JANTA CONSTRUCTION CO., Jaipur V. ACIT, Jaipur

ITA 694/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5233 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 08-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATEJA CIT DHK
• Assessee Lawyers: MUKESH KHANDELWALC A

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 HKKXPUN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF ;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 694/JP/15 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008.09 JANTA CONSTRUCTION CO., E-47 ROAD NO.2B,VKI AREA, JAIPUR CUKE VS. THE ACIT, CIRCLE-4, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AABFJ 0003 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUKESH KHANDELWAL(C.A.) JKTLO DH VKSJ LS@ REVENUE BY :S HRI O.P. BATEJA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13.06.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 15/06/2016. VKNS'K@ ORDER PER SHRI LALIET KUMAR, JM. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR ORDER DATED 27.07.2015 WHEREIN THE ASSESSE H AS TAKEN FOLLOWING GROUNDS: (I) THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN LAW AN D ON FACTS IN CONFIRMING THE ORDER OF THE LD. AO WHO HAD PASSED THE ORDER IN CONTRAVENTION TO THE DIRECTION OF THE HONBLE ITAT IN ITA NO.1084/JP/2011. (II) THAT THE LD. CIT(A) HAS ERRED SERIOUSLY IN LA W IN SUSTAINING THE ACTION OF THE LD. AO IN DISALLOWING A SUM OF RS. 4, 87,000/- U/S 40A(IA) OF THE INCOME TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELL ANT FIRM HAS BEEN ENGAGED IN CIVIL CONSTRUCTION WORK. DUE TO THE CERTAIN DEF ECTS THE BOOKS OF THE ITA NO. 694/JP/15 JANTA CONSTRUCTION CO., JAIPUR VS. ACIT, CIRCLE-4, JAIPUR 2 APPELLANT WERE REJECTED U/S 145(3) OF THE IT ACT, 1961 AND THE LD. AO MADE DISALLOWANCES OUT OF CERTAIN EXPENSES. THE AO ALSO MADE DISALLOWANCE OF RS. 4,87,000/- BY RESORTING THE PROVISIONS OF SECTION 40A(IA) OF THE INCOME TAX ACT, 1961. THIS HONBLE BENCH IN THE FIRST ROUND OF APP EAL DELETED THE DISALLOWANCE MADE BY THE LD. AO OUT OF EXPENSES (VIDE ITA NO.108 4/JP/2011 ORDER DATED 02.02.2012. HOWEVER ON THE ISSUE OF DISALLOWANCE U/ S 40A(IA) THIS HONBLE BENCH SET ASIDE THE ISSUE TO THE FILE OF THE LD. AO TO VERIFY THE CONTENTION OF THE APPELLANT THAT THIS AMOUNT DID NOT PERTAIN TO TRANS PORTATION CHARGES BUT IT WAS ON ACCOUNT OF PURCHASE OF DIESEL/ BITUMEN . IN THE SET ASIDE PROCEEDINGS THE APPELLANT COULD NOT PROVE THIS CONTENTION AND HENCE THE LD. AO AGAIN MADE DISALLOWANCE U/S 40A(IA). 2.1 THE LD. CIT(A)S FINDINGS: I HAVE PERUSED THE FACTS OF THE CASE, ASSESSMENT O RDER AND THE SUBMISSIONS OF THE APPELLANT. THIS MATTER HAD CAME UP BEFORE THE HONBLE TRIBUNAL AND HAD BEEN SET ASIDE WITH THE FOLLOWING DIRECTION: AFTER CONSIDERING THE SUBMISSION OF BOTH THE SIDES , WE FIND THAT THIS MATTER SHOULD GO BACK TO THE FILE OF AO AS WE FIND WEIGHT IN THE CONTENTION OF THE ASSESSEE THAT SUCH HUGE AMOUNT OF RS. 4,87,000/- CANNOT BE AN AMOUNT OF TRANSPORTATION. HOWEVER, TH E ONUS IS ON THE ASSESSEE TO PROVE THAT THE AMOUNT OF RS. 4,87,000/- WAS PAID ON ACCOUNT OF PURCHASE OF BITUMEN. THEREFORE, WE FEEL THAT O NE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE FOR LEADING THE E VIDENCE AND ACCORDINGLY WE SET ASIDE THIS ISSUE OF THE FILE OF AO TO PASS A FRESH ORDER AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE FOR FIL ING EVIDENCE AND OTHER DETAILS IN THIS RESPECT. WE ORDER ACCORDINGLY. THE ASSESSING OFFICER IN THE SET ASIDE PROCEEDINGS PROVIDED AN OPPORTUNITY FOR PROVIDING THE EVIDENCE TO PROVE THAT THIS AMOUNT OF RS. 4,87,000/- WAS PAID ON ACCOUNT OF PURCHASE OF BITUMEN. NO DOCUMENTARY EVI DENCE WHATSOEVER HAS BEEN PRODUCED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. IN THE ABSENCE OF THE SAME, THE ASSESSING OFFICER HAS RIGHTLY CONCLUD ED THAT THE AMOUNT OF RS. 4,87,000/- RELATED TO TRANSPORTATION CHARGES WHICH WERE RELIABLE FOR TDS AND ITA NO. 694/JP/15 JANTA CONSTRUCTION CO., JAIPUR VS. ACIT, CIRCLE-4, JAIPUR 3 WHICH HAS NOT BEEN DONE. THE ASSESSING OFFICER HAS, THUS RIGHTLY DISALLOWED THE AMOUNT U/S 40A(IA) OF THE I.T. ACT 1961 AND THE SAM E IS UPHELD. THIS GROUND IS DISMISSED. 2.2 GROUND NO.1 NOT PRESSED BY THE ASSESSEE. 2.3 IN GROUND NO.2 THE LD. AR HAS SUBMITTED THAT T HE LD. AO AS WELL AS LD. CIT(A) MADE DISALLOWANCE OF RS. 4,87,000/- ON ACCOU NT OF ALLEGED PAYMENT FOR TRANSPORTATION CHARGES AND FAILURE OF THE APPELLANT IN DEDUCTING TDS THEREON. IN THIS CONNECTION THIS IS SUBMITTED THAT IN THIS C ASE THE LD. AO INVOKED PROVISIONS OF SECTION 145(3) OF THE INCOME TAX ACT, 1961 AND HENCE THERE IS NO SCOPE OF MAKING FURTHER DISALLOWANCE U/S 40A(IA) OF THE IT ACT, 1961. THIS SUBMISSION OF THE APPELLANT FINDS SUPPORT FROM THE FOLLOWING CASE LAWS: 1. TEJA CONSTRUCTION VS. ACIT (39 SOT 13)- ITAT, H YDERABAD BENCH A WHEREIN IT WAS HELD INCOME FROM BUSINESS IS DETERMI NED AS PER SECTION 29 OF THE INCOME TAX ACT, 1961 WHICH TAKES CARE OF DEDUCT ION PROVIDED IN SECTION 30 TO 43D AND HENCE THERE WAS NO REQUIREMENT OF MAKING FURTHER DISALLOWANCE U/S 40A(IA). 2. INDWELL CONSTRUCTION VS. CIT (232 ITR 775) (AP) 3. CIT VS. BANWARILAL BANSIDHAR (229 ITR 229 ALLAH ABAD) 4. ITO VS. KENARAM SAHA & SUBHASH SAHA (301 ITR 171 )(ITAT KOLKATA SB) 5. AKASH DEVLOPERS VS. IT DEPTT.(ITA NO. 859/KOL/20 12)ITAT KOLKATA ORDER DATED 20.11.2015 2.4 THIS IS A SECOND ROUND OF LITIGATION. IN THE F IRST ROUND THE TRIBUNAL HAS DIRECTED THE AO TO EXAMINE THE ISSUE AFRESH. WE WO ULD LIKE TO REPRODUCE THE PARAGRAPH OF 2.3 OF THE CIT(A) WHICH ALSO CONTAINS THE DIRECTION OF THE HONBLE TRIBUNAL. ITA NO. 694/JP/15 JANTA CONSTRUCTION CO., JAIPUR VS. ACIT, CIRCLE-4, JAIPUR 4 AFTER CONSIDERING THE SUBMISSION OF BOTH THE SIDES , WE FIND THAT THIS MATTER SHOULD GO BACK TO THE FILE OF AO AS WE FIND WEIGHT IN THE CONTENTION OF THE ASSESSEE THAT SUCH HUGE AMOUNT OF RS. 4,87,000/- CANNOT BE AN AMOUNT OF TRANSPORTATION. HOWEVER, TH E ONUS IS ON THE ASSESSEE TO PROVE THAT THE AMOUNT OF RS. 4,87,000/- WAS PAID ON ACCOUNT OF PURCHASE OF BITUMEN. THEREFORE, WE FEEL THAT O NE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE FOR LEADING THE E VIDENCE AND ACCORDINGLY WE SET ASIDE THIS ISSUE OF THE FILE OF AO TO PASS A FRESH ORDER AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE FOR FIL ING EVIDENCE AND OTHER DETAILS IN THIS RESPECT. WE ORDER ACCORDINGLY. AT THIS STAGE THE LD. AR WAS ASKED BY THE AO WHETHE R HE SHOULD PRODUCE THE EVIDENCE SHOWING THE EXPENSES TOWARDS B ITUMEN FOR THE AMOUNT OF RS. 4,87,000/-. THE LD. AR CLEARLY SUBMITTED T HAT THE ASSESSEE HAS NOT ABLE TO PRODUCE THE EVIDENCE AS REQUIRED BY THE TRIBUNAL FROM THE ASSESSMENT PROCEEDINGS. HOWEVER, HE HAS INSISTED THAT SINCE THE G.P. RATE HAS BEEN DECIDED BY THE TRIBUNAL, THEREFORE FRESH ADDITION O R DISALLOWANCE CANNOT BE MADE. 2.5 THE LD. DR ON THE OTHER HAND SUBMITTED THE SCOP E OF THE SECOND APPEAL IS DETERMINED BY THE EARLIER TRIBUNAL ORDER AND TRIBUNAL IS BOUND BY THE EARLIER ORDER THEREFORE THE SCOPE AND AMBIT OF THE PRESENT APPEAL IS GUIDED. 2.6 WE HAVE HEARD THE BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN OUR VIEW THE LD. DR WAS RIGHT IN HIS CONTENTIONS THAT THE SCOPE OF THE PRESENT APPEAL IS GOVERNED BY THE EARLIER TRIBU NAL ORDER. SINCE THE ASSESSEE HAS FAILED TO PRODUCE THE DOCUMENTARY EVID ENCE SUPPORTING ITS CASE FOR THE PURCHASE OF BITUMEN BEFORE THE ASSESSING OF FICER OR BEFORE THE COMMISSIONER APPEAL OR BEFORE US , THEREFORE WE HAD LEFT WITH NO OTHER OPTION BUT TO DISMISS THE APPEAL OF THE ASSESSEE. AS PER T HE EARLIER ORDER , THE ASSESSEE WAS REQUIRED TO PRODUCE THE DOCUMENTARY EV IDENCE SUPPORTING HIS ITA NO. 694/JP/15 JANTA CONSTRUCTION CO., JAIPUR VS. ACIT, CIRCLE-4, JAIPUR 5 CASE THAT THE AMOUNT OF RS 487000/WAS SPENT FOR THE PURCHASE OF THE PURCHASE OF BITUMEN.THE CONTENTION OF THE ASSESSEE THAT NO F RESH ADDITION OR DISALLOWANCES CAN BE MADE AFTER THE INVOCATION OF S ECTION 145(3) OF THE ACT, IN OUR VIEW IN THE LIGHT OF THE ORDER PASSED BY THE TR IBUNAL IN THE EARLIER ROUND OF LITIGATION, THIS ISSUE CANNOT BE AGITATED BEFORE US , AS THE ASSESSEE HAS NOT PRESSED THIS ISSUE IN THE EARLIER ROUND OF LITIGATI ON, HENCE THIS ISSUE CANNOT BE RAISED BEFORE US. THEREFORE THE APPEAL OF THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/06 /2016. SD/- SD/- ( SHRI BHAGCHAND) (LALIET KUMAR ) YS[KK LNL;@ ACCOUNTANT MEMBER U ;KF;D LNL; JUDICIAL MEMBER JAIPUR DATED:- 15/ 06 /2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- JANTA CONSTRUCTION CO. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-4, JAIPUR 3. VK;DJ VK;QDR@ CIT II, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-II, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 694/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR ITA NO. 694/JP/15 JANTA CONSTRUCTION CO., JAIPUR VS. ACIT, CIRCLE-4, JAIPUR 6