDED BY THE ASSESSEE, IN ITS BOOKS OF ACCOUNT. WE CAN UNDERSTAND IF THERE IS SOME DISCREPANCY INFORM 26AS, WHERE THE ASSESSEE CAN BE EXPECTED TO EXPLAIN THE ENTRIES. HOWEVER, IF THE ASSESSEE HAS PROPERLY RECONCILED TH E RECEIPTS FORM NO.26AS VIS--VIS THE BOOKS OF ACCOUNT, THEN THE ONUS IS ON THE DEPARTMENT TO SHOW THAT THE ENTRIES IN 26AS AND TRANSACTIONS RECORDED IN THE BOOKS OF ACCOUNT ARE NOT CORRECT. THUS, IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION THAT, AO SHOULD P ROVIDE SPECIFIC DETAILS OF THE INFORMATION, AS TO WHO HAS DEDUCTED THE TAX ON THE PAYMENT MADE TO THE ASSESSEE, WHICH HAS NOT BEEN RECORDED BY THE ASSESS EE. IF NO SPECIFIC DETAILS ARE PROVIDED, THEN NO ADDITION SHOULD BE MADE. THUS GROUND NO.4 & 5 ARE TREATED AS PARTLY ALLOWED FOR THE STATISTICAL PURPO SE'. 7. BOTH THE PARTIES CONCEDED THAT IN THE SIMILAR FA SHION THE ISSUE CAN BE REMITTED BACK TO THE FILE OF THE AO. IN VIEW OF THE ABOVE CONCESSION, GIVEN BY BOTH THE PARTIES, WE SET ASIDE THE ORDERS OF THE AU THORITIES BELOW AND REMIT THE ISSUE BACK TO THE FILE OF THE AO WITH THE DIRECTION THAT THE AO IS TO DECIDE THE ISSUE IN TERMS OF EARLIER DIRECTIONS OF THE TRIBUNA L IN THIS REGARD. 8. CONSIDERING THE DECISION OF TRIBUNAL FOR A.Y. 2010- 11 AND 2011-12, ON IDENTICAL ISSUE, THIS GROUND OF APPEAL IS RESTORED TO THE FILE OF ASSESSING OFFICER TO DECIDE THE ISSUE AS PER DIRECTION IN ORD ER DATED 26.11.2014 IN ITA NO. 5164/MUM/2013. AS THE LD. AR OF THE ASSESSE E CONTENDED THAT THE ASSESSING OFFICER HAS NOT PASSED THE ORDER FOR GIVING EFFECT TO THE ORDER OF TRIBUNAL EVEN FOR A.Y. 2010-11, THEREFORE, WE DIRECT THE ASSESSING OFFICER TO PASS THE APPROPRIATE ORDER FOR THE YEAR UNDER ITA NO. 6693/MUM/2017-M/S OMEGA SHIPPING AGENCIES PVT. LTD. 6 CONSIDERATION WITHIN REASONABLE TIME. IN THE RESULT , THIS GROUND OF APPEAL IS ALSO ALLOWED FOR STATISTICAL PURPOSE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/ 01/2019. SD/ SD/- RAMIT KOCHAR PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 17.01.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI