Sunyna Kumari Gupta, Patna V. Pr. CIT-2, Patna

ITA 91/PAT/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0625 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 08-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: INDERJI T SINGH
• Assessee Lawyers: K N PRASAD
• Keywords: Revision of order; Principle of natural justice; Prejudicial to interest; Set aside
• Section: 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA , . . , BEFORE SHRI CHANDRA MOHAN GARG, J M & SHRI L .P. SAHU, AM ./ ITA NO. 91 / PAT /201 7 ( / ASSESSMENT YEAR : 20 12 - 20 13 ) SUNYNA KUMARI GUPTA, PROP: - M/S SONAL DRUG AGENCY ROAD NO.1, LOHANIPUR, RAJENDRA NAGAR, PATNA - 800016 VS. 1. PR. CIT - 2, PATNA 2. ACIT, CIRCLE - 4, PATNA ./ PAN NO. : A DDPG 6521 C ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : S HRI K.N.PRASAD , ADV OCATE /REVENUE BY : SHRI INDERJIT SINGH , CIT - DR / DATE OF HEARING : 17 /0 9 /2019 / DATE OF PRONOUNCEMENT : 17 /0 9 /2019 / O R D E R PER BENCH : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY LEARNED PR. CIT - 2 , PATNA , DATED 30.03.2017 FOR THE ASSESSMENT Y EAR 20 12 - 20 13 ON THE FOLLOWING GROUNDS OF APPEAL : - 1. FOR THAT THE GROUNDS OF APPEAL HERETO ARE WITHOUT PREJUDICE TO EACH OTHER. 2. FOR THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE THE ORDER PASSED U/S 263 BY THE ID. PR. CO MMISSIONER OF INCOME TAX - 2, PATNA (HERE - IN - AFTER KNOWN AS THE ID PR. CIT) IS ARBITRARY AND BAD IN LAW IN RELATION TO THE ISSUES RAISED AND ADJUDICATED THEREIN. 3. FOR THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LEARNED PR. CIT WAS NOT JUSTIFIED IN INITIATING PROCEEDING U/S 263 OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS THAT THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER, CIRCLE - 4, PATNA (HEREINAFTER ITA NO . 91 / PAT /201 7 2 KNOWN AS THE ID. A.O) WA S NEITHER ERRONEOUS NOR PREJUDICIAL TO INTERESTS OF THE REVENUE AND THEREFORE, THE PROCEEDINGS U/S 263 ARE BAD IN LAW. 4. FOR THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE ID. PR. CIT WAS NOT JUSTIFIED RATHER GROSSLY ERRED IN RESORTING THE PROCE EDINGS U/S 263 WHEN ALL THE MATERIAL FACTS AND EVIDENCES WERE ON RECORD AND THE LEARNED' ASSESSING OFFICER HAS THOROUGHLY EXAMINED AND VERIFIED ALL THE MATERIAL FACTS. 5. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE ID. PR. CIT 2, PATNA IS ALSO UNSTABLE IN LAW BEING VIOLATIVE OF THE SETTLED PRINCIPLES OF NATURAL JUSTICE. 6. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. PR. CIT - 2, PATNA HAS ERRED IN CONSIDERING IRRELEVANT MATERIALS, WHICH HAS VITIATED THE ORDER OF U/S 263. 7. FOR THAT WHEN THE ORDER OF THE ASSESSING OFFICER HAS MERGED WITH THE ORDER OF THE ID. CIT(A) - 2, PATNA AND AS SUCH ANY ORDER PASSED U/S 263 IS VIOLATIVE AND VITIATED IN LAW. 8. FOR THAT THE IMPUGNED ORDER U/S.263 IS MISCONCEIVED AND ARBITRARY IN NATURE. 9. FOR THAT THE APPELLANT RESERVES HER RIG HT TO FILE DETAILED SUBMISSION AT THE TIME OF HEARING . 10. FOR THAT THE APPELLANT CRAVES LEAVE TO URGE, ADD AND OR ALTER ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING. 2 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM TRADING OF MEDICINE AND MEDICAL EQUIPMENT . THE ASSESSEE FILED RETURN OF INCOME ON 22.0.2013 FOR A.Y.201 2 - 13 SHOWING TOTAL INCOME OF RS.10,86,610/ - . T HEREAFTER THE CASE WAS SELECTED FOR SCRUTINY AND STATUTORY NOTICES WERE ALSO ISSUED TO THE ASSESSEE. THEREAFTER THE ASSESSING OFFICER COMPLETED THE ASSESSMENT MAKING ADDITIONS ON ACCOUNT OF COMMISSION ON BROKERAGE, MACHINE AND MAINTENANCE CHARGES AND ASSESSED TOTAL INCO ME OF THE ASSESSEE AT RS.46,44, 160/ - . ITA NO . 91 / PAT /201 7 3 3. SUBSEQUENTLY, THE PR. CIT INVOKING PROVISIONS OF SECTION 263 OF THE ACT FOUND THAT THE QUESTIONNAIRE MENTIONED IN THE NOTICE, THE ASSESSING OFFICER HAS NOT EXAMINED/VERIFIED THOROUGHLY, THEREFORE, THE ASSESSME NT ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. ACCORDINGLY, THE PR. CIT DIRECTED THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT . 4. AGGRIEVED FROM THE ORDER OF PR. CIT , THE ASSESSEE IS NOW IN APPEAL BEFORE THE INCOME T A X APPELLATE TRIBUNAL. 5. LEARNED . AR SUBMITTED THAT ALL THE MATERIAL FACTS AND EVIDENCES WERE ON RECORD AND THE LEARNED ASSESSING OFFICER HAS THOROUGHLY EXAMINED AND VERIFIED ALL THE MATERIAL FACTS , THEREFORE, THE ASSESSMENT F RAMED BY THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE . HENCE, LD. AR PRAYED FOR ALLOWING THE APPEAL OF THE ASSESSEE. 6 . ON THE OTHER HAND, LD . DR RELIED ON THE ORDER OF PR. CIT AND SUBMITTED THAT THE ASSESSING OFFICER HAS FAILED TO CARRY OUT NECESSARY ENQUIRIES/VERIFICATION REGARDING WHOLE AMOUNT(S) DEBITED AS EXPENSES ON THE ACCOUNT OF COMMISSION & BROKERAGE AND MACHINE MAINTENANCE IN THE LIGHT OF THE PROVISIONS OF SECTION 40(A)(IA ) OF THE ACT, THEREFORE, T HE PR. CIT HAS RIG HTLY SET ASIDE THE ASSESSMENT ORDER. 7. WE HAVE HEARD THE RIVAL SUBMISSION OF BOTH THE PARTIES AND PERUSED THE ENTIRE MATERIAL AVAILABLE ON RECORD AND THE ORDERS OF BOTH ITA NO . 91 / PAT /201 7 4 THE AUTHORITIES BELOW. ON PERUSAL OF THE ASSESSMENT ORDER WE FIND TH AT DURING THE ASSESSMENT PROCEEDINGS AS REQUIR ED BY THE ASSESSING OFFICER , THE ASSESSEE PRODUCED THE D ETAILS OF BALANC E SHEET, PROFIT AND LOSS ACCOUNT FOR A.YS. 2011 - 12, 2012 - 13 & 2013 - 14, TAX AUDIT REPORT FOR A.Y.2012 - 13, COMPUTATION OF INCOME, PHOTOCOPY OF SALES TAX RETURN , BANK STATEMENT COPY OF BANK OF INDIA, BANK OF INDIA LOAN ACCOUNT, ALLAHABAD BANK AND ING VAISHYA BANK STATEMENT, DETAILS OF UNS ECURED LOAN, DETAILS OF SUNDRY CREDITORS A SUM EXCEEDING RS.1 LAKHS AND ABOVE. ALL THE ABOVE DOCUMENTS WERE PLACED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER HAS VERIFIED AND EXAMINED THE SAME. ON FURTHER PERUSAL OF THE ASSESSMENT ORDER, WE ALSO FIND THAT THE ASSESSING OFFICER HAS DULY VERIFIED ALL THE DOCUMENTS AND EXAMINED THE SAME . W HEN THE ASSESSING OFFICER DID NOT FIND ANY CONVINCIBLE EXPLANATION OF THE ASSESSEE WITH REGARD TO THE ABOVE CLAIMS AND THE DOCUMEN TS WHICH WERE NOT VERIFIABLE BY HIM, HE MADE THE ADDITIONS. THEREFORE, IT CANNOT BE INFERRED THAT THE ASSESSING OFFICER HAS NOT MADE ANY ENQUIRY OR ANY VERIFICATION REGARDING THE CLAIMS OF THE ASSESSEE. HENCE, WE DO NOT FIND ANY MERIT IN THE IMPUGNED ORDER PASSED BY THE PR. CIT SETTING ASIDE THE ASSESSMENT ORDER HOLDING THAT THE ASSESSMENT ORDER PASSED BY THE ASSES SING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE . ACCORDINGLY, WE QUASH THE ITA NO . 91 / PAT /201 7 5 PROCEEDINGS INITIATE D BY PR. CIT U/S.263 OF THE ACT AND ALLOW THE GROUNDS OF APPEAL OF THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 17 /0 9 /201 9 . SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /PATNA ; DATED 17 / 0 9 /201 9 PRAKASH KUMAR MISHRA , S R.P.S. (ON TOUR) / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( PRIVATE SECRETARY ) , / ITAT, PATNA 1. / THE APPELLANT - . 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, PATNA 6. / GUARD FILE. //TRUE COPY//