SANJEEVKUMAR PANDEY, MUMBAI V. ACIT CIR 3, THANE

ITA 7095/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5476 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 7095/MUM/2016 ASSESSMENT YEAR: 2012 - 13 MR. SANJEEVKUMAR PANDEY 603, F ILIX , OPP. ASIAN PAINTS, LBS MARG, BHANDUP (W), MUMBAI - 400078. VS. ACIT - CIRCLE 3, ASHAR IT PARK, THANE 400602. PAN NO. AGUPP3416B APPELLANT RESPONDENT ASSESSEE BY : MR. DEVENDRA JAIN, AR REVENUE BY : MR. RAM TIWARI, DR DATE OF HEARING : 10/07/2018 DATE OF PRONOUNCEMENT : 18/07/2018 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 (APPEALS) - 2 [IN SHORT CIT(A) ], THANE AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUND OF APPEAL READS AS UNDER: ON THE FACTS AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.56,28,197/ - TO THE SERVICE INCOME OF THE ASSESSEE BASE D ON THE WRONG ETDS RETURNS FILED BY THE ASSESSEES CLIENTS. THE CONCERNED PARTIES/CLIENTS HAVE SUBMITTED THE LEDGER CONFIRMATIONS/CERTIFICATES DISCLOSING THE ACTUAL PAYMENTS MADE TO THE ASSESSEE. THE RECTIFICATION OF ETDS RETURNS IS NOT SANJEEVKUMAR PANDEY ITA NO. 7095/MUM/2016 2 DONE AT THE END OF THE CLIENTS/PARTIES OVER WHICH THE ASSESSEE HAS NO CONTROL AND HAS THUS PUT HIM TO HARDSHIP. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS O F FREIGHT FORWARDING UNDER THE NAME AND STYLE SHOOLIN SHIPPING SERVICES (INDIA) PVT. LTD.. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) NOTICED THAT THERE WAS A DIFFERENCE OF RS.1,63,86,721/ - BETWEEN THE RECEIPTS AS REFLECTED I N FORM 26AS VIS - A - VIS RECEIPTS REFLECTED IN THE BOOKS OF ACCOUNTS. THEREFORE, THE AO MADE AN ADDITION OF THE ABOVE AMOUNT TO THE INCOME SHOWN BY THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) DELETED AN AMOUNT OF RS.1,07,60,524/ - FROM THE ABOVE AMOUNT OF RS.1,63,86,721/ - ON THE GROUND THAT THE ASSESSEE COULD FILE THE NECESSARY DETAILS/RECONCILIATION. HOWEVER, HE CONFIRM ED THE BALANCE AMOUNT OF RS.56,28,197/ - AS THE ASSESSEE COULD NOT REC ONCILE/FILE NECESSARY CONFIRMATION LETTERS BEFORE HIM FROM THE CONCERNED PARTIES. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE FILES A PAPER BOOK (P/B) CONTAINING (I) COPY OF CONFIRMATION LETTER FROM INTEVA PRODUCTS INDIA AUTHOMATIVE PVT. LTD., (II) COPY OF R ELEVANT E XTRACT OF 26AS, (III) COPY OF OUR LEDGER IN THE BOOKS OF FLEET GUARD FILTERS PVT. LTD., (IV) COPY OF R ECONCILIATION S TATEMENT AND (V) COPY OF INVOICES OF FY 2011 - 12 BOOKED IN FLEET GUARD FILTERS PVT. LTD. FY 2011 - 12. THE LD. COUNSEL SUBMITS THAT AS PER THE TDS RETURN FILED BY FLEETGUARD FILTERS PVT. LTD., THE APPELLANTS INCOME IS RS.3,30,74,174/ - WHICH IS REFLECTED IN THE 26AS OF THE ASSESSEE. FURTHER, AS PER THE CLIENTS OWN BOOKS OF ACCOUNTS, THE AMOUNT OF BILLING AS PER THEIR SANJEEVKUMAR PANDEY ITA NO. 7095/MUM/2016 3 BOOKS OF ACCOUNTS IS RS.3,11,54,626/ - AND THEY OFFERED NO EXPLANATION FOR THE DIFFERENCE BETWEEN THEIR TDS RETURN AND THE BOOKS OF ACCOUNTS. IT IS STATED THAT THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR THE WRONG TDS STATEMENT FILED BY THE DEDUCTOR. THE SA ID AMOUNT OF RS.3,11,54,626/ - INCLUDES RS.9,10,223/ - WHICH PERTAINS TO THE PREVIOUS YEAR AY 2011 - 12. FURTHER, IT IS STATED THAT ACCORDINGLY, THE APPELLANT HAS DISCLOSED AN EXTRA REVENUE OF RS.68,053/ - AS PER PAGE 12 OF THE P/B . THE LD. COUNSEL ALSO SUBMITS THAT IN SUCH A SITUATION, SINCE, THERE IS NO CHANGE IN THE TAX RATE BETWEEN AY 2012 - 13 AND AY 2011 - 12, THERE IS NO LOSS CAUSED TO THE REVENUE. THE LD. COUNSEL ALSO SUBMITS THAT THE DIFFERENCE WITH INTEVA PRODUCTS LVS (INDIA) WOULD COME TO RS.3,94,835/ - AND IN THE CASE OF THUSE ELECTRONICS, IT WOULD BE RS.34,848/ - 6. ON THE OTHER HAND, THE LD. DR SUPPORTS THE ORDER PASSED BY THE LD. CIT(A) AND SUBMITS THAT A RELIEF OF RS.1,07,60,524/ - HAS ALREADY BEEN GIVEN BY THE LD. CIT(A) AND THE AMOUNT CONFIRMED BY HI M IS RS.56,28,197/ - AS THE ASSESSEE FAILED TO FILE NECESSARY CONFIRMATION LETTERS FROM THE CONCERNED PARTIES. ALSO IT IS STATED BY HIM THAT AS THE ASSESSEE FAILED TO RECONCILE THE DIFFERENCE, THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ABOVE AMOUNT OF RS.56,28 ,197/ - . 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE MISMATCH APPEARING BETWEEN THE APPELLANTS BOOKS OF ACCOUNT AND 26AS AFTER THE ORDER OF THE LD. CIT(A) IS AS UNDER: PARTY NAME AMOUNT OF DIFFERENCE (IN RS.) FLEETGUARD FILTERS PVT. LTD. 37,14,879/ - INTEVA PRODUCTS LVS (INDIA) 10,55,085/ - THUSE ELECTRONICS 8,58,233/ - SANJEEVKUMAR PANDEY ITA NO. 7095/MUM/2016 4 TOTAL 56,28,179/ - WE ARE OF THE CONSIDERED VIEW THAT THE ABOVE DIFFERENCE OF RS.56,28,179/ - REQUIRES VERIFICATION AT THE LEVEL OF AO, AFTER THE RELEVANT DOCUMENTS/EVIDENCE ARE FILED BY THE ASSESSEE. IN VIEW OF THE ABOVE FACTS, WE SET ASIDE THE ABOVE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO MAKE A FRESH ORDER AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE 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 COURT ON 18/07/2018. SD/ - SD/ - ( JOGINDER SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 18/07/2018 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// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI