SHRI KAMAL TAK, Ajmer V. INCOME TAX OFFICER, WARD-1-3, AJMER

MA 138/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7248 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 18-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA ACIT
• Assessee Lawyers: SUBHASH PORWAL
• Keywords: Set aside
• Section: 143(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO.138/JP/2018 (ARISING OUT OF ITA NO. 296/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 SHRI KAMAL TAK 295, GUJRATI BHATA, TOPDARA, AJMER. CUKE VS. THE ITO, WARD-1(3), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AMWPT 3092 M VIHYKFKHZ@ APPELLAN T IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI SUBHASH PORWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K C. MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 29/03/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 23/04/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 296/JP/2018 DATED 04.09.2018. 2. IN ITS MISC. PETITION, THE ASSESSEE HAS SUBMITT ED THAT HE HAS FILED HIS RETURN OF INCOME AS SUB-LICENCEE OF BHAIRU SIN GH WHO WAS ORIGINALLY ALLOTTED LIQUOR SHOP, HOWEVER, DUE TO CERTAIN INAD VERTENT REASONS, HE COULD NOT RUN THE LIQUOR SHOP AND VIDE AGREEMENT DA TED 20.07.2011 HAD M.A. NO. 138/JP/2018 SHRI KAMAL TAK VS. ITO 2 AGREED TO HAND OVER THE RIGHTS OF RUNNING THE LIQUO R SHOP TO THE ASSESSEE. IN THE RETURN OF INCOME, THE ASSESSEE HAS DISCLOSED SALES, PURCHASE, AND PROFITS IN RESPECT OF HIS RUNNING THE LIQUOR SHOP AND HAS ALSO CLAIMED TCS. IT WAS SUBMITTED THAT THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT AND THE CREDIT FOR TCS WAS NOT GR ANTED AS THE SAME WAS REFLECTED IN THE NAME OF BHAIRU SINGH AND NOT I N THE NAME OF ASSESSEE. 3. IT WAS SUBMITTED THAT THE BENCH WHILE PASSING TH E IMPUGNED ORDER HAS HELD THAT THERE IS NOTHING ON RECORD WHIC H HAS BEEN SUBMITTED BY THE ASSESSEE TO DEMONSTRATE THAT CREDI T OF TCS HAS NOT BEEN CLAIMED BY MAIN LICENCEE IN HIS INDIVIDUAL TAX RETURN. IN THIS REGARD, IT WAS SUBMITTED THAT THE ASSESSEE HAS ALRE ADY FILED AN AGREEMENT DATED 20.07.2011 ENTERED INTO WITH BHAIRU SINGH WHEREIN HE HAS DECLARED THAT THE FILING OF TAX RETURN IS THE R ESPONSIBILITY OF THE ASSESSEE AND HE HAS ALSO AGREED THAT HE WILL NOT CL AIM ANY TCS IN HIS PERSONAL TAX RETURN. IT WAS SUBMITTED THAT THE ASS ESSEE HAS NO ACCESS TO HIS PERSONAL TAX RETURN BUT IT IS A FACT THAT HE HAS NOT CLAIMED ANY CREDIT OF TCS IN HIS TAX RETURN AND WHICH CAN BE VE RIFIED BY THE DEPARTMENT. IN THIS REGARD, OUR REFERENCE WAS DRAW N TO PARA 11 OF THE AGREEMENT DATED 20.07.2011 WHICH READS AS UNDER:- 11- ;G FD VK;DJ FOHKKX ESA VK; FOOFJF.KDK INCOME TAX RETURN NKF[KY DJUK] VK;DJ FU/KKZJ.K INCOME TAX ASSESSMENT RFKK VK;DJ NSUK VFKOK VK;DJ YSUK REFUND OG F}RH; I{K DH IWJH LGEFR GSA HKFO'; ESA IZFKE I{K DH IWJH LGEFR GSA HKFO'; E SA IZFKE I{K BL LEWG ISVS L=KSR IJ TEK VK;DJ TAX COLLECTED AT SOURCE IJ VIUK NKOK ISK UGHA DJSXK RFKK MLDK YKHK F}RH; I{K IZKIR DJSXK A M.A. NO. 138/JP/2018 SHRI KAMAL TAK VS. ITO 3 4. IT WAS ACCORDINGLY SUBMITTED THAT APPARENTLY, TH E SAID AGREEMENT HAS SKIPPED THE ATTENTION OF THE BENCH WHILE PASSIN G THE IMPUGNED ORDER. IT WAS FURTHER SUBMITTED THAT IN SIMILAR CAS ES, THE COORDINATE BENCHES HAVE PASSED THE ORDERS WHEREIN THE MATTER H AS BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR NECESSARY VERIFICATION OF TCS BY THE MAIN LICENCEE. IT WAS ACCORDINGLY SUBMITTED THA T THE ORDER PASSED BY THE COORDINATE BENCH MAY KINDLY BE RECALLED TO H EAR THE SAME AFRESH AFTER TAKING INTO CONSIDERATION THE AGREEMENT SO FI LED BY THE ASSESSEE AS WELL AS THE DECISIONS OF THE COORDINATE BENCH RE NDERED ON SIMILAR LINES. 5. THE LD. DR IS HEARD WHO HAS TAKEN THROUGH THE FI NDINGS OF THE COORDINATE BENCH AND HELD THAT THERE IS NO MISTAKE IS APPARENT FROM RECORD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS A MATTER OF RECORD THAT THE ASSESSEE HAS FILED A COPY OF AGREEMENT DATED 20.07.2011 WHICH IS AVAILAB LE ON RECORD AND THEREIN, BOTH THE PARTIES HAD AGREED THAT THE RESPO NSIBILITY TO FILE TAX RETURN IN RESPECT OF TRANSACTIONS RELATING TO THE L IQUOR SHOP SHALL BE ON THE ASSESSEE, AND TCS SHALL BE CLAIMED BY THE ASSES SEE AND NOT BY SHRI BHAIRU SINGH. FURTHER, WE FIND THAT THE LD. CIT(A) HAS RETURNED A FINDING THAT THE TCS ACTUALLY BEEN DEDUCTED OF RS. 2,28,714/- IN THE NAME OF SHRI BHERU SINGH TAX ( PAN NO. AOBPT6127). IT IS THEREFORE A MATTER OF RECORD THAT THERE IS AN WRITTEN UNDERSTAN DING BETWEEN THE MAIN LICENSEE AND THE ASSESSEE THAT THE LATTER SHAL L DISCLOSE THE BUSINESS TRANSACTIONS RELATING TO LIQUOR SHOP AND S HALL PAY TAXES AND ANY TAX COLLECTED AT SOURCE SHALL BE CLAIMED BY THE ASSESSEE AND M.A. NO. 138/JP/2018 SHRI KAMAL TAK VS. ITO 4 APPARENTLY, THE SAME HAS SKIPPED THE ATTENTION OF T HE BENCH WHILE PASSING THE IMPUGNED ORDER. WE THEREFORE, DEEM IT APPROPRIATE TO RECALL THE IMPUGNED ORDER AND THE REGISTRY IS DIREC TED TO FIX THE MATTER FOR HEARING THE SAME AFRESH ON MERITS IN DUE COURSE . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/04/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23/04/2019. SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI KAMAL TAK, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1(3), AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 138/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.