More Mover Sales Pvt. Ltd, Ahmedabad V. ITO, Ward-2(1)(4), Ahmedabad

ITA 978/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6094 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-02-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Keywords: Condonation of delay; TDS; Set aside
• Section: 148; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT ITA NO. 978/AHD/2018 ASSESSMENT YEAR : 2008-09 MORE MOVER SALES PVT LTD, C/O. SHRI PINAKIN RAMANLAL SONI, DIRECTOR, 13, PARAS KUNJ SOCIETY, PART-2, NR. UMIYA VIJAY BUS STOP, SATELLITE, AHMEDABAD [PAN : AADCM 2936 P] VS. INCOME TAX OFFICER, WARD 2(1)(4), AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI BIREN SHAH, AR REVENUE BY : SHRI DILIP KUMAR, SR DR / DATE OF HEARING : 04/02/2020 / DATE OF PRONOUNCEMENT: 05/02/2020 / O R D E R THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAI NST THE ORDER OF LEARNED CIT(A), AHMEDABAD-5 DATED 02.02.2018 PASSED FOR ASS ESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS TAKEN THREE GROUNDS OF APPEAL; OUT OF WHICH GROUND NO.3 IS GENERAL GROUND OF APPEAL WHICH DOES NOT CAL L FOR RECORDING OF ANY SPECIFIC FINDINGS; HENCE REJECTED. 3. IN BRIEF, THE GRIEVANCE OF THE ASSESSEE INVOLVED IN GROUND NS. 1 & 2 IS THAT LEARNED CIT(A) HAS ERRED IN NOT CONDONING THE DELAY OF 157 DAYS IN FILING THE APPEAL BEFORE THE LEARNED FIRST APPELLATE AUTHORITY AND THEREBY CONFIRMING AN ADDITION OF RS.6,98,050/- MADE BY THE ASSESSING OFF ICER. 4. THE BRIEF FACTS OF THE CASE ARE THAT, ACCORDING TO THE ASSESSING OFFICER, HE RECEIVED AN INFORMATION ON THE BASIS OF DATA AVAILA BLE IN FORM NO.26AS IN ITD SYSTEM THAT DURING THE YEAR THE ASSESSEE HAD RECEIV ED A RECEIPT OF SMC-ITA NO. 978/AHD/2018 MORE MOVER SALES PVT LTD VS. ITO FOR AY: 2008-09 2 RS.17,45,119/- ON WHICH TAX WAS DEDUCTED AND DEPOSI TED IN THE GOVERNMENT ACCOUNT BY THE DEDUCTOR AMOUNTING TO RS.1,90,785/-; BUT NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. ARMED WITH THIS INFORMA TION, THE ASSESSING OFFICER HAD ISSUED NOTICE UNDER SECTION 148 OF THE INCOME-T AX ACT WHICH WAS SERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICE, IT WA S CONTENDED BY THE ASSESSEE THAT IT HAD NOT CARRIED OUT ANY BUSINESS AND SOMEBO DY HAS WRONGLY USED ITS PAN DATA BY SHOWING DEDUCTION OF TAXES. THE ASSESSI NG OFFICER DID NOT MAKE ANY ENQUIRY. HE ASSUMED THAT THE ASSESSEE MUST HAVE DONE BUSINESS AND, THEREFORE, HE ESTIMATED GROSS PROFIT IN THE ALLEGED RECEIPTS ON WHICH TDS WAS DEDUCTED AT 40% AND MADE AN ADDITION OF RS.6,98,050 /-. ACCORDING TO THE ASSESSEE, THIS ASSESSMENT ORDER WAS PASSED ON 20.01 .2016 AND ON RECEIPT OF THIS ASSESSMENT ORDER ASSESSEE FILED AN APPLICATION UNDE R SECTION 154 OF THE INCOME- TAX ACT FOR RECTIFICATION OF THIS ORDER. SUCH APPLI CATION WAS FILED ON 09.02.2016. WHEN ASSESSING OFFICER REJECTED THIS APPLICATION, T HEN THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A) AGAINST THE ORIGIN AL ORDER AND IN THIS WAY THE APPEAL HAS BECOME TIME BARRED BY 157 DAYS. THE ASSE SSEE PRAYED FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE TH E LEARNED CIT(A) UNDER SECTION 249(3) OF THE INCOME-TAX ACT. LEARNED CIT(A ) DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL BEING TIME BARRED. 5. WITH THE ASSISTANCE OF LEARNED REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. TO MY MIND, THE ASSESSEE WAS PREV ENTED BY PLAUSIBLE REASON FOR NOT FILING THE APPEAL BEFORE THE LEARNED CIT(A) WELL IN TIME. AFTER ASSESSMENT ORDER, THERE WERE TWO REMEDIES AVAILABLE TO THE ASSESSEE EITHER IT SHOULD HAVE FILED APPEAL BEFORE THE LEARNED CIT(A) OR IT SHOULD HAVE POINTED OUT THE EXACT ERROR COMMITTED BY THE ASSESSING OFFI CER IN APPRECIATING THE FACT. SINCE, ACCORDING TO THE ASSESSEE, IT HAD NOT CARRIE D OUT ANY BUSINESS MORE PARTICULARLY WITH RELIANCE COMMUNICATIONS LTD AND S OMEBODY HAS WRONGLY MISUSED THE DATA, IN THAT SITUATION IT WAS NECESSAR Y FOR THE ASSESSEE TO GET A SMC-ITA NO. 978/AHD/2018 MORE MOVER SALES PVT LTD VS. ITO FOR AY: 2008-09 3 FINDING OF FACT ON THIS ISSUE FROM THE ASSESSING OF FICER. A PERUSAL OF THE ASSESSMENT ORDER WOULD INDICATE THAT THE ASSESSING OFFICER HAS TREATED THE INFORMATION IN THE DATA AS GOSPEL TRUTH INSPITE OF OBJECTIONS OF THE ASSESSEE. HE SHOULD HAVE VERIFIED IT FROM THE RELIANCE COMMUNICA TIONS LTD AND OUGHT TO HAVE FOUND OUT AS TO WHETHER ANY PAYMENT THROUGH BA NKING CHANNEL WAS EVER MADE TO THE ASSESSEE ON WHICH THE ALLEGED TDS WAS S HOWN. ONLY THEREAFTER HE SHOULD HAVE CONCLUDED THAT BUSINESS WAS CARRIED OUT BY THE ASSESSEE. THE ASSESSEE ADOPTED THIS COURSE AND DID NOT FILE APPEA L BEFORE THE LEARNED CIT(A). ON REJECTION OF THIS APPLICATION, IT FILED APPEAL A GAINST THE ASSESSMENT ORDER INSTEAD OF 154 ORDER PASSED BY THE ASSESSING OFFICE R BECAUSE THE SCOPE IN CHALLENGING THE ASSESSMENT ORDER IN APPEAL IS FAR M ORE WIDER THAN CHALLENGING THE ORDER PASSED UNDER SECTION 154 OF THE INCOME-TA X ACT FOR RECTIFICATION OF ANY MISTAKE. SINCE THE ASSESSEE HAS AVAILED ONE OF THE COURSES AVAILABLE TO IT AND THIS HAS MADE ITS APPEAL TIME BARRED, I AM OF T HE VIEW THAT IT IS A PLAUSIBLE EXPLANATION FOR CONDONATION OF DELAY. THEREFORE, I CONDONE THE DELAY OF 157 DAYS IN FILING THE APPEAL BEFORE THE LEARNED CIT(A) . 6. SO FAR AS MERIT OF THE CASE IS CONCERNED, LEARNE D FIRST APPELLATE AUTHORITY HAS NOT ADJUDICATED THE ISSUE ON MERITS B ECAUSE THE APPEAL WAS TIME BARRED AND LEARNED CIT(A) DID NOT CONDONE THE DELAY IN FILING THE APPEAL. NORMALLY, IN SUCH A SITUATION, THE MATTER SHOULD BE RESTORED TO THE FILE OF LEARNED FIRST APPELLATE AUTHORITY WITH THE DIRECTIO N TO ADJUDICATE IT ON MERITS. HOWEVER, AFTER GOING THROUGH THE ASSESSMENT ORDER, I FIND THAT BY REMITTING THE ISSUE TO THE FILE OF THE LEARNED CIT(A) IT WILL ONL Y GIVE RISE TO THE MULTIPLICITY OF THE LITIGATION. THE FINDING OF FACT WOULD BE REQUI RED TO BE RECORDED EXHIBITING THAT THE ASSESSEE HAS ACTUALLY CONDUCTED BUSINESS W ITH RELIANCE COMMUNICATIONS LTD WHO HAS DEDUCTED THE TDS BY USIN G THE PAN DATA OF THE ASSESSEE. IF IT IS ESTABLISHED THAT RELIANCE COMMUN ICATIONS LTD HAS MADE PAYMENT OF RS.17,45,119/- TO THE ASSESSEE THROUGH B ANKING CHANNEL ON WHICH SMC-ITA NO. 978/AHD/2018 MORE MOVER SALES PVT LTD VS. ITO FOR AY: 2008-09 4 TDS OF RS.1,90,785/- WAS RIGHTLY DEDUCTED, ONLY THE N IT IS TO BE ASSUMED THAT THE ASSESSEE HAS UNDERTAKEN SOME BUSINESS AND ITS I NCOME DESERVES TO BE ESTIMATED OR DETERMINED. ONCE THE ASSESSEE TOOK THI S PARTICULAR STAND, THEN IT SHOULD HAVE BEEN INVESTIGATED BY THE ASSESSING OFFI CER; THEREAFTER, HE COULD PROCEED ON THE ALTERNATIVE ABOUT ESTIMATING THE INC OME OF THE ASSESSEE IN THIS ACTIVITY. WITHOUT RECORDING ANY SPECIFIC FINDINGS ON THE STAND OF THE ASSESSEE REGARDING NON-CONDUCTING OF ANY BUSINESS, IT IS NOT JUSTIFIABLE AT THE END OF THE LEARNED ASSESSING OFFICER TO STRAIGHTWAY GO FOR EST IMATION OF INCOME. THEREFORE, I DEEM IT APPROPRIATE TO SET ASIDE BOTH THE IMPUGNED ORDERS AND RESTORE THE ISSUE TO THE FILE OF THE LEARNED ASSESS ING OFFICER FOR RE-ADJUDICATION. IT IS NEEDLESS TO SAY THAT THE OBSERVATIONS MADE BY ME WILL NOT IMPAIR OR INJURE THE CASE OF THE ASSESSING OFFICER AND WILL NOT CAUS E ANY PREJUDICE TO THE DEFENSE OR EXPLANATIONS OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5 TH FEBRUARY, 2020 AT AHMEDABAD. SD/- (RAJPAL YADAV) VICE PRESIDENT AHMEDABAD; DATED 05/02/2020 *BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. ! %% , , / DR, ITAT, AHMEDABAD 6. , / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT. REGISTRAR) %, / ITAT, AHMEDABAD SMC-ITA NO. 978/AHD/2018 MORE MOVER SALES PVT LTD VS. ITO FOR AY: 2008-09 5 1. DATE OF DICTATION- ..04.02.2020. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE D ICTATING MEMBER .04.02.2020.. OTHER MEMBER 05.02.2020. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S ./P.S. - 05.02.2020.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DI CTATING MEMBER FOR PRONOUNCEMENT 05.02.2020. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK05.0 2.2020 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGIS TRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER