Ashokkumar Parshotamdas Solanki,(Prop. of Shiv Shakti Construction), Patan V. ITO, Ward-1, Patan

ITA 802/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4056 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 03-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Set aside
• Section: 143(3)

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD ( CONVENED THROUGH VIRTUAL COURT ) BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER ./ I.T.A. NO. 802/AHD/2018 ( ASSESSMENT YEAR : 2014-15) ASHOKKUMAR PARSHOTAMDAS SOLANKI PROP. OF SHIV SHAKTI CONSTRUCTION VANKAR VAS, AT MANUD, POST MANUD, MANUD, PATAN, GUJARAT 384265 / VS. ITO WARD -1, PATAN ./ ./ PAN/GIR NO. : BCLPS4828L ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KALPESH DOSHI, A.R. / RESPONDENT BY : SHRI L. P. JAIN, SR.D.R. DATE OF HEARING 13/05/2021 !'# / DATE OF PRONOUNCEMENT 01/06/2021 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS), GANDHINAGAR (CIT(A) IN SHORT), DATED 0 6.11.2017 ARISING IN THE ASSESSMENT ORDER DATED 28.12.2016 PA SSED BY THE ITA NO. 802/AHD/18 [ASHOKKUMAR P. SOLANKI VS. ITO] A.Y. 2014-15 - 2 - ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT, 1961 (THE ACT) CONCERNING AY 20142-15. 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT ALT HOUGH SEVERAL GROUNDS HAVE BEEN RAISED, THE SOLITARY GRIEVANCE IS ADDITION OF RS.77,00,063/- TOWARDS UNDISCLOSED SALES ON THE BAS IS OF COMPARISON MADE BY THE AO IN RELATION TO TURNOVER DECLARED BY THE ASSESSEE VIS- -VIS TURNOVER STATEDLY REPORTED IN THE PRESCRIBED FORM TO THE SERVICE TAX DEPARTMENT. 3. AS POINTED OUT, THE ASSESSEE IS AN INDIVIDUAL AND ENGAGED IN SUPPLY OF LABOUR FOR CONSTRUCTION AND ALLIED ACTIVI TIES IN THE NAME OF PROPRIETARY CONCERN M/S. SHIV SHAKTI CONSTRUCTION. THE RETURN OF INCOME FOR AY 2014-15 UNDER CONSIDERATION WAS FILED DECLARING A TURNOVER OF RS.58,67,316/- AND A TOTAL INCOME OF RS .4,87,000/-. IT WAS SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE B USINESS OF SUPPLY OF LABOUR CONTRACT WORK AND IS DULY REGISTERED WITH SERVICE TAX DEPARTMENT. IT WAS CONTENDED THAT THE ASSESSEE HAS RENDERED SERVICES WITHIN INDIA ONLY AND EARNED INCOME FROM S UPPLY OF LABOUR AMOUNTING TO RS.58,67,316/- ONLY. HOWEVER, THE AO HAS RECORDED A FINDING THAT AS PER AIR INFORMATION BY SERVICE TAX DEPARTMENT, THE TURNOVER IS DECLARED AT RS.1,35,67,379/-. THE AO H AS THUS ALLEGED AN AMOUNT OF RS.77,00,063/- AS UNDISCLOSED INCOME T OWARDS UNDERSTATEMENT OF TURNOVER TO THE INCOME TAX DEPART MENT. 4. THE LEARNED COUNSEL IN THIS REGARD SUBMITTED THA T THE WRONG DATA IN SERVICE TAX RETURN COULD BE POSSIBLY DUE TO CLERICAL ERROR BY THE CONSULTANT WHILE FILING THE SERVICE TAX RETURN AS THE ONLINE SYSTEM OF FILING SERVICE TAX RETURN WAS INTRODUCED ABOUT THAT TIME. IT WAS POINTED OUT THAT THE FIGURE OF EXPORT/EXEMPT SERVICE IS ITA NO. 802/AHD/18 [ASHOKKUMAR P. SOLANKI VS. ITO] A.Y. 2014-15 - 3 - WRONGLY MENTIONED BY THE CONSULTANT DUE TO UPLOADIN G OR TYPOGRAPHICAL ERROR AS THE ASSESSEE HAS PROVIDED ON LY DOMESTIC TAXABLE SERVICES WITHIN INDIA AND PAID DUE TAXES ON THE SAME. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO SEVERA L DOCUMENTS, SUCH AS, BALANCE SHEET, P&L ACCOUNT, SERVICE TAX RETURN, BANK STATEMENT ETC. TO SUPPORT THE BONAFIDES OF THE ERROR COMMITTE D WHILE FILING THE SERVICE TAX RETURN. IT WAS FINALLY SUBMITTED THAT THE ASSESSEE CANNOT BE TAXED FOR THE HYPOTHETICAL INCOME WHICH WAS NEIT HER EARNED NOR RECEIVED ON THE SOLITARY BASIS OF AN INCORRECT SERV ICE TAX RETURN. UNDER THE CIRCUMSTANCES, IT WAS URGED THAT THE MATT ER BE SET ASIDE TO THE FILE OF THE AO FOR SUITABLE VERIFICATION OF THE FACTS WITH THE SERVICE TAX DEPARTMENT TO ARRIVE AT A BENIGN VIEW I N THE MATTER. 4. THE LEARNED DR FOR THE REVENUE RELIED UPON THE O RDER OF THE AO BUT HOWEVER EXPRESSED NO OBJECTION TO THE PROPOS AL FOR FRESH VERIFICATION OF FACTS BEFORE THE AO. 5. ON THE BASIS OF FACTS NARRATED ABOVE, WE FIND AD EQUATE FORCE IN THE PLEA OF THE ASSESSEE FOR SETTING ASIDE THE ASSE SSMENT ORDER AND REMANDING THE MATTER BACK TO THE FILE OF THE AO FOR A FRESH VERIFICATION AND CONSEQUENTLY FRAMING FRESH ASSESSM ENT ORDER AFTER SUITABLE VERIFICATION OF FACTS. THE AO IN OUR VIEW SHOULD EXERCISE HIS STATUTORY POWERS AND OBTAIN INFORMATION FROM TH E SERVICE TAX DEPARTMENT TOWARDS TURNOVER AS WELL AS THE SERVICE TAX RECOVERY OF ALLEGED INFLATED TURNOVER. IT SHALL BE OPEN TO THE ASSESSEE TO PLACE ALL SUCH EVIDENCES AND MATERIALS BEFORE THE AO TO E XPLAIN THE ALLEGED VARIANCE IN THE TURNOVER IN THE DE NOVO PROCEEDINGS. THE AO SHALL MAKE SUCH ENQUIRY AS MAY BE CONSIDERED EXP EDIENT TO EXAMINE THE BONAFIDES OF THE STAND OF ASSESSEE. TH E ADDITIONS MADE ARE THUS SET ASIDE AND THE AO IS DIRECTED TO DETERM INE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONAB LE OPPORTUNITY TO ITA NO. 802/AHD/18 [ASHOKKUMAR P. SOLANKI VS. ITO] A.Y. 2014-15 - 4 - THE ASSESSEE IN THIS REGARD AND AFTER MAKING SUCH C LARIFICATIONS AND EXAMINATIONS AS MAY BE CONSIDERED EXPEDIENT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 01/06/2021 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 01/06/20 21