Dy. Commissioner of Income Tax, Lucknow V. M/s U.P Rajya Chini Avam Ganna Vikas Nigam Ltd., Lucknow

ITA 730/LKW/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7158 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 14-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 43B

Judgement Text

I.T.A. NO.730/LKW/2016 ASSESSMENT YEAR:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.730/LKW/2016 ASSESSMENT YEAR:2011-12 DY.C.I.T., RANGE-6, LUCKNOW. VS. M/S U.P. RAJYA CHINI AVAM GANNA VIKAS NIGAM LIMITED, VIPIN KHAND, GOMTI NAGAR, LUCKNOW. PAN:AAACU 5951 D (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LEARNED CIT(A)-II, LUCKNOW DATED 13/10/2016 PERTAINING TO A SSESSMENT YEAR 2011- 2012. IN THIS APPEAL THE REVENUE HAS RAISED THE F OLLOWING GROUNDS: 1. THE COMMISSIONER OF INCOME TAX (APPEAL) HAS ERR ED IN LAW IN DELETING THE ADDITION OF RS.1,31,20,352/- IG NORING THE FACT THAT THE ASSESSEE IS FOLLOWING MERCANTILE SYST EM OF ACCOUNTING, HENCE, PAYMENTS MADE U/S 43B OF THE INC OME TAX ACT, 1961 ARE ALLOWABLE ONLY ON THE PAYMENT BASIS, WHILE THE ASSESSEE COULD NOT PRODUCE THE PROOF OF PAYMENT/CHA LLANS. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) LUCKN OW, HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS.10,75,86,270/- BEING AMOUNT PAID ON BEHALF OF ER STWHILE OWNERS AND TREATING IT AS TYPOGRAPHICAL ERROR. APPELLANT BY SHRI A. K. BAR, CIT (D.R.) RESPONDENT BY SHRI SAMRAT CHANDRA, F.C.A. DATE OF HEARING 23/07/2019 DATE OF PRONOUNCEMENT 26 /0 7 /2019 I.T.A. NO.730/LKW/2016 ASSESSMENT YEAR:2011-12 2 3. THE COMMISSIONER OF INCOME TAX (APPEALS)LUCKNO W, HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITIONS OF RS.10,75,86,270/- AND ADMITTING FRESH EVIDENCE IGNO RING THE PROVISIONS OF RULE 46A OF THE I.T. RULES, 1962. 2. AT THE OUTSET, LEARNED D. R. SUBMITTED THAT ASSE SSING OFFICER HAD RIGHTLY MADE THE ADDITION U/S 43B OF THE ACT, WHICH LEARNED CIT(A) HAS WRONGLY DELETED ONLY ON THE BASIS OF TAX AUDIT REP ORT AND ASSESSEE DID NOT PRODUCE ANY CHALLAN BEFORE THE ASSESSING OFFICER OR BEFORE CIT(A). 2.1 ARGUING SECOND GROUND OF APPEAL, LEARNED D. R. SUBMITTED THAT THE ASSESSING OFFICER HAD MADE THE ADDITION AS THE ASSE SSEE WAS NOT ABLE TO EXPLAIN THE AMOUNT PAID ON BEHALF OF ERSTWHILE OWNE R AND CIT(A) HAS SIMPLY HELD THAT IT WAS A TYPOGRAPHICAL ERROR AND THEREFOR E, HAS DELETED THE ADDITION. 3. LEARNED A. R., ON THE OTHER HAND, STATED THAT HE WAS CARRYING THE COPIES OF ALL THE CHALLANS WITH HIM AND WHICH COULD BE FILED AND IT WAS SUBMITTED THAT THESE WERE SHOWN TO LEARNED CIT(A) A LSO AND THEREFORE, IT WAS ARGUED THAT CIT(A) HAS RIGHTLY DELETED THE ADDI TION. 3.1 COMING TO ANOTHER GROUND TAKEN BY THE REVENUE, LEARNED A. R. SUBMITTED THAT THE FIGURE ENTERED IN THE SCHEDULE O F INCOME TAX RETURN WAS A TYPOGRAPHICAL ERROR AND HAD SUBMITTED A CERTIFICATE BEFORE THE CIT(A) ALSO AND HE HAS RIGHTLY DELETED THE SAME. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. AS REGARDS THE FIRST GROUND RELAT ING TO DELETION OF ADDITION, WHICH THE ASSESSING OFFICER HAD MADE U/S 43B, WE FI ND THAT BEFORE ASSESSING OFFICER NO PROOF OF HAVING MADE THE PAYME NT WITHIN PRESCRIBED PERIOD OF TIME WAS FILED AND CIT(A) HAS ALSO NOT GI VEN ANY FINDING ON THE I.T.A. NO.730/LKW/2016 ASSESSMENT YEAR:2011-12 3 CHALLAN AND HE HAS MERELY RELIED ON THE COPY OF TAX AUDIT REPORT. THEREFORE, WE DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE TO T HE FILE OF THE ASSESSING OFFICER WHO SHOULD READJUDICATE THE ISSUE AFTER EXA MINING THE CHALLAN FOR MAKING THE PAYMENT U/S 43B. NEEDLESS TO SAY, THE A SSESSEE WILL BE PROVIDED REASONABLE AND SUFFICIENT OPPORTUNITY OF B EING HEARD. ACCORDINGLY, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 5. AS REGARDS GROUND NOS. 2 & 3, WE FIND THAT THE A SSESSING OFFICER MADE THIS ADDITION AS HE OBSERVED THAT IN SCHEDULE- W, THE ASSESSEE HAD DECLARED AMOUNT PAID ON BEHALF OF ERSTWHILE OWNER A T RS.10,75,86,270/-. THE ASSESSING OFFICER HAS OBSERVED THAT ASSESSEE WA S REQUIRED TO EXPLAIN BUT THE ASSESSEE DID NOT FURNISH ANY REPLY AND THER EFORE, HE MADE THE ADDITION. WE FIND THAT CIT(A) HAS ALSO NOT GIVEN A NY FINDING AS TO HOW THE FIGURE WRITTEN IN THE RETURN OF INCOME WAS A TYPOGR APHICAL ERROR. HE SIMPLY DELETED THE ADDITION BY HOLDING THAT A CERTIFICATE IN THIS REGARD HAS BEEN SUBMITTED BY THE ASSESSEE. THIS CERTIFICATE WAS NO T CONFRONTED TO THE ASSESSING OFFICER AND THEREFORE, THIS IS VIOLATION OF RULES 46A ALSO AND IN VIEW OF THE ABOVE, WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR READJUDICATION. ACCOR DINGLY, GROUND NOS. 2 & 3 ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 26/07/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:26/07/2019 *SINGH I.T.A. NO.730/LKW/2016 ASSESSMENT YEAR:2011-12 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSISTANT REGISTRAR