ITO, Guna V. Sh. Samarjeet Singh, Guna

ITA 76/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 7017 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-05-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 25-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: AMIT SOGANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 76/AGRA/2010 ASSTT. YEAR : 2002-03 INCOME-TAX OFFICER, VS. SHRI SAMARJEET SINGH, GUNA. DHARNAWADA HOUSE, HAT ROAD, GUNA(MP). (PAN: AHQPS 8187 B) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI A.K. SHARMA, JR. D.R. FOR RESPONDENT : SHRI AMIT SOGANI, ADVOCATE ORDER PER BENCH: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 22.01.2010 OF CIT(A), GWALIOR, ON THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.6,41,296/- ON ACCOUNT OF PROVIDENT FUND CONTRIBUTION RECEIVED FROM THE EMPLOYEES NOT DEPOSI TING THE SAME ON OR BEFORE THE DUE DATE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.1,15,000/- OUT OF RS.2,65,000/- ON ACCOUNT OF DISALLOWANCES OUT OF EXPENSES CLAIMED ON LABOUR WAGES, TRAVELING, BONUS, STAFF WELFARE ETC. 2. THE BRIEF FACTS RELATING TO GROUND NO. 1 ARE THA T OUT OF CONTRIBUTION OF PROVIDENT FUND RECEIVED BY ASSESSEE FROM HIS EMPLOYEES AMOUNTING T O RS.7,98,527/-, THE ASSESSEE HAD DEPOSITED 2 ONLY RS.1,57,231/- ON OR BEFORE THE DUE DATE FOR BE ING CREDITED INTO THE EMPLOYEES ACCOUNT. THE REMAINING AMOUNT OF RS.6,41,296/- HAVING NOT BEEN D EPOSITED WITHIN THE DUE DATE, I.E., 15 TH OF EVERY MONTH AS REPORTED BY THE CA IN THE AUDIT REPO RT, WAS, THEREFORE, TREATED AS INCOME OF THE ASSESSEE WITHIN THE MEANING OF SECTION 2(24)(X) OF THE ACT. SINCE THE ASSESSEE DID NOT DECLARE THIS INCOME IN THE RETURN AND NO EXPLANATION WITH RESPEC T THERETO WAS FURNISHED BEFORE THE ASSESSING OFFICER, THE ASSESSING OFFICER ADDED THE SAME TO TH E TOTAL INCOME OF THE ASSESSEE. 3. IN APPEAL BEFORE THE CIT(A), IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE PAYMENTS HAVE BEEN MADE DURING THE FINANCIAL YEAR AND IN ANY CASE BEFORE THE DUE DATE OF FILING OF RETURN. THEREFORE, NO ADDITION OF RS.6,41,296/- CAN BE MADE AGAINST THE ASSESSEE. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND REL YING ON THE DECISION OF ITAT DELHI BENCH IN THE CASE OF ADDL. CIT VS. VESTAS RRB INDIA LIMITED DATED 20.05.2004 (2005) 92 ITD 1, DELETED THE ADDITION. 4. THE LEARNED DR, RELYING UPON THE ORDER OF ASSESS ING OFFICER, CONTENDED THAT SINCE THE ASSESSEE FAILED TO DEPOSIT THE AMOUNT OF PROVIDENT FUND WITHIN THE DUE DATE FOR CREDITING THE SAME INTO THE ACCOUNTS OF EMPLOYEES, THE CONCLUSION OF A SSESSING OFFICER NEEDS NOT TO BE INTERFERED WITH. THE LEARNED AR, ON THE OTHER HAND, REITERATI NG THE SUBMISSIONS MADE BEFORE THE FIRST APPELLATE AUTHORITY, RELIED ON THE IMPUGNED ORDER O F THE CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDER ED THE SAME. IT IS NOT IN DISPUTE THAT THE AMOUNT RECEIVED AS PROVIDENT FUND WAS DEPOSITED BY THE ASSESSEE BEFORE THE DUE DATE OF FILING OF RETURN. A PERUSAL OF THE RECORD REVEALS THAT THE CI T(A) HAS DELETED THE ADDITION PLACING RELIANCE 3 ON THE DECISION OF HONBLE ITAT, DELHI BENCHES IN T HE CASE OF ADDL. CIT VS. VESTAS RRB INDIA LIMITED DATED 20.05.2004 (SUPRA), WHICH HAS BEEN PA SSED AFTER FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ALLIED MOTORS (P) LTD. VS. CIT (1997) 224 ITR 677. MOREOVER, THE ISSUE IN DISPUTE IS COVERED BY THE DECISION OF THIS BENCH OF TRIBUNAL IN THE CASE OF ASSESSEE ITSELF VIDE ORDER DATED 31 ST JULY, 2008 FOR A.Y. 2001-02, AND ITAT MUMBAI D BENCH IN THE CASE OF FLUID AIR (INDIA) LTD. VS. DEPUTY CIT, 63, ITD (BOM ) 182. NO CONTRARY DECISION IS LAID ON RECORD BY THE LEARNED DR TO REVERSE THE CONCLUSION REACHED BY THE CIT(A). THUS, THE FIRST GROUND OF APPEAL STANDS REJECTED. 6. THE NEXT GROUND RELATES TO DELETION OF ADDITION OF RS.1,15,000/- OUT OF ADDITION OF RS.2,65,000/- MADE BY ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCES OF EXPENSES CLAIMED ON LABOUR WAGES, TRAVELING, BONUS, STAFF WELFARE ETC. THE ASSESSING OFFICER MADE THE ADDITION ON ESTIMATE BASIS AFTER TAKING INTO ACCOUNT THE NET PR OFIT RATE OF LAST YEAR AND THE YEAR IN DISPUTE. THE CIT(A) RESTRICTED THE ADDITION FROM RS.2,65,000/- T O RS.1,50,000/- KEEPING IN VIEW THE FACT THAT THE ASSESSEE HAD PRODUCED THE BOOKS OF ACCOUNT BEFO RE THE ASSESSING OFFICER AND ALSO CONSIDERING THE COMPARISON OF NET PROFITS OF LAST Y EAR AND THE DISPUTED YEAR. 7. HAVING HEARD BOTH THE PARTIES, WE FIND NO GOOD R EASON TO INTERFERE WITH THE ORDER OF CIT(A). THE BOOKS OF ACCOUNTS WERE PRODUCED BY ASSE SSEE BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER DID NOT POINT OUT ANY SPECIFIC IT EM OF EXPENDITURE WHICH WAS FOUND UNVERIFIABLE. THEREFORE, KEEPING IN VIEW THE PREVIO US HISTORY, NATURE OF ASSESSEES BUSINESS, ESTIMATION OF ADDITION AND LACK OF COGENT EVIDENCE TO SUPPORT THE ESTIMATION MADE BY AO, WE 4 FIND NO GOOD REASON TO DISTURB THE QUANTUM OF ADDIT ION SUSTAINED BY THE CIT(A) ON THIS COUNT. AS A RESULT, THIS GROUND OF REVENUE ALSO STANDS DISMIS SED. 8. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 24.05.2011. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MAY, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY