The Income tax Officer, Amritsar. V. Sh. Janak Raj Mahajan, Amritsar.

ITA 87/ASR/2012

• Counselvise Citation: 8720914 RSA 2012
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-10-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 07-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R JAIN
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.87(ASR)/2012 ASSESSMENT YEAR:2000-01 PAN :AASPMK2919C INCOME TAX OFFICER, VS. SH. JANAK RAJ MAHAJAN, WARD 5(2), AMRITSAR. AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. K.R. JAIN, ADVOCATE DATE OF HEARING:16/10/2012 DATE OF PRONOUNCEMENT:19/10/2012 ORDER PER BENCH ; THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER O F THE CIT(A), AMRITSAR, DATED 29.12.2011 FOR THE ASSESSMENT YEAR 2000-01. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.20, 99,887/- IN HIS ORDER NO.394/07-08 DATED 19/5/2011. APPEAL AGAI NST THIS ORDER HAS BEEN FILED BEFORE THE HONBLE ITAT VIDE 2 382-85 DATED 21.7.2011. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.459 760/- FOR ITA NO.87(ASR)/2012 2 MAKING INVESTMENT IN DELETING THE ADDITION OF RS.45 9760/- FOR MAKING INVESTMENT IN THE PURCHASE OF OVERLOADED QUA NTITY OF COAL OUTSIDE THE BOOKS. 3. WHILE DELETING THE ADDITION THE LD. CIT(A) HAS N OT APPRECIATED THE FACTS BROUGHT ON RECORD BY THE A.O. 4. THE LD. CIT(A) HAS NOT APPRECIATED THE FACTS THA T THE ASSESSEE HAS CHANGED HIS BOOKS OF ACCOUNTS WHEREAS ASSESSEE HAS ADMITTED THAT THE AMOUNT OF PENALTY HAS BEEN PAID B Y HIM. BUT LATER ON THE ASSESSEE PREPARED PENALTY ACCOUNT AND TRANSFERRED TO SUPPLIERS ACCOUNT. 5. APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OR MO RE GROUNDS OF APPEAL. 3. AS REGARDS GROUND NO.1, THE SAME HAS ALREADY BEE N ADJUDICATED VIDE OUR ORDER IN ITA NO.424(ASR)/2011 DATED 07.06.2012 FOR THE ASSESSMENT YEAR 2000-01 AND THEREFORE, THE SAID GROUND TAKEN B Y THE REVENUE IS INFRUCTUOUS. 4. AS REGARDS GROUNDS NO. 2 TO 4, THE BRIEF FACTS A RE THAT THE ASSESSEE DERIVES INCOME FROM PURCHASE OF COAL FROM M/S. ASSA M COAL TRADERS, GAUHATI. THE USUAL LINE OF BUSINESS IS THAT FOR OBT AINING ORDERS FROM THE OPEN MARKET, RAILWAY WAGON IS BOOKED AND THE COAL IS DISTRIBUTED AT THE MARKET PRICE. ON RECEIPT OF INFORMATION FROM DDI (W ING), AMRITSAR, THAT THE RAILWAY AUTHORITIES HAVE IMPOSED A PENALTY OF R S. 20 LACS ON THE ASSESSEE ON ACCOUNT OF RELEASE OF OVER-LOADED WAGO N OF COAL. IT WAS FOUND THAT COAL REPRESENTING OVER-LOAD OF COAL SUPPLIED 3597 QTLS. OF COAL VALUING RS.5,23,723/- BY THE SELLER PARTY OF ASSAM VIDE BIL L NO.290 DATED 13.2.2000 IS OVER AND OVER THE ORIGINAL BILL INCURRING THERE ON RAILWAY PENALTY OF ITA NO.87(ASR)/2012 3 RS.20,99,887/-. BEFORE THE AO, THE ASSESSEE SUBMIT TED THE EXPLANATION WHICH WAS NOT FOUND SATISFACTORY AND THE AO ACCORDI NGLY MADE AN ADDITION OF RS.4,59,760/-. 5. THE LD. CIT(A) AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE DELETED THE ADDITION VIDE PARA 6 OF HIS ORDER. 6. THE LD. DR, SH. TARSEM LAL, ARGUED THAT THE ASS ESSEE SUBMITTED THE EXPLANATION BEFORE THE LD. CIT(A) THAT THE PROVISIO NAL BILL WAS ISSUED BY THE SUPPLIER ON THE SPOT ON HIS VISIT TO AMRITSAR FROM THE PROVISIONAL BILL BOOK, WHICH WAS AVAILABLE WITH THE SAID SUPPLIER AT THAT TIME. THE LD. DR ARGUED THAT THE EXPLANATION WAS NOT TAKEN BEFORE THE AO AN D THEREFORE, THE LD. CIT(A) IS NOT JUSTIFIED IN ACCEPTING THIS EXPLANATI ON, WHICH IS A FRESH EXPLANATION BEFORE THE LD. CIT(A). 7. THE LD. COUNSEL FOR THE ASSESSEE, MR. K.R. JAIN, INVITED OUR ATTENTION THAT THE SAID EXPLANATION WAS BEFORE THE AO, WHICH IS PART OF OUR SUBMISSION, WHICH IS REPRODUCED IN THE ASSESSMENT ORDER ITSELF AND THEREFORE, IT IS NOT CORRECT TO SAY THAT FRESH EXPLANATION HAS BEEN SUBM ITTED BEFORE THE LD. CIT(A). THE BOOKS OF ACCOUNT OF THE ASSESSEE ARE AU DITED AND NO DEFECT IN THE SAME HAS BEEN POINTED OUT BY THE AUDITORS. QUA NTITY RECEIVED ON THE OVER-LOADING OF COAL AGAINST BILL NO.290 DATED 13.0 2.2000 HAS BEEN ENTERED IN THE STOCK REGISTER AS WELL AS IN THE FINANCIAL B OOKS OF ACCOUNT. THE BOOKS ITA NO.87(ASR)/2012 4 OF ACCOUNT HAVE BEEN IMPOUNDED BY THE AO DURING THE ASSESSMENT PROCEEDINGS, IS A MATTER OF FACT, WHICH IN FACT, AR E STILL LYING WITH THE AO AND HAVE NOT BEEN RELEASED. THEREFORE, THE DEPARTMENT C ANNOT DENY THAT THE ASSESSEE HAS NOT ACCOUNTED FOR THE SAID PURCHASE RE CEIVED ON ACCOUNT OF OVER-LOADING. AS REGARDS THE VERIFICATION FROM THE SUPPLIER, THE SAME WAS NOT ADDRESSED PROPERLY AND THEREFORE, LETTER UNDER SECT ION 133(6) OF THE ACT, WAS NOT SERVED. NO ADVERSE INFERENCE CAN BE DRAWN FROM THE SAME. THE REMAND REPORT HAS BEEN PREPARED WITHOUT CONSULTING BOOKS O F ACCOUNT AND WITHOUT TAKING INTO ACCOUNT PURCHASE ACCOUNT WHERE THE COA L RECEIVED ON ACCOUNT OF OVER-LOADING HAS BEEN ACCOUNTED FOR IN THE PURCHASE ACCOUNT, IS EVIDENT FROM THE BOOKS OF ACCOUNT IMPOUNDED BY THE A.O. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NOTHING ON RECORD THAT THE ASSESSEE HAS SU BMITTED ANY FRESH EXPLANATION BEFORE THE LD. CIT(A) AND THEREFORE, TH E ARGUMENTS MADE BY THE LD. DR APPEARING ON BEHALF OF THE REVENUE ARE OUT R IGHTLY REJECTED. THE EXPLANATION GIVEN BY THE ASSESSEE TO THE SAID BILL NO.290 DATED 13.2.2000 IS AVAILABLE IN THE ORDER OF THE AO AT DIFFERENT PAGES OF THE SAID ORDER. THERE IS NOTHING ON RECORD THAT THERE WAS NO STOCK TALLY OF THE QUANTITY ENTERED BY THE ASSESSEE INCLUDING THE PURCHASE DECLARED ON ACCOUNT OF OVER-LOADING. ALSO THE ASSESSEE, HAD SUBMITTED THE BOOKS OF ACCOUNT W HERE FINANCIAL ENTRIES ITA NO.87(ASR)/2012 5 HAVE ALSO BEEN MADE. THEREFORE, THE AO IS NOT JUSTI FIED IN COMING TO THE CONCLUSION THAT THE ASSESSEE HAD MADE PURCHASES OUT SIDE THE BOOKS OF ACCOUNT. IN THE FACTS AND CIRCUMSTANCES OF THE CASE , WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY DELETE D THE ADDITION MADE BY THE A.O. THUS, GROUNDS NO. 2 TO 4 OF THE APPEAL OF THE REVENUE ARE DISMISSED. 9. GROUND NO.5 IS GENERAL IN NATURE AND THEREFORE, DOES NOT REQUIRE ANY ADJUDICATION AND THE SAME IS DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IN ITA NO.87(ASR)/2012 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH OCTOBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. JANAK RAJ MAHAJAN, AMRITSAR. 2. THE ITO WARD 5(2), ASR. 3. THE CIT(A), ASR. 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.