Anirban Transport Service, Hooghly V. A.C.I.T Cir - I,Hooghly, Hooghly

ITA 821/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99705 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: MANISH TIWARI
• Keywords: Principle of natural justice
• Section: 144; 43B; 142(1); 194C

Judgement Text

I.T.A. NO . 821 / KOL ./20 1 3 & I.T.A. NO. 1254/KOL/2013 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI S.V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 821 / KOL / 20 1 3 ASSESSMENT YEAR : 200 8 - 20 0 9 M/S. ANIRBAN TRANSPORT SERVICE,............. .. .. ...... . . APPELLANT 88A, DEY STREET, P.O. SERAMPORE, HOOGHLY - 712 201 [PAN: AA FFA 4747 F ] - VS. - ASSISTANT COMMISSIONER OF INCOME T AX, ................... . RESPONDE NT CIRCLE - 1 , HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, CHINSURAH, HOOGHLY - 712 10 1 & I .T.A. NO. 1254/KOL / 20 13 ASSESSMENT YEAR : 200 8 - 2009 ASSISTANT COMMISSIONER OF INCOME TAX,................... . APPELLANT CIRCLE - 1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, CHINSURAH, HOOGHLY - 712 101 - VS. - M/S. ANIRBAN TRANSP ORT SERVICE,........................ . RESPONDENT 88A, DEY STREET, P.O. SERAMPORE, HOOGHLY - 712 201 [PAN: AAFFA 4747 F] APPEARANCES BY: S HRI MANISH TIWARI , FCA , FOR THE ASSESSEE MD. GHAYAS UDDIN , J CIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING T HE HEARING : AUGUST 11 , 2 01 5 DATE OF PRONOUNCING THE ORDER : AUGUST 13 , 201 5 O R D E R PER S.V. MEHROTRA : TH E A PPEAL BEING ITA NO. 821/KOL/2013 FILED BY THE ASSESSEE AND THE APPEAL BEING ITA NO. 1254/KOL/2013 FILED BY THE REVENUE ARE ARISING OUT OF THE ORDER S OF LD. COMMISSIONER OF INCOME TAX (APPEALS) - XX XVI , I.T.A. NO . 821 / KOL ./20 1 3 & I.T.A. NO. 1254/KOL/2013 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 2 OF 4 KOLKATA BOTH D ATED 07 . 0 2 .20 1 3 FOR THE SAME ASSESSMENT YEAR 200 8 - 0 9 BY TAKING THE FOLLOWING EFFECTIVE GROUNDS OF APPEALS: - (IN ITA NO. 821 /KOL/2013 ) 1 . THAT, THE ORDER OF COMMISSIONER (APPEAL) - XX XVI, KOLKATA IS CONTRARY TO LAW AND ERRED IN IGNORING THE FACTS THAT ( A ) THE AO DID NOT COMPLY WITH THE DIRECTION ISSUED BY THE CIT(APPEAL) TO VERIFY THE SUBMISSION OF THE APPELLANT DESPITE SEVERAL REM9INDS ISSUED TO HIM, ADDL CIT, RANGE - 1, HOOGHLY AND CIT - XX, KOLKATA. ( B ) THE LD. CIT(APPEAL) ERED IN UPHOLDING THE ADDITION OF RS.64,84,065/ - BEING VEHICLE HIRE CHARGES BY INVOKING PROVISION OF SEC. 40(A)(IA) U/S. 194C OF THE I.T. ACYT NOT WITHOUT EXAMINING THE DETAILS DOCUMENTS IN SUPPORT OF VEHI CLE CHARGES PAID. ( C ) THE LD. CIT(A) ERRED IN UPHOLDING THE ADDITION OF INTEREST OF RS.1,37,192/ - ON THE UNSECURED LOAN WITHOUT CONDUCTING ENQUIRY AT HIS OWN DISCRETION. ( D ) THE CIT(A) ERRED IN UPHOLDING THE ADDITION OF 5% OF THE TOTAL EXP ENDITURE HIM BUT EXAMINING THE DOCUMENTS RELATING TO THE SAID EXPENDITURE. ( E ) THE LD. CIT(A) ERRED IN IGNORING THE DECISION OF THE APEX COURT IN THE CASE OF KESHOV MILLS CO. LTD. VS. - CIT (1965) 56 ITR 365 (SC). (IN ITA NO. 1254/KOL/2013 ) 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) WAS NOT JUSTIFIED IN ALLOWING RELIEF OF RS.36,27,158/ - ON ACCOUNT OF LIABILITIES FOR EXPENSES AND SUNDRY CREDITORS. 2. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A ) OUGHT TO HAVE CROSS- EXAMINED THE EXPENSES/CREDITORS' FIGURE WITH THE THIRD PARTIES, GIVEN THE FACT, HIS POWERS ARE COTERMINOUS WITH THOSE OF AN A.O. 3. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) OUGHT TO HAVE EXAMINED THE ALLO WANCES OF EXPENDITURE AND SUNDRY CREDITORS' FIGURE IN THE LIGHT OF SEC. 40(A)(IA) R/W SEC. 194C, WHEN THE ASSESSEE IS FOUND TO BE IN THE BUSINESS OF TRANSPORTATION AND LD. CIT(A) HAVE OTHERWISE FOUND THE EXPENDITURE TO BE IN ORDER. I.T.A. NO . 821 / KOL ./20 1 3 & I.T.A. NO. 1254/KOL/2013 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 3 OF 4 4. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) OUGHT NOT TO HAVE RELIED ONLY ON THE LEDGER COPIES OF EXCISE/GOVT. DUTIES BUT TO HAVE INSISTED ON THE PAID - CHALLANS IN GIVING RELIEF U/S 43B FOR AN AMOUNT OF RS.6,44,170/ - . 5. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) WAS NOT JUSTIFIED IN REDUCING THE ESTIMATED ADDITION FROM 10% TO 5% OF VARIOUS EXPENSES WHEN NO SUPPORTING DOCUMENTS COULD BE PRODUCED AT ALL. 6. THAT, LD. TRIBUNAL MAY FOR THE SAKE OF JUSTICE REMAND THE ISSUES CONT AINED IN THE GROUNDS OF APPEAL PREFERRED FROM SI. NO. 1 TO 4 TO THE FILE OF THE A.O. CONSIDERING THE FACT THAT NO ASSESSEE EVER ALLEGED THAT THE A.O. WAS TOO BUSY WITH THE CONSTRUCTION OF NEW OFFICE BUILDING IN CHINSURAH TO HEAR THE ASSESSEE AND SO THE ASS ESSEE'S CASE COULD NOT REASONABLY BE AN EXCEPTION. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESESE - FIRM WAS A TRANSPORT CONTRACTOR AND ALSO ENGAGED IN HIRING OF PASSENGER VEHICLES. THE ASSESSEE HAD FILED ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 79,85,688/ - . THE ASSESSING OFFICER HAD ISSUED NOTICES UNDER SECTION S 143(2) AND 142(1) , WHICH WERE DULY SIGNED AND SERVED ON THE ASSESSEE AND THE ASSESSEE HAD ONLY PARTIALLY COMPLIED WITH THE NOTICES. THEREFORE, THE ASSESSING OFFICER PASSED THE ORDER UNDER SECTION 144 DETERMINING THE TOTAL INCOME AT RS.2,04,97,990/ - AFTER MAKING VARIOUS ADDITIONS OF THE DISALLOWANCES. 2.1. BEFORE THE LD. CIT(APPEALS), THE ASSESSEE HAD FILED WRITTEN SUBMISSION DATED 10.10.2011, WHICH WAS FORWARDED TO THE ASSESSING O FFICER ON 24.10.2011 BY THE LD. CIT(APPEALS) WITH A DIRECTION TO EXAMINE THE SUBMISSIONS OF THE ASSESSEE ON ALL THE POINTS AND SEND A REMAND REPORT WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF THE LETTER. HOWEVER, LD. CIT(APPEALS) OBSERVED THAT INSPITE OF SEVERAL REMINDERS ISSUED TO THE ASSESSING OFFICER, NO REMAND REPORT WAS RECEIVED FROM HIS OFFICE AND, THEREFORE, HE PASSED THE ORDER ON THE BASIS OF SUBMISSION MADE BEFORE HIM AND PARTLY ALLOWED THE ASSESSEE S APPEAL. BEING AGGRIEVED, THE ASSESSEE AS WELL AS THE DEPARTMENT IS IN APPEALS BEFORE THE TRIBUNAL. I.T.A. NO . 821 / KOL ./20 1 3 & I.T.A. NO. 1254/KOL/2013 ASSESSMENT YEAR: 200 8 - 20 0 9 PAGE 4 OF 4 3. THE ASSESSEE HAS ASSAILED THE ORDER OF LD. CIT(APPEALS) ON VARIOUS ADDITIONS SUSTAINED BY HIM AND HAD ALSO TAKEN A GROUND THAT THE ASSESSING OFFICER HAD NOT COMPLIED WITH THE DIRECTION OF LD. CIT(APPEALS). T HE DEPARTMENT IS AGGRIEVED BY THE FINDINGS OF LD. CIT(APPEALS), INTER ALIA, ON THE GROUND THAT LD. CIT(APPEALS) OUGHT TO HAVE CROSS - EXAMINED THE EXPENSES/ CREDITORS FIGURE WITH THE THIRD PARTIES AS HIS POWERS ARE COTERMINOUS WITH THOSE OF AN ASSESSING OFF ICER. FURTHER, NO REMAND REPORT WAS RECEIVED FROM ASSESSING OFFICER. THUS , IN EFFECT , PROCEEDING S SUFFER FROM COMPLI ANC ES WITH PRINCIPLES OF NATURAL JUSTICE AT DIFFERENT STAGES, I.E. BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE LD. CIT(APPEALS). THER EFORE, WE IN THE INTEREST OF IMPARTING SUBSTANTIAL JUSTICE TO BOTH THE PARTIES SET ASIDE THE ORDER OF LD. CIT(APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FOR PASSING THE ORDER DE NOVO. 4 . IN THE RESULT, BOTH THE APPEAL S FILED BY T HE ASSESSE E AND REVENUE ARE ALLOW ED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST , 201 5 . SD/ - SD/ - MAHAVIR SINGH S.V. MEHROTRA ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 13 TH D AY OF AUGUST , 201 5 COPIES TO : (1) M/S. ANIRBAN TRANSPORT SERVICE, 88A, DEY STREET, P.O. SERAMPORE, HOOGHLY - 712 201 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 1, HOOGHLY, AAYAKAR BHAWAN, G.T. ROAD, KHADINA MORE, CHINSURAH, HOOGHLY - 712 101 (3) COMMISSIONER OF INCOME - TAX (APPEALS) - XX XVI , KOLKATA (4) COMMISSIONER OF INCOME TAX - , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY OR DER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .