Shashikala Ramkumar, Hyderabad V. Asst. Commissioner of Income Tax, Circle-4(1), Hyderabad

ITA 825/Hyd/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5704 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 25-02-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 04-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: TDS
• Section: 40(a)(ia); 201(1); 201; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 824/HYD/18 2012-13 SMT.SHASHIKALA RAMKUMAR, HYDERABAD [PAN: AGPPR1448G] ASST.COMMISSIONER OF INCOME TAX, CIRCLE-4(1), HYDERABAD 825/HYD/18 2013-14 FOR ASSESSEE : NONE FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 25-02-2021 DATE OF PRONOUNCEMENT : 29-04-2021 O R D E R PER S.S.GODARA, J.M. : THESE TWO ASSESSEES APPEALS FOR AYS.2012-13 & 2013 -14 ARISE AGAINST THE CIT(A)-1, HYDERABADS ORDER(S) DATED 26-03- 2018 IN CASE NOS.0019 & 0020 / CIT(A)-1 / HYD / 201 6-17 / 2017-18 INVOLVING PROCEEDINGS U/S.143(3) OF THE INCO ME TAX ACT, 1961 [IN SHORT, THE ACT]; RESPECTIVELY. 2. THE ASSESSEE APPEARS TO HAVE FILED AN ADJOURNMENT LETTER BUT THERE IS NO BODY TO PURSUE THE SAME DURING THE COURS E OF HEARING. WE THUS PROCEED WITH THESE TWIN CASES WITH THE ABLE ASSISTANCE COMING FROM THE REVENUE SIDE. ITA NO.824/HYD/2018: 3. WE ADVERT TO THE SOLE ISSUE OF SECTION 40(A)(IA) DISALLOWANCE OF RS.20,93,462/- IN FORMER AND FIRST I SSUE OF THE ITA NOS.824 & 825/HYD/2018 :- 2 -: VERY NATURE INVOLVING A SUM OF RS.40,13,749/- IN LA TTER ASSESSMENT YEAR; RESPECTIVELY. IT IS NOT IN DISPUTE T HAT BOTH THE LEARNED LOWER AUTHORITIES HAVE HELD THAT THE ASSES SEE HAS FAILED TO DEDUCT TDS ON INTEREST PAYMENTS MADE TO VARIO US FINANCIAL INSTITUTIONS; ALMOST ALL PAYEES ARE THE SAME PARTIES, WITHOUT DEDUCTING TDS THEREUPON. 4. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE TH AT THE ASSESSEES DETAILED PAPER BOOKS HAVE FILED THE N ECESSARY DETAILS OF ALMOST ALL THE PAYEES HAVING INCLUDED THE CORRESPONDING INCOME(S) IN THEIR RESPECTIVE COMPUTAT IONS IN VIEW OF THE NECESSARY CERTIFICATES, COPIES OF E-MAILS AND CORRESPONDENCE COMING FROM THE LATTERS SIDE. WE THUS OBSERVE THAT THE ASSESSEES INSTANT FIRST GRIEVANCE DESERVES TO BE EXAMINED IN LIGHT OF SECTION 40(A)(IA) SECOND PROVISO ; INSERTED VIDE FINANCE ACT, 2012 W.E.F.01-04-2013, THAT THE IMPUG NED DISALLOWANCE WOULD NOT APPLY IN CASE OF AN NOT HELD AS THE ASSESSEE IN DEFAULT AS PER SECTION 201(1) 1 ST PROVISO OF THE ACT. HON'BLE DELHI HIGH COURTS DECISION IN CIT VS. AANSA L LANDMARK TOWNSHIPS (P) LTD. (2015) [377 ITR 635] (DE LHI) HOLDS THE ABOVE PROVISO AS A CURATIVE ONE HAVING RETR OSPECTIVE EFFECT. WE THUS RESTORE THE INSTANT FIRST COMMON ISSUE BA CK TO THE ASSESSING OFFICER TO BE EXAMINED IN LIGHT OF SECTI ON 40(A)(IA) SAID PROVISO IN CONSEQUENTIAL PROCEEDINGS AS PER LAW. THE ASSESSEES FORMER APPEAL ITA NO.824/HYD/2018 RA ISING THE SOLE ISSUE IS TREATED AS ALLOWED FOR STATISTICAL PUR POSES. THE ASSESSEES FIRST SUBSTANTIVE GROUND IN LATTER APPEA L ITA NO.825/HYD/2018 FOLLOWS THE SUIT. ITA NOS.824 & 825/HYD/2018 :- 3 -: 5. NEXT COMES THE SECOND SUBSTANTIVE GROUND IN AY.201 3- 14 APPEAL ITA NO.825/HYD/2018 THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS IN TREATING THE UN- SECURED LOANS OF RS.85,72,904/- AS UN-EXPLAINED CAS H CREDITS. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFECT READS A S UNDER: 8.3 THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CAR EFULLY CONSIDERED. THE CONTENTION OF THE APPELLANT THAT TH ERE ARE 22 PARTIES WHO ARE GIVEN UNSECURED LOANS TO THE APPELLANT COMP ANY. AFTER VERIFICATION, LACUNAS WERE FOUND, THEY ARE AS FOLLO WS: A) IN ALL THE CASES, INTEREST WAS PAID AND THE TDS WAS DEDUCTED. NO DETAILS OF TDS REMITTANCE / CHALLANS WERE SUBMIT TED BEFORE ME. B) CONFIRMATIONS OF THE ACCOUNTS ARE STEREO TYPE AND N OT SUPPORTED BY ANY DOCUMENTATION. C) IT IS NOT KNOWN WHETHER THE PARTIES ARE INCOME TAX ASSESSEE. HAVING PAN NUMBER DOES NOT CONFIRM FILING OF INCOME TAX RETURN. NONE OF THE PARTIES HAVE SUBMITTED COPY OF PAN NOR AADHAR CARD. D) NO BANK CONFIRMATION WAS SUBMITTED TO SHOW THE INFL OW AND OUTFLOW OF THE FUNDS IN THE LOAN ACCOUNTS. ONLY A V OUCHER ENTRY IN THE LEDGER ACCOUNT WAS SUBMITTED. E) APPELLANT DID NOT SUBMIT ANY DETAILS REGARDING THE CREDIBILITY OF THE PARTIES TO GIVE SUCH HUGE LOANS TO THE APPELLAN T. APPELLANT HAS NOT GIVEN ANY EXPLANATION REGARDING RELATION TO THESE PARTIES OR GUARANTEE GIVEN TO THEM WHILE TAKING LOA NS. IN BACKGROUND TO THIS, THE SUBMISSIONS OF THE APPEL LANT IS NOT ACCEPTED. THE ADDITION MADE BY THE ASSESSING OFFICE R IS UPHELD. 6. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE TH AT THE ASSESSEES CORRESPONDING PAPER BOOK PAGES 12 TO 3 1 HAS INTER ALIA PLACED ON RECORD THE STATEMENT OF ALL THESE UN-SECURED LOANS AND LEDGER COPIES WITH PAN/ADDRESS DETAILS WHICH REQUIRE A DETAILED FACTUAL VERIFICATION IN OUR CONSIDERED OPINION. MORE SO WHEN THE ASSESSING OFFICER IS ALSO RE-EXAMINING THE FIRST AND FOREMOST ISSUE OF SECTION 4 0(A)(IA) ITA NOS.824 & 825/HYD/2018 :- 4 -: DISALLOWANCE WE THEREFORE ADOPT THE VERY COURSE OF AC TION FOR THE ASSESSEES INSTANT SECOND GRIEVANCE AS WELL. THE ASSESSEE IS DIRECTED TO FILE ALL THE NECESSARY CORRESPONDING D ETAILS BEFORE THE ASSESSING OFFICER IN CONSEQUENTIAL PROCEEDINGS TO BE SUBJECTED TO NECESSARY FACTUAL VERIFICATION WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 7. LASTLY COMES DISALLOWANCE OF CAR HIRE CHARGES OF RS.6,49,683/- @10% OF THE TOTAL CLAIM OF RS.64,96,383/ -. THE REVENUES ONLY CASE IS THAT THE ASSESSEE COULD NOT PRO VE THE IMPUGNED CAR HIRE CHARGES AS INCURRED; WHOLLY AND E XCLUSIVELY IN HER DAY-TO-DAY BUSINESS. THE FACT ALSO REMAINS TH AT THE ASSESSEE HAD PRIMA-FACIE FAILED TO PROVE THE SAME BY TREATING ALL THE COGENT SUPPORTIVE EVIDENCE. FACED WITH THIS SITUATION, WE DIRECT THE ASSESSING OF FICER TO RESTRICT THE IMPUGNED 10% DISALLOWANCE TO 4% WITH A R IDER THAT THE SAME SHALL NOT BE TAKEN AS A PRECEDENT IN ANY OTH ER CASE. THE ASSESSEES LATTER APPEAL ITA NO.825/HYD/2 018 IS PARTLY ACCEPTED. 8. TO SUM-UP, THE ASSESSEES FORMER APPEAL ITA NO.824/HYD/2018 IS ALLOWED FOR STATISTICAL PURPOSES W HEREAS HER LATTER APPEAL ITA NO.825/HYD/2018 IS PARTLY ALLOWE D IN ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 29-04-2021 TNMM ITA NOS.824 & 825/HYD/2018 :- 5 -: COPY TO : 1.SMT.SHASHIKALA RAMKUMAR, 1-2-43, GAGANMAHAL ROAD, DOMALGUDA, HYDERABAD. 2.THE ASST.COMMISSIONER OF INCOME TAX, CIRCLE-4(1), HYDERABAD. 3.CIT(APPEALS)-1, HYDERABAD. 4.PR.CIT-1, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.