The ACIT, Central Circle-2, Surat V. M/s. La Calypso Hotels Pvt.Ltd., Goa

ITSSA 186/AHD/2010

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9428 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 23-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Keywords: Assessment record; Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER IT(SS) A NO. 186/AHD/2010 A.Y: 2006-07 ACIT, CENTRAL CIRCLE-2, SURAT VS M/S. LA CALYPSO HOTELS PRIVATE LIMITED, SAUNTAWADO (FELECIAN, OPP. RONIL BEACH), CALANGUTE-BAAGA ROAD, CALANGUTE, BARDEZ-GOA. PAN AABCL 0826H (APPELLANT) (RESPONDENT) REVENUE BY : SHRI K.C.MATHEWS, SR.D.R. ASSESSEE(S) BY : NONE / // / DATE OF HEARING : 05/08/2013 / DATE OF PRONOUNCEMENT: 14/08/2013 / O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE REVENUE, WHICH IS DIRE CTED AGAINST THE ORDER OF CIT(A)-II, AHMEDABAD DATED 20.11.2009 FOR A.Y. 2006-07. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE ALTHOUGH THE NOTICE OF HEARING WAS DULY SERVED ON THE ASSESSEE THROUGH D.R . AND HENCE WE PROCEED TO DECIDE THIS APPEAL OF THE REVENUE EX-PAR TE QUA THE ASSESSEE. 3. GROUND NO.1 IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING THE ADDITION AT RS.21,37,563/- MADE ON ACCOUNT OF UNVERIFIABLE PURC HASES SINCE THE LETTERS ISSUED BY THE ASSESSING OFFICER U/S. 133(6) OF THE ACT EITHER REMAINED UNSERVED OR NOT REPLIED AT ALL AND THE ASSESSING OF FICER WAS NOT ABLE TO VERIFY THE GENUINE NATURE OF THE PURCHASES CLAIMED BY THE ASSESSEE. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN ACCE PTING THE CONTENTION OF THE ASSESSEE THAT ALL THE DETAILS REQUIRED BY THE ASSES SING OFFICER WERE FURNISHED ITA NO.186/AHD/2 010 ACIT VS. M/S. LA CALYPSO HOTELS P. LTD., SURAT. A.Y. 2006-07 - 2 - DURING THE COURSE OF ASSESSMENT PROCEEDINGS IGNORIN G THAT WHEN THE NOTICES U/S 133(6) WERE RETURNED UNSERVED OR NOT REPLIED AT ALL, ASSESSING OFFICER HAD ASKED THE ASSESSEE TO FURNISH THE PHOTO COPY OF PAN , P&L A/C ,BALANCE SHEET AND LEDGER ACCOUNT OF THE RESPECTIVE PARTIES DULY S IGNED BY THEM, WHICH WAS NOT RESPONDED BY THE ASSESSEE FAILING TO DISCHARGE HIS ONUS TO PROVE THE GENUINE NATURE OF TRANSACTION. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE RATIO LAID DOWN IN THE JUDGMENT OF THE THE HON'BLE GUJARAT HIG H COURT IN THE CASE OF CIT VS CHARAVILAS HOTEL(1987) 164 ITR 102, WHEREIN IT HAS BEEN HELD THAT IF THE EXPENDITURE IS DOUBTED BY THE ASSESSING OFFICER ,IT IS THE DUTY OF THE ASSESSEE TO PROVE BY LEADING EVIDENCE THAT THE EXPE NDITURE WAS IN FACT INCURRED. 4. IT IS SUBMITTED BY LEARNED DR OF THE REVENUE THA T THIS ISSUE WAS DECIDED BY THE LEARNED CIT(A) IN FAVOUR OF THE ASSE SSEE ON THIS BASIS THAT ASSESSEE HAS REPLIED VIDE LETTER DATED 23.12.2008 T O THE AO IN WHICH THE ASSESSEE HAS SUBMITTED DETAILED INFORMATION OF THE CHARGES INCLUDING NAME AND DETAILED ADDRESS, INCOME TAX PAN, SALES TA X NUMBER, CONTACT NUMBER, NATURE OF TRANSACTION WITH THE PARTY, ETC. IT IS ALSO SUBMITTED BY HIM THAT IT IS SPECIFICALLY NOTED BY THE AO IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS ONLY FILED MERE NAMES OF THE PARTI ES WITHOUT PAN, COPIES OF BILL, ADDRESS OF PARTY, ETC. THESE FACTS ARE NOTED BY THE LEARNED CIT(A) ALSO IN PARAGRAPH 4 OF HIS ORDER AND NO FIND ING IS GIVEN BY HIM THAT THE SAID REPLY DATED 23.12.2008 IS AVAILABLE I N THE ASSESSMENT RECORDS AND HE HAS ALSO NOT OBTAINED ANY REMAND REPORT FROM THE AO AND THEREFORE, THIS ISSUE SHOULD GO BACK TO THE FILE OF THE AO FOR A FRESH DECISION. WE FIND FORCE IN THIS CONTENTION OF THE L EARNED DR OF THE REVENUE BECAUSE WE FIND THAT IN SPITE OF THIS FACT AS HAS BEEN NOTED BY THE LEARNED CIT(A) IN PARAGRAPH 4 OF HIS ORDER THAT AS PER THE AO THE ASSESSEE HAS FURNISHED ONLY NAME OF THE PARTIES WIT HOUT PAN AND COPIES OF BILLS, ADDRESS OF PARTIES, ETC., WERE NOT SUBMIT TED, LEARNED CIT(A) HAS NOT GIVEN ANY FINDING THAT THESE DETAILS ONLY WERE FILED WITH REPLY LETTER ITA NO.186/AHD/2 010 ACIT VS. M/S. LA CALYPSO HOTELS P. LTD., SURAT. A.Y. 2006-07 - 3 - DATED 23.12.2008 AND THE SAME WAS IN FACT AVAILABLE IN THE ASSESSMENT RECORDS. THE ASSESSMENT ORDER IS DATED 29.12.2008 A ND HENCE, IT IS ALSO POSSIBLE THAT THIS LETTER DATED 23.12.2008 MIGHT NO T HAVE REACHED TO THE AO IF THE SAME WAS NOT FURNISHED TO THE AO BY HAND. LEARNED CIT(A) HAS NOT OBTAINED ANY REMAND REPORT FROM THE AO AND HENCE, WE FEEL IT PROPER THAT THIS ISSUE SHOULD GO BACK TO THE FILE O F THE AO FOR A FRESH DECISION, THEREFORE, WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE BACK THIS MATTER TO THE FILE OF T HE AO FOR A FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. GROUND NO.1 OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 5. GROUND NO.2 IS AS UNDER: THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION AT RS.1,32,979/- MADE ON ACCOUNT OF LATE PAYMENT OF EM PLOYEES CONTRIBUTION TO PF IGNORING THE PROVISIONS OF SECTION 2(24)(X) R.W. S 36(VA) OF THE I.T. ACT READ TOGETHER WITH THE CLAUSE (1) OF PARAGRAPH 38 OF EMP LOYEES PROVIDENT FUND SCHEME, 1952. THE LD. CIT(A) HAS ERRED IN LAW .AND ON FACTS IN NO T APPRECIATING THE RATIO LAID DOWN IN THE JUDGMENT OF THE THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS MADRAS RADIATORS 85 PRESSING LTD 264 ITR 620 AND HONBLE HIGH COURT OF KERALA IN THE CASE OF CIT VS STANDARD TILE S & CLAY WORKS PVT. LTD 265 ITR 525 , WHEREIN IT HAS BEEN HELD THAT THE ASS ESSEE WAS NOT ENTITLED TO DEDUCTION OF THE LATE PAYMENT OF EMPLOYEES CONTRIBU TION OF PF, AS THE PAYMENTS WERE NOT MADE WITHIN DUE DATE AS DEFINED I N THE EXPLANATION TO SECTION 36(1) (VA) OF THE ACT. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT (A) BE SET ASIDE AND THAT THE A.O. BE RESTORED TO THE ABOVE EXTENT. 6. IT WAS SUBMITTED BY THE LEARNED DR OF THE REVENU E THAT AS PER THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL RENDER ED IN THE CASE OF LKP SECURITIES LTD. IN ITA NO.638/MUM/2012 DATED 17 .05.2013, THIS ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE AFTER CONSIDERING ALL THE AVAILABLE JU DGMENTS TILL DATE ITA NO.186/AHD/2 010 ACIT VS. M/S. LA CALYPSO HOTELS P. LTD., SURAT. A.Y. 2006-07 - 4 - INCLUDING THE JUDGMENT OF HONBLE APEX COURT RENDER ED IN THE CASE OF ALOM EXTRUSIONS LTD, 319 ITR 306. HENCE, ON THIS AS PECT, THE ORDER OF THE LEARNED CIT(A) SHOULD BE REVERSED AND THAT OF T HE AO SHOULD BE RESTORED. 7. WE HAVE CONSIDERED THE SUBMISSION OF LEARNED DR OF THE REVENUE AND WE FIND THAT AS PER THIS TRIBUNAL ORDER RENDERE D IN THE CASE OF LKP SECURITIES (SUPRA), THIS ISSUE REGARDING DELAYED PA YMENT OF EMPLOYEES CONTRIBUTION TO PF WAS DECIDED IN FAVOUR OF THE REV ENUE AFTER CONSIDERING ALL THE AVAILABLE JUDGMENTS INCLUDING T HE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF ALOM EXTRUSIONS (SUPRA) AND HENCE, WE DECIDE THIS ISSUE IN FAVOUR OF THE RE VENUE IN THE PRESENT CASE ALSO BY FOLLOWING THIS TRIBUNAL DECISION. THIS GROUND OF THE REVENUE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED ON THE DATE MENTIONED ON CAPTION P AGE. SD/- SD/- (D.K. TYAGI) (A.K. GARODIA) JUDICIAL MEMBER ACCOU NTANT MEMBER PRABHAT KR. KESARWANI, SR. P.S. TRUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD ITA NO.186/AHD/2 010 ACIT VS. M/S. LA CALYPSO HOTELS P. LTD., SURAT. A.Y. 2006-07 - 5 - 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD