Shri Hemantsinh B.Gohil, Bhavnagar V. The Income tax Officer,Ward-2(3), Bhavnagar

ITA 866/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9168 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 09-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 24-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Corroborative evidences

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA.NO.866/AHD/2014 / ASSTT. YEAR: 2008-2009 SHRI HEMANTSINH B. GOHIL, BHARGAV TRANSPORT, BESIDE S.B.S., VILLAGE, BUDHEL, TAL. GHOGHA, DIST. BHAVNAGAR- 364001 PAN : AIWPG 9974 B VS. ITO, WARD - 2(3) BHAVNAGAR. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI TUSHAR P. HEMANI, A.R REVENUE BY : SHRI JAMES KURIAN, SR.DR / DATE OF HEARING : 09/02/2017 / DATE OF PRONOUNCEMENT: 16/02/2017 +,/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGA INST THE ORDER OF LD.CIT(A)-XX, AHMEDABAD DATED 06.01.2014 PASSED FOR ASSTT.YEAR 2008-09. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS PLEADED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.1,85,549/- WHICH WAS ADDED BY THE ASSESSING OFFICER ON THE GROUND THAT T HERE IS A MISMATCH OF TRANSPORT INCOME AS PER THE PROFIT AND LOSS ACCOUNT S VISA-VIS DETAILS AVAILABLE IN THE TDS RETURN. ITA NO.866/AHD/2014 ASSTT. YEAR 2008-09 2 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE WA S ENGAGED IN THE BUSINESS OF TRANSPORTATION AND RUNNING A PROPRIETORSHIP CONC ERN IN THE NAME AND STYLE OF BHARGAV TRANSPORT. HE HAS FILED HIS RETURN OF IN COME ON 02.11.2007 DECLARING TOTAL INCOME AT RS.1,93,882/- THE CASE O F THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER SECTION 14 3(2) WAS ISSUED AND SERVED UPON THE ASSESSEE. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED TO THE ASSESSING OFFICER THAT THE ASSESSEE HAS DISCLOSED A SUM OF RS .1,75,61,633/- IN THE INCOME STATEMENT, WHEREAS IN THE BOOKS, HE HAS DISCLOSED A SUM OF RS.1,73,61,633/-. HENCE, THERE WAS A DIFFERENCE OF RS.1,85,549/- SIMI LARLY THE ASSESSING OFFICER HAS NOTICED DISCREPANCIES IN THE DETAILS AVAILABLE IN THE FORM NO.26AS. HE MADE AN ADDITIONS OF THIS AMOUNT WHICH WAS CONFIRME D BY THE LD.CIT(A). LD. COUNSEL, FOR THE ASSESSEE CONTENDED THAT THIS S UM OF RS.1,85,549/- RELATES TO SUBSEQUENT YEAR AND IT WAS OFFERED FOR TAXATION . THE ASSESSEE HAS NOT CLAIMED TDS CREDITS REPRESENTING THIS TRANSPORT REC EIPT. THE LD. COUNSEL, FOR THE ASSESSEE SUBMITTED THAT THIS CAN BE SET ASIDE T O THE FILE OF THE ASSESSING OFFICER FOR RE-VERIFICATION AND RE-ADJUDICATION. 4. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE STAND OF THE ASSESSEE IS THAT THE SUM OF RS.1,85,549/- WAS NOT CREDITED TO THE PROFIT AND LOSS ACCOUNTS TH OUGH ITS A TRANSPORT RECEIPT BUT THIS AMOUNT PERTAINS TO SUBSEQUENT YEARS AND IT WAS CREDITED IN THE SUBSEQUENT YEAR AND OFFERED FOR TAX. CONSIDERING TH E STAND OF THE ASSESSEE WE ARE OF THE VIEW THAT ENDS OF JUSTICE WOULD MEET, I F WE SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR RE-VERIFICATI ON. THE SAME AMOUNT SHOULD NOT SUFFER TAX TWICE I.E IN THIS YEAR AND IN SUBSEQ UENT YEAR ALSO. IN CASE, IT REVEALS THAT THIS AMOUNT HAS SUFFERED TAX IN THE SU BSEQUENT YEAR, THAN NO ITA NO.866/AHD/2014 ASSTT. YEAR 2008-09 3 ADDITION BE MADE IN THIS YEAR, OTHERWISE, THE LD. A SSESSING OFFICER WILL BE AT LIBERTY TO TAKE THE OPINION IN ACCORDANCE WITH LAW. 5. IN GROUND NO.2 AND 3 THE ASSESSEE IS IMPUGNING THE CONFIRMATION OF ADHOC DIS ALLOWANCE OUT OF MOBILE EXPENDITURE AND O THER MISC. EXPENDITURE. IT EMERGES OUT FROM THE RECORDS THAT THE ASSESSEE HAS INCURRED SUM OF RS.1,51,540/- ON MOBILES. IN THE ABSENCE OF DETAILS THE LD. ASSESSING OFFICER DISALLOWED 10% OF THE TOTAL EXPENDITURE. SIMILARLY OUT OF OFFICE EXPENDITURE A SUM OF RS.5,000/- HAS BEEN DISALLOWED BY THE ASSES SING OFFICER ON ADHOC BASIS. AFTER CONSIDERING THE FINDINGS OF LD. REVENU E AUTHORITIES WE DO NOT SEE ANY REASONS TO INTERFERE IN THE FINDINGS OF CIT (A) ON THIS ISSUE, BECAUSE THE ASSESSEE FAILED TO GIVE COMPLETE DETAILS WITH S UPPORTING VOUCHERS FOR THESE EXPENDITURES. HENCE GROUND NO.2 AND 3 ARE REJECTED. 6. IN GROUND NO.4,5 & 6, THE ASSESSEE HAS AGITATED CONFIRMATION OF AN ADDITIONS OF RS.12,32,000/- BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS RECEIVED ADVANCES FROM CUSTOMERS TO THE TUNE OF RS. 39,60,753/-, OUT OF THIS AMOUNT, SUM OF RS.27,28,753/- WERE RECEIVED IN EARL IER YEAR AND BALANCE OF RS.12,32,000/- HAS BEEN RECEIVED IN THIS YEAR. THE LD. ASSESSING OFFICER HAS MADE AN ADDITIONS OF RS.27,28,753/- IN A.Y. 2007-08 AND REMAINING AMOUNT IN THIS YEAR. THE LD. COUNSEL, FOR THE ASSESSEE AT THE OUTSET SUBMITTED THAT THE ISSUE WITH REGARDS TO THE AMOUNT RECEIVED IN A.Y. 2007-08 HAS BEEN REMITTED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION BY THE ITAT IN ITA NO.3398/AHD/2010. HE PLACED ON RECORD COPIES OF TR IBUNALS ORDER. 7. ON THE OTHER HAND THE LD.DR RELIED UPON THE ORDE R OF THE ASSESSING OFFICER. ITA NO.866/AHD/2014 ASSTT. YEAR 2008-09 4 8. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD TH AT ON VERIFICATION OF AUDIT REPORTS AND SCHEDULE 4, ADVANCES FROM THE CUSTOMERS HAVE BEEN NOTICED AT RS.39,60,000/-. OUT OF THIS TOTAL AMOUNT A SUM OF R S.25,18,753 WAS CONSIDERED IN A.Y. 2007-08. THE STAND OF THE ASSESS EE WAS THAT ADVANCES OF RS.27,28,753/- WERE RECEIVED BY HIM IN A.Y. 2007-08 AND BALANCE OF RS.12,32,000/- IN THE PRESENT ASSESSMENT YEAR . THE ADDITIONS HAVE BEEN MADE BY THE ASSESSING OFFICER IN BOTH THE YEARS BECAUSE THE ASSESSEE FAILED TO GIVE CONFIRMATION AND OTHER SUPPORTING EVIDENCES. IN A.Y . 2007-08 WHEN MATTER TRAVELLED TO THE TRIBUNAL, THE ISSUE WAS SET ASIDE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. THE SIMPLE REASON WAS THAT IN A.Y. 20 07-08 THE ASSESSEE DID NOT PRESS THIS GROUND OF APPEAL BEFORE THE CIT(A), BUT SOMEHOW IT MUST HAVE BEEN AGITATED IN THE APPEAL BEFORE THE ITAT. IN THE PRESENT YEAR THE ASSESSEE HAS SUBMITTED COPIES OF AGREEMENT OF SALE OF TRUCKS , IN LIEU OF SALE, HE HAS RECEIVED ADVANCES FROM THREE PARTIES. THESE EVIDENC ES COULD NOT BE FILED BEFORE THE ASSESSING OFFICER RATHER THESE ARE SOUGH T TO BE FILED BY WAY OF ADDITIONAL EVIDENCES. THE LD.CIT(A) REJECTED THE AD MISSION OF ADDITIONAL EVIDENCES AND CONFIRMED THE ADDITIONS. IN OUR OPINI ON ONCE PART OF ADDITION MADE IN EARLIER YEAR WAS SET ASIDE TO THE FILE OF T HE CIT(A) FOR RE-ADJUDICATION THAN FOR ADVANCING SUBSTANTIAL JUSTICE AND JUST DI SPOSAL OF THE APPEAL, THE LD. FIST APPELLANT AUTHORITY OUGHT TO HAVE TAKEN THE CO NFIRMATION AND OTHER EVIDENCES SOUGHT TO BE PRODUCED BY WAY OF ADDITIONA L EVIDENCES. 9. TAKING INTO CONSIDERATION ALL THESE FACTS, WE AL LOW THIS GROUND OF APPEAL FOR STATISTICAL PURPOSE, BECAUSE THE OUTCOME OF A.Y. 2007-08 HAS BEARING ON THE DECISION OF THE ISSUE AND IT IS NECE SSARY TO ASCERTAIN THAT OUTCOME. THE FINDINGS OF THE CIT(A) ON THIS ISSUE IS SET ASIDE AND THIS ISSUE IS RESTORE TO THE FILE OF THE LD. FIRST APPELLANT AUTHORITY FOR RE-ADJUDICATION. ITA NO.866/AHD/2014 ASSTT. YEAR 2008-09 5 THE LD. FIRST APPELLANT AUTHORITY SHALL ADMIT THE A DDITIONAL EVIDENCES SOUGHT TO BE PRODUCED BY THE ASSESSEE AND THEREAFTER CALL FOR A REMAND REPORT FROM THE ASSESSING OFFICER FOR ADJUDICATING THIS GROUND OF A PPEAL. 10. IN VIEW OF ABOVE DISCUSSIONS WE PARTLY ALLOW TH E APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 16 TH FEBRUARY, 2017 AT AHMEDABAD. SD/- SD/- ( MANISH BORAD ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER TRUE COPY AHMEDABAD; DATED 16/02/2017 +, - ./01 2+1/ / COPY OF THE ORDER FORWARDED TO : +, 3 4 / BY ORDER, 5/4 67 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $ %& '' , / DR, ITAT, 6. &)* + / GUARD FILE.