ITO, WARD- 2(3), BILASPUR(CG) V. SHRI SHIV KUMAR GUPTA, KOREA(C.G)

ITA 78/BIL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4290 (ITAT-RAIPUR)
• Duration Of Justice: 4 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S SARGAR
• Keywords: Tax effect
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.78/RPR/2014 ASSESSMENT YEAR : 2008-09 ITO, WARD- 2(3), BILASPUR (CG). VS. SHRI SHIV KUMAR GUPTA, PROP. M/S RAJASTHAN GUJARAT TRANSPORT CORPORATION, MANENDRAGARH, DISTT.- KOREA (CG). PAN : AIYPG5938P (APPELLANT) (RESPONDENT) ITA NO.206/RPR/2014 ASSESSMENT YEAR : 2008-09 SHRI SHIV KUMAR GUPTA, PROP. M/S RAJASTHAN GUJARAT TRANSPORT CORPORATION, CIVIL LINES, MANENDRAGARH, DISTT.- KOREA (CG). VS. ITO, WARD- 2(3), BILASPUR (CG). PAN : AIYPG5938P (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI V. S. SARGAR, DR ASSESSEE BY : SHRI AMIT JAIN, ADV. DATE OF HEARING : 07-08-2018 DATE OF PRONOUNCEMENT : 09-08-2018 O R D E R PER R. K. PANDA, AM : ITA NO.78/RPR/2014 FILED BY THE REVENUE AND ITA NO.206/RPR/2014 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28.02.2014 OF CIT(A), 2 ITA NO.78/RPR/2014 ITA NO.206/RPR/2014 BILASPUR (CG) RELATING TO ASSESSMENT YEAR 2008-09. FOR THE SAKE OF CONVENIENCE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NO.78/RPR/2014 (BY REVENUE) : 2. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE REVENUE IS BELOW RS.20 LAKHS. THEREFORE, IN VIEW OF THE LATEST CBDT CIRCULAR NO.03/2018 [F.NO.279/MISC.142/2007-ITJ (PT)] DATED 11 TH JULY, 2018 WHICH IS APPLICABLE EVEN TO PENDING APPEALS, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. 3. THE LD. DR ON THE OTHER HAND FAIRLY CONCEDED THAT THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE REVENUE IS ADMITTEDLY BELOW RS.20 LAKHS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY BOTH THE SIDES. IT IS AN ADMITTED FACT THAT THE TAX EFFECT INVOLVED IN THE GROUNDS RAISED BY THE REVENUE IS LESS THAN RS.20 LAKHS. THEREFORE, IN VIEW OF THE LATEST CBDT CIRCULAR CITED (SUPRA) RAISING THE MONETARY LIMITS FOR FILING OF THE APPEALS BEFORE THE TRIBUNAL WHICH IS APPLICABLE EVEN TO PENDING APPEALS, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 3 ITA NO.78/RPR/2014 ITA NO.206/RPR/2014 ITA NO.206/RPR/2014 (BY ASSESSEE) : 5. GROUND OF APPEAL NO.1 BY THE ASSESSEE READS AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN ESTIMATING THE INCOME FROM TRANSPORT COMMISSION BUSINESS AT RS.9,69,600/- AS AGAINST RETURNED INCOME OF RS.2,86,882/- AND THEREBY SUSTAINING THE ADDITION OF RS.6,82,718/-. THE ADDITION MADE/ SUSTAINED BY LD. CIT(A) IS UNJUSTIFIED, UNWARRANTED AND UNCALLED FOR. 6. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM SERVICE SECTOR TRANSPORTER COMMISSION. HE FILED HIS RETURN OF INCOME ON 31.03.2009 DECLARING TOTAL INCOME OF RS.2,86,880/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE ADDITION OF RS.60,03,022/- U/S 40A(3) AND RS.1,08,000/- ON ACCOUNT OF DISALLOWANCE OF EXPENSES FOR WANT OF PROPER BILLS AND VOUCHERS. 7. IN APPEAL, THE LD. CIT(A) WHILE DELETING THE ADDITION MADE BY THE ASSESSING OFFICER U/S 40A(3), HOWEVER, HELD THAT THE ASSESSEE HAS UNDERESTIMATED ITS TRANSPORT COMMISSION TO THE EXTENT OF RS.6,82,718/- AND ACCORDINGLY HE DIRECTED THE ASSESSING OFFICER TO MAKE ADDITION OF RS.6,82,718/-. 8. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 9. AFTER HEARING BOTH THE SIDES, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). WE FIND THE LD. CIT(A) WHILE DIRECTING THE ASSESSING OFFICER FOR MAKING THE ABOVE ADDITION HAS GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE 4 ITA NO.78/RPR/2014 ITA NO.206/RPR/2014 ARRANGED 1212 TRIPS FOR TRANSPORTATION OF COAL TO THE CONSIGNEE DURING THE YEAR UNDER CONSIDERATION AND THE ASSESSEE HAS EARNED AN AMOUNT OF RS.9,69,600/- BEING RS.800 PER TRIP AS COMMISSION WHEREAS HE HAS SHOWN ONLY RS.2,86,882/-. HE, THEREFORE, DIRECTED THE ASSESSING OFFICER TO MAKE ADDITION OF RS.9,69,600/-. THE LD. COUNSEL FOR THE ASSESSEE COULD NOT BRING OUT ANY MATERIAL TO CONTROVERT THE ABOVE FINDING OF THE LD. CIT(A). ACCORDINGLY, THE SAME IS UPHELD AND THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 10. GROUND OF APPEAL NO.2 BY THE ASSESSEE READS AS UNDER :- 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. OF RS.1,08,00/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWAL. THE ADDITION MADE BY THE A.O. AND SUSTAINED BY LD. CIT(A) IS UNJUSTIFIED, UNWARRANTED AND UNCALLED FOR. 11. AFTER HEARING BOTH THE SIDES, WE FIND THE ASSESSING OFFICER IN THE ASSESSMENT ORDER HAS MENTIONED THAT THE ASSESSEES FAMILY CONSISTS OF FOUR MEMBERS I.E. WIFE, HUSBAND, ONE SON AND ONE DAUGHTER AND NOTHING HAS BEEN SHOWN AS WITHDRAWAL FROM THE CAPITAL ACCOUNT TOWARDS HOUSEHOLD EXPENSES. HE, THEREFORE, ESTIMATED THE HOUSEHOLD EXPENSES OF THE ASSESSEE AT RS.1,08,000/- AND ACCORDINGLY MADE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. WE FIND, IN APPEAL THE LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT ALTHOUGH THERE WAS HOUSEHOLD WITHDRAWAL IN CAPITAL ACCOUNT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR, HOWEVER, THERE WAS NO SUCH WITHDRAWAL DURING THE IMPUGNED ASSESSMENT YEAR. THE EXPLANATION OF THE ASSESSEE THAT HIS 5 ITA NO.78/RPR/2014 ITA NO.206/RPR/2014 FAMILY IS RESIDING IN A COMMON HOUSE WITH COMMON KITCHEN WITH HIS BROTHER SHRI VISHHWANATH GUPTA AND THE HOUSEHOLD EXPENSES ARE MET OUT FROM HIS WITHDRAWALS WAS REJECTED BY THE LD. CIT(A). SINCE THE ASSESSEE IN THE INSTANT CASE HAS NOT SHOWN ANY WITHDRAWAL FROM HIS CAPITAL ACCOUNT TOWARDS HOUSEHOLD EXPENSES, THEREFORE, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER AND UPHELD BY THE LD. CIT(A), IN OUR OPINION, DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE SAME IS UPHELD AND THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AS WELL AS BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR