I2i TELESOURCE PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER WARD 10(1) - 2, MUMBAI

ITA 6823/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3310 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 04-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTIKIYEN
• Assessee Lawyers: N H GAJRIA
• Keywords: Opportunity of being heard; Additional evidence; Onus to prove; TDS
• Section: 69; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI SANDEEP GOSAIN (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 6823/MUM/2017 ASSESSMENT YEAR: 2012 - 13 I2I TELESOURCE PVT. LTD. C/O N H GAJRIA & COMPANY, CHARTERED ACCOUNTANTS, 20 - A KHATAU BUILDING, 8/10 ALKESH DINESH MODI MARG, FORT, MUMBAI - 400001. VS. INCOME TAX OFFICER WARD - 10(1) - 2, AAYAKAR BHAVAN, MUMBAI - 400020. PAN NO. AABCI4494C APPELLANT RESPONDENT ASSESSEE BY : MR. N.H. GAJRIA , AR REVENUE BY : MR. ABI RAMA KARTIKIYEN , DR DATE OF HEARING : 13 / 02/2019 DATE OF PRONOUNCEMENT: 18/02/2019 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEAR IS 2012 - 1 3 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX - 1 7 , MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITIONS OF RS.1,44,75,355/ - AS UNDISCLOSED INCOME I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 2 BASED UPON MIS - MATCH OF AIR INFORMATION AND BOOKS OF ACCOUNTS OF THE COMPANY ON ACCOUNT OF TDS DEDUCTED BY THESE CUSTOMERS OF T HE APPELLANT COMPANY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITIONS OF RS.30,00,000/ - U/S 69 OF THE ACT AS UNDISCLOSED INVESTMENTS BASED UPON AIR INFORMATION AS REPORTED BY BANKS ON ACCOUNT OF FDR HELD WITH TH EM. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITIONS OF RS.1,74,75,355/ - WITHOUT ASSESSING OFFICER VERIFYING WHETHER THE EXPLANATION OFFERED BY THE APPELLANT IS CORRECT OR INCORRECT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT HEARING THE APPELLANT DURING THE COURSE OF HEARING AND WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE APPELLANT DURING SUCH HEARING/WITHOUT GIVING APPELLANT OPPORTUNITY TO MAKE AN APPLICATION FOR SUBMISSION OF ADDITIONAL EVIDENCE WHICH COULD NOT BE SUBMITTED AS ASSESSMENT PROCEEDINGS WERE GETTING TIME BARRED. 3. BRIEFLY STATED, THE FACTS ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR (AY) 2012 - 13 ON 27.07.2013 DECLARING TOTAL INCOME OF RS.23,464/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) OBSERVED THAT IN TH E P&L ACCOUNT THE ASSESSEE HAS SHOWN REVENUE OF RS.5,24,78,250/ - FROM OPERATIONS AND OTHER INCOME OF RS.2,20,282/ - TOTALLING TO RS.5,26,98,532/ - . HOWEVER, THE AO NOTICED FROM THE AIR INFORMATION THAT THE ASSESSEE HAD RECEIVED TOTAL AMOUNT OF RS.7,18,68,796 / - . IN RESPONSE TO A QUERY RAISED BY THE AO, THE ASSESSEE FILED A RECONCILIATION STATEMENT WHICH HAS BEEN EXTRACTED AT PARA 4.1 OF THE ASSESSMENT ORDER DATED 26.03.2015. HOWEVER, THE AO WAS NOT CONVINCED WITH THE SAID I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 3 RECONCILIATION STATEMENT OF THE ASSESS EE FOR THE REASON THAT NO SUPPORTING DOCUMENT OR EVIDENCE WAS FILED. THE AO, AFTER CONSIDERING THE REPLY OF THE ASSESSEE THAT THE GROSS AMOUNT IN 26AS IS INCLUSIVE OF SERVICE TAX WHICH IS CHARGEABLE @ 12.36%, REDUCED THE CLAIM OF SERVICE TAX ELEMENT OF RS. 79,06,616/ - FROM THE GROSS RECEIPT. THUS, THE AO MADE AN ADDITION OF THE BALANCE AMOUNT OF RS.1,44,75,355/ - (RS.2,23,81,971/ - MINUS RS.79,06,616/ - ). 3.1 ALSO THE AO FOUND THAT THE ASSESSEE FAILED TO FILE ANY SUPPORTING DOCUMENT OR EVIDENCE IN RESPECT OF MI SMATCH OF RS.30,00,000/ - WITH REGARD TO AIR RECONCILIATION FOR FDR WITH BANK. IN RESPONSE TO A QUERY RAISED BY THE AO, THE ASSESSEE SUBMITTED THAT AS THE TIME GAP IS TOO SHORT TO GET THE DETAILS FROM BANK, WE ARE UNABLE TO SUBMIT THE RECONCILIATION OF BAN K FDR. AS THE ASSESSEE FAILED TO FILE ANY SUPPORTING DOCUMENT/EVIDENCE , THE AO MADE AN ADDITION OF RS.30,00,000/ - U/S 69 OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FILED ADDITIONAL EVIDENCE TO PROVE THAT INCOME OFFERED FOR FEW OF THE PARTIES VIZ. AIRCEL GROUP, UNITED WIRELESS & SISTEMA SHYAM TELESERVICES LTD. FOR THE CUMULATIVE PERIOD FROM AY 2010 - 11 TO 2012 - 13 IS MORE THAN THE INCOME APPEA RING IN FORM 26AS FOR THE CORRESPONDING CUMULATIVE PERIOD. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION UNDER RULE 46A AS TO WHY THESE DOCUMENTS SHOULD BE ACCEPTED AT THAT STAGE. HE HELD THAT EVEN OTHERWISE, THE ASSESSEE WHO IS I NTO THE BUSINESS WITH THESE PARTIES HA S ALSO FAILED TO FILE THEIR I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 4 CONFIRMATION OF ACCOUNTS TO PROVE HIS CASE. AS THE ASSESSEE FAILED TO DISCHARGE ITS PRIMARY ONUS BY FILING CORRECTION STATEMENT OR DETAILED CONFIRMATION FROM THE CONCERNED PARTIES, THE LD. C IT(A) CONFIRMED THE ADDITION OF RS.1,44,75,355/ - MADE BY THE AO. REGARDING THE ADDITION OF RS.30,00,000/ - MADE BY THE AO U/S 69 OF THE ACT, THE ASSESSEE FILED BEFORE THE LD. CIT(A) LEDGER COPIES OF FDR AND BANK STATEMENTS. THESE ADDITIONAL EVIDENCE S FILE D BY THE ASSESSEE WERE REJECTED BY THE LD. CIT(A) FOR THE REASON THAT NO APPLICATION WAS MADE FOR ADMITTING IT. OBSERVING THAT THE ASSESSEE HAS FAILED TO DISCHARGE ITS PRIMARY ONUS TO EXPLAIN ITS CASE WITH COMPLETE RECORD OF FDRS CREATED AND MATURE D OVER T HE PERIOD, THE LD. CIT(A) CONFIRMED THE ADDITION OF RS.30,00,000/ - MADE BY THE AO U/S 69 OF THE ACT. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A PAPER BOOK (P/B) CONTAINING (I) COMPARATIVE STATEMENT OF GROSS RECEIPTS AS PER 26AS AND LEDGER ACCOU NTS, (II) COPY OF 26AS FOR THE FINANCIAL YEAR 2009 - 10 RELEVANT TO THE ASSESSMENT YEAR 2010 - 11, (III) COPY OF 26AS FOR THE FINANCIAL YEAR 2010 - 11 RELEVANT TO THE ASSESSMENT YEAR 2011 - 12, (IV) COPY OF 26AS FOR THE FINANCIAL YEAR 2011 - 12 RELEVANT TO THE ASSES SMENT YEAR 2012 - 13, (V) COPY OF THE LEDGER ACCOUNT OF DISHNET WIRELESS AIRCEL FOR THE FINANCIAL YEAR ENDED 31.03.2010, 31.03.2011, 31.03.2012, (VI) COPY OF LEDGER ACCOUNT OF UNITECH WIRELESS FOR THE FINANCIAL YEAR ENDED 31.03.2010, 31.03.2011, 31.03.2012 , (VII) COPY OF LEDGER ACCOUNT OF SISTEMA SHYAM TELESERVICES LTD. FOR THE FINANCIAL YEAR ENDED 31.03.2010, 31.03.2011, 31.03.2012, (VIII) COPY OF LEDGER ACCOUNT OF HUAWEI TELECOMMUNICATION FOR THE FINANCIAL YEAR ENDED 31.03.2012, (IX) I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 5 COPY OF LEDGER ACCOUN T OF VODAFONE ESSAR MOBILE SEERVICES LTD. FOR FINANCIAL YEAR ENDED 31.03.2012 AND (X) COPY OF THE BALANCE SHEET FOR THE YEAR ENDED 31.03.2012. ALSO THE LD. COUNSEL FILES A COPY OF THE CBDT INSTRUCTION 5/2013 DATED 08.07.2013, THE DECISION IN RAKESH KUMAR GUPTA V. UOI (2014) 46 TAXMANN.COM 447 (ALL) AND P.K. RAJASEKAR V. ITO (2016) 74 TAXMANN.COM 151 (CHENNAI - TRIB). 6. ON THE OTHER HAND, THE LD. DR SUBMITS THAT AS THE ASSESSEE FAILED TO FILE THE DOCUMENTS/EVIDENCE IN SUPPORT OF ITS CASE, THE LD. CIT(A) HA S RIGHTLY CONFIRMED THE DISALLOWANCE OF RS.1,44,75,355/ - MADE BY THE AO ON ACCOUNT OF MISMATCH OF AIR INFORMATION AND BOOKS OF ACCOUNTS. IT IS STATED BY HIM THAT AS THE TDS HAS BEEN CLAIMED BY THE ASSESSEE, AS A NATURAL COROLLARY, THE ASSESSEE IS BOUND TO SHOW THE CORRESPONDING INCOME. THEREFORE, THE LD. DR SUBMITS THAT THE ORDER PASSED BY THE LD. CIT(A) BE CONFIRMED. IN RESPECT OF THE ADDITION OF RS.30,00,000/ - MADE BY THE AO U/S 69 OF THE ACT, THE LD. DR AGREES WITH THE CONTENTIONS OF THE ASSESSEE THAT THE SAME MAY BE SENT TO THE AO FOR VERIFICATION. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE ISSUE HERE IS MISMATCH IN GROSS AMOUNT AS REFLECTED IN 26AS STATEMENT AND THE P&L ACCOUNT OF THE ASSESSEE. IN THE CAS E OF P.K. RAJASEKAR (SUPRA), THE ASSESSEE RECEIVED A SUM OF RS.64,85,397/ - FROM COMPANY TTPL. WHILE FILING THE TDS RETURN, TTPL CLAIMED THAT A SUM OF RS.1.26 LAKHS WAS PAID TO THE ASSESSEE. HOWEVER, I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 6 THE ASSESSEE CLAIMED THAT OUT OF THE ABOVE AMOUNT, A SUM OF RS.58.3 LAKH WAS BEING CREDITED TO THE ASSESSEE WRONGLY AND ACTUALLY THE ASSESSEE RECEIVED RS.64.84 LAKH FROM TTPL. THE ASSESSEE CLAIMED THAT CREDIT OF RS.58.36 LAKH WAS A WRONG ENTRY AND TTPL HAD NOT FILED REVISED TDS RETURN ELECTRONICALLY. THE AO ADDR ESSED LETTER TO TTPL. AS THE SAID LETTER WAS NOT RESPONDED, THE AO TREATED THE PARTICULARS CONTAINED IN FORM 26AS AS CORRECT AND TREATED RS.56.36 LAKHS SHOWN IN FORM 26AS AS UNDISCLOSED RECEIVED OF THE ASSESSEE. ON APPEAL, THE CIT(A) CONFIRMED THE ORDER OF THE AO. ON FURTHER APPEAL, THE TRIBUNAL HELD THAT: 6. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT EVEN THOUGH THE BURDEN OF PROOF IS INITIALLY ON THE SHOULDER OF THE ASSESSEE, THE ASSESSING OFFICER IS ALSO EQUALLY RESPONSIBLE TO FIND OUT WHETHER THE CREDIT ENTRY FOUND ON 01.07.2010 IS GENUINE OR NOT. THE ASSESSING OFFICER CANNOT TAKE ADVANTAGE OF THE IGNORANCE OR HANDICAP OF THE ASSESSEE AND SAY THAT THERE WAS UNDISCLOSED RECEIPT BY THE ASSESSEE. WHEN THE ASSESSEE CLAIMS THAT THE ENTRY AS ON 01.07.20 10 IS A WRONG ENTRY, THE ASSESSING OFFICER IN ALL FAIRNESS HAS TO EXAMINE THE SAME AND FIND OUT WHETHER THERE WAS GENUINE ENTRY OR NOT. THE ASSESSING OFFICER WAS CONFERRED THE POWER OF CIVIL COURT TO EXAMINE AND FIND OUT THE REAL NATURE OF TRANSACTION. IF THE ASSESSING OFFICER COULD NOT EXERCISE THE POWER CONFERRED ON HIM, IT IS NOT KNOWN HOW THE INDIVIDUAL CITIZEN OF THIS COUNTRY WILL BE ABLE TO FIND OUT THE GENUINENESS OF THE TRANSACTION. THEREFORE, IN ORDER TO MEET THE ENDS OF JUSTICE, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO FIND OUT THE ADDRESS OF M/S TULIP TELECOM P. LTD. AND ITS DIRECTORS AND THEREAFTER FIND OUT WHETHER SO - CALLED CREDIT OF RS. 58,36,556/ - SAID TO BE GIVEN ON 01.07.2010 IS A GENUINE TRANSACTION OR I T IS A WRONG ENTRY. THEREAFTER, THE ASSESSING OFFICER HAS TO DECIDE THE SAME IN ACCORDANCE WITH LAW. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. I2I TELESOURCE PVT. LTD. ITA NO. 6823/MUM/2017 7 THE ASSESSING OF FICER SHALL RE - EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7.1 THUS AS HELD IN THE ABOVE CASE, WHERE ASSESSEE CLAIMED THAT THERE WAS WRONG CREDIT ENTRY BY PAYER - CLIENT IN FORM 26AS, THE AO HAS TO EXAMINE ITS GENUINENESS. ALSO IT HAS BEEN LAID DOWN BY THE CBDT IN ITS INSTRUCTION NO. 5/2013 DATED 08.07.2013 THAT THE AO MAY ALSO, IF DEEMED NECESSARY, ISSUE A NOTICE TO THE DEDUCTOR TO COMPEL HIM TO FILE CORRECTION STATEMENT AS PER THE PROCEDURE LAID DOWN. THEREFORE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE AN ORDER AFR ESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COUR T ON 18/02/2019. SD/ - SD/ - ( SANDEEP GOSAIN ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 18/02/2019 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// (SR. PRIVATE SECRETARY) ITAT, MUMBAI