M/s. Bhopal Garage, Itarsi V. ITO-1, Itarsi

ITA 915/Ind/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4938 (ITAT-INDORE)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 16-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V J BORICHA
• Assessee Lawyers: N D PATVA ARS
• Keywords: Additional evidence
• Section: 143(3); 250

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.915/IND/2019 ASSESSMENT YEAR:2007-08 M/S. BHOPAL GARAGE KHEDA, INDUSTRIAL AREA, ITARSI, HOSHANGABAD / VS. ITO - 1 ITARSI ( APPELLANT ) ( REVENUE ) P.A. NO. AADFB8960H APPELLANT BY SHRI ASHISH GOYAL & N.D. PATVA , A RS REVENUE BY SHRI V. J. BORICHA SR. DR DATE OF HEARING: 22.09.2020 DATE OF PRONOUNCEMENT: 30.09.2020 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)(IN SHORT LD. CIT(A)-3, BHOPAL, DATED 30.07.2017 PERTAINING TO ASSESSMENT Y EAR 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L: 1. THE EX-PARTE ORDER U/S 250 PASSED BY THE HON'BL E BHOPAL GARAGE KHEDA /ITANO.915/2019 2 COMMISSIONER OF INCOME TAX(A) IS ILLEGAL, INVALID A ND UNTENABLE- IN-LAW. THE SAME BE KINDLY QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE HON'BLE CIT(A) WAS NOT JUSTIFIED IN PASSING THE EX-PARTE OR DER U/S 250 OF THE IT ACT WITHOUT PROVIDING ADEQUATE OPPORTUNITY T O THE APPELLANT. THE ORDER PASSED BE KINDLY CANCELLED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE HON'BLE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THAT THERE WE RE THE EXCESS SALE OF RS.13,00,750/- AND IN CONFIRMING THE ADDITI ON OF RS.13,00,750/- TOWARDS THE SAME. 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER AND/ OR TO MODIFY THE GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEAR ING. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED AND THE ASSESSMENT U/ S 143(3) R.W.S 147 OF THE INCOME TAX ACT 1961(HEREINAF TER REFERRED AS THE ACT) WAS PASSED VIDE ORDER DATED 20.12.2011. THEREBY, THE ASSESSING OFFICER MADE AN ADDITION OF RS.13,00,750/- ON THE GROUND THAT THE ASSE SSEE HAS DISCLOSED PURCHASE OF RS.9,72,19,568/- WHEREAS, AS PER THE ASSESSMENT PASSED BY COMMERCIAL TAX DEPARTMENT WAS DISCLOSED THE SALE OF RS.9,85,20,318/-. HENCE, TH E DIFFERENCE OF RS. 13,00,750/- WAS ADDED INTO THE RET URN OF INCOME. BHOPAL GARAGE KHEDA /ITANO.915/2019 3 3. AGGRIEVED AGAINST THIS THE ASSESSEE PREFERRED AN AP PEAL BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSI ON SUSTAINED THE ADDITIONS. GROUND NO.1 & 2 OF THE ASSESSEES APPEAL ARE IN RESPECT OF THE IMPUGNED ORDER PASSED EX-PARTE AND NOT PROVIDING THE SUFFICIENT OPPORTUNITY. DURING THE CO URSE OF HEARING NO SUBMISSIONS WERE MADE IN RESPECT OF THESE GROUNDS. HOWEVER, WE FIND THAT AS PER THE IMPUGNED OR DER THE AUTHORIZED REPRESENTATIVES OF THE ASSESSEE, NAMELY SHRI ROHIT PATHAK, ADVOCATE & SHRI VIRENDRA VEDI, CA ON BEHALF OF THE ASSESSEE AND ALSO FILED ADDITIONAL EVIDENCES/WRITTEN SUBMISSION. HENCE, THE GROUNDS RAI SED BY THE ASSESSEE ARE DEVOID OF ANY MERIT. THUS, GROUND NO.1& 2 OF THE ASSESSEES APPEAL ARE DISMISSED. 4. GROUND NO.3 IS AGAINST SUSTAINING THE ADDITION OF RS.13,00,750/-. LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE BHOPAL GARAGE KHEDA /ITANO.915/2019 4 SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSION. THE SUBMISSIONS OF THE ASSESSEE ARE REPRODUCED AS UNDER: A) LD. LOWER AUTHORITIES HAVE BRUSHED ASIDE THE FAC T THAT THE REGISTRATION, TRANSPORTATION AND DELIVERY, INSURANCE HAVE ALREADY BEEN CONSIDERED WHILE PREPARING THE FINAL ACCOUNTS, WHICH WERE THE BASIS OF COMPUTATION. THE FACTS CAN BE VERIFIED AS UNDER : HEAD OF RECEIPT AMOUNT SUBMISSIONS REGISTRATION AND INSURANCE 9,01,141 1. INFACT GROSS AMOUNT OF RS.36,91,917/- WAS RECEIVED FROM CUSTOMERS. AMOUNT OF RS.27,90,776/- WAS EXPENDED. PB 45-54 IS THE LEDGER. NET AMOUNT OF RS.9,01,141 AS APPEARING IN LEDGER (PB 54) WAS TAKEN TO THE P & L UNDER THE HEAD OTHER INCOME. PB 19. THE EXACT FIGURE AS STATED ABOVE HAS BEEN ALREADY CONSIDERED IN THE ACCOUNTS AND OFFERED AS INCOME TRANSPORTATION, FREIGHT ON SPARE PARTS (DELIVERY CHARGES) 3,10,609.05 1. THIS AMOUNT COMPRISES OF NET AMOUNT OF TRANSPORTATION RS.2,73,249. PB44 FREIGHT ON SPARE PARTS RS.37,360 WHILE FINALIZATION OF ACCOUNTS, BOTH THE FIGURES WERE MERGED TOGETHER AND AN AMOUNT OF RS.3,10,609/- WAS DEBITED AT RS.3,10,609/- PB 15. IT IS PERTINENT FACT THAT IN RESPECT OF TRANSPORTATION CHARGES, THE GROSS AMOUNT RECEIVED WAS RS.8,33,046/- AND THE AMOUNT EXPENDED WAS RS.11,06,296/-. PB 35-44. 2. LD. ADJUDICATING AUTHORITIES IN THE VAT HAD ROUGHLY MADE AN ESTIMATE AT RS.100 AS DELIVERY CHARGES AND RS.250 AS TRANSPORTATION PER VEHICLE. THE EXACT FIGURE AS STATED ABOVE HAS BEEN ALREADY CONSIDERED IN THE ACCOUNTS AND THE NET AMOUNT HAS BHOPAL GARAGE KHEDA /ITANO.915/2019 5 BEEN DEBITED. IT IS FURTHER SUBMITTED THAT IN THE MANUAL SALES REG ISTER, AT EACH MONTH END, A SUMMARY OF THE VARIOUS HEADS IN WHICH THE AMOUNT WAS RECEIVED I.E. SALES RECEIPT, REGISTRATION, TRANS PORTATION, INSURANCE ETC. WAS RECORDED FOR THAT THIS FIGURE WAS TRANSFERRED TO THE RESPECTIVE LEDGER. THUS, THE AMOUNTS RECEIVED UN DER THE RESPECTIVE HEADS HAVE ALREADY BEEN CONSIDERED. ANY FU RTHER ADDITION WOULD RESULT IN DOUBT ADDITION. B) IN FACT IN THE EARLIER YEAR, SIMILAR ISSUE AROSE . LD. CIT(A) TOOK NOTE OF THE FACT THAT THE SAME HAS ALREADY BEEN CONSIDER ED WHICH OFFERING THE INCOME AND HENCE DELETED THE ADDITION. NO APPEAL A GAINST SAME WAS FILED BY THE LD. AO. 5. HOWEVER, LD. DR OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. IT IS THE CASE OF THE ASSESSEE THAT IT RECEIVED GROSS AMOUNT OF RS.36,91,917/- FROM CUSTOME RS IN RESPECT OF REGISTRATION AND INSURANCE AND AGAINST THIS EXPENDITURE OF RS.27,90,776/- WAS INCURRED. IN SUPPO RT OF THIS THE ASSESSEE HAS DRAWN OUT ATTENTION TO PAPER BOOK BHOPAL GARAGE KHEDA /ITANO.915/2019 6 PAGES 45 -54. FURTHER, IN RESPECT OF TRANSPORTATION CH ARGES IT IS STATED THAT THE AMOUNT COMPRISES OF NET AMOUNT OF TRANSPORTATION OF RS.2,73,249/- AND FREIGHT ON SPARE PAR TS OF RS.37,360/-. OUR ATTENTION WAS DRAWN TO PAPER BOOK PAGES 35 TO 44. IT WAS CONTENDED THAT WHILE THE ADJUDICATING AUTHORITIES, VAT ROUGHLY MADE AN ESTIMATE AT RS. 100/- AS DELIVERY CHARGES, RS.250/- TRANSPORTATION CHARGES PER VEHICLE. IT WAS SUBMITTED THAT THE FIGURE WAS DULY RECORDED AND NET AMOUNT WAS DEBITED. IT WAS FURTH ER CONTENDED THAT IN THE MANUAL SALE REGISTER, AT EACH MONTH END, A SUMMARY OF THE VARIOUS HEAD IN WHICH THE AMOUNT WAS RECEIVED I.E. SALES RECEIPT, REGISTRATION, TRANSPOR TATION, INSURANCE ETC. WAS DULY RECORDED AND THIS FIGURE WAS TRANSFERRED TO THE RESPECTIVE LEDGER. HENCE, THE AMOU NTS RECEIVED UNDER THE RESPECTIVE HEADS HAVE ALREADY BEEN CONSIDERED. ANY FURTHER ADDITION WOULD RESULT IN DOU BLE ADDITION. IT WAS POINTED OUT THAT UNDER THE IDENTICAL FACTS BHOPAL GARAGE KHEDA /ITANO.915/2019 7 IN THE EARLIER YEAR, THE LD. CIT(A) IN THE CASE OF ASS ESSEE ITSELF AFTER CONSIDERING MATERIAL PLACED ON RECORD, DEL ETED THE ADDITION, THERE WAS NO CHANGE INTO FACTS AND CIRCUMSTANCES TO TAKE DIFFERENT VIEW IN THE PRESENT Y EAR. WE FIND THAT LD. CIT(A) DECIDED THE ISSUE AS UNDER: THROUGH THIS GROUND OF APPEAL THE APPELLANT HAS CH ALLENGED THE ADDITION OF RS.13,00,750/- ON ACCOUNT OF DIFFER ENCE IN THE SALE. THE APPELLANT WHILE FILING THE RETURN OF INCO ME HAS DISCLOSED SALE OF RS.9,72,19,568/- WHEREAS THE APPE LLANT HAS DISCLOSED THE SALE AT RS.98,52,318/- WHILE FILING T HE RETURN WITH COMMERCIAL TAX DEPARTMENT. THE CONTENTION OF THE AP PELLANT THAT HE IS NOT INCLUDED THE REGISTRATION CHARGES IN THE SALE. IT IS TO BE MENTIONED THAT THE REGISTRATION CHARGES ARE TO BE B ORNE BY THE PURCHASER. THEREFORE, THERE CANNOT BE A DIFFERENCE IN THE SALE IN THE RETURN FILED WITH THE INCOME TAX DEPARTMENT AS WELL COMMERCIAL TAX DEPARTMENT. THEREFORE, THE ADDITION MADE BY THE AO AMOUNTING TO RS.13,00,750/- IS CONFIRMED. THEREF ORE, THE APPEAL ON THIS GROUND IS DISMISSED. 7. FROM THE FINDING OF THE LD. CIT(A), IT IS EVIDEN T THAT THE BASIS OF THE SUSTAINING THE ADDITION IS PURELY ON DIFF ERENCE IN THE SALE RETURN FILED WITH THE INCOME TAX DEPARTME NT AND THE COMMERCIAL TAX DEPARTMENT. HOWEVER, THE ASSESSEE HAS POINTED OUT THAT COMMERCIAL DEPARTMENT HAD BHOPAL GARAGE KHEDA /ITANO.915/2019 8 TAKEN THE FIGURE ON ESTIMATE BASIS. THE FACTS STATED BY THE ASSESSEE COULD NOT BE REBUTTED BY THE REVENUE. MOREO VER, THE FACTS THAT UNDER THE IDENTICAL FACTS AND CIRCUMSTANCE S IN EARLIER YEAR CLAIM OF THE ASSESSEE WAS ALLOWED. THE REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SUGGE ST THAT THERE IS ANY CHANGE INTO FACTS AND CIRCUMSTANCES AND THE SUBMISSIONS MADE BY THE ASSESSEE ARE NOT CORRECT. WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO DELETE TH E ADDITION. 8. IN RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALL OWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29.09.2020 . SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIAL MEMBER INDORE; DATED : 30/09/2020 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE