M/s. Narayan Builders, Ahmedabad V. The Income tax Officer,Ward-9(1), Ahmedabad

MA 161/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7904 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 04-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N C AMIN
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI D K TYAGI - JM AND SHRI A MOHAN ALANKAMONY - AM M A NO.161/AHD/2011 [ARISING OUT OF ITA NO.2599/AHD/2008] (ASSESSMENT YEAR:-2005-06) M/S NARAYAN BUILDERS, 43, SHANKAR SOCIETY, NR. AMIKUNJ BUS STOP, NARANPURA, AHMEDABAD- 380013 V/S THE INCOME-TAX OFFICER, WARD-9(1), AHMEDABAD PAN: [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] ASSESSEE BY :- SHRI N C AMIN, AR REVENUE BY:- SHRI SAMIR TEKRIWAL, SR. DR DATE OF HEARING:- 30-03-2012 DATE OF PRONOUNCEMENT:- 20-04-2012 O R D E R PER D K TYAGI (JM) :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS REQUESTED FOR RECALLING OF THE ORDER D ATED 08-04- 2011 PASSED BY THE ITAT AHMEDABAD BENCH-C IN ITA.NO.2599/AHD/2008 FOR THE ASSESSMENT YEAR 2005-0 6. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS SUBMITT ED AS UNDER:- THE APPLICATION OF THE APPLICANT HEREIN (APPELLANT /RESPONDENT) MOST RESPECTFULLY SHEWETH AS UNDER: THE APPLICANT HERE IN WAS APPELLANT IN APPEAL FILED BEARING NO. ITA NO.2599/AHD/2008 FOR ASSESSMENT YEAR 2005-06. 2 2 THE HON'BLE ITAT 'C' BENCH, AHMEDABAD HAS PASSED OR DER U/S 254 DATED 8.4.2011 WHEREIN SOME GROUNDS HAVE BEEN ADJUD ICATED WITHOUT CONSIDERING EVIDENCES, MATERIALS AND VARIOUS DECISI ON LYING ON RECORD OF THE LOWER AUTHORITIES AND THEREFORE THERE IS MIS TAKE IN PASSING AFORESAID ORDER TO BE RECTIFIED U/S 254(2) OF THE I .T. ACT 1961. THE APPLICANT HAS RECEIVED APPELLATE ORDER PASSED B Y HON'BLE IT AT 'C' BENCH, AHMEDABAD BEARING NO.2599/AHD/2008 DATED 8.4.2011 ON 20.4.2011 PARTLY ALLOWING THE APPEAL FOR A.Y. 2005- 06. THE APPLICANT HAS RAISED 14 GROUNDS OUT OF WHICH THE GROUND NOS. 5 & 6 WHICH ARE REPRODUCED AS UNDER: '(5) ON THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE OF THE APPELLANT, THE PAYMENT MADE TO THE TRANSPORTERS WAS NEITHER ANY CONTRACT AMOUNT 'AS CONTENDED BY THE APPELLANT BEFO RE LD. AO. AS WELL AS CIT(A), HOWEVER, THE DISALLOWANCE. OF RS .9,69,060/- CONFIRMED BY THE ID. CIT(A) BY APPLYING SEC. 40(A)( IA) IS WHOLLY UNJUSTIFIED. (6) THAT THE APPELLANT HAS SUBMITTED WRITTEN SUBMIS SION AT LENGTH BEFORE ID. A.O. AS WELL AS CIT(A), HOWEVER, WITHOUT PROPERLY APPRECIATING THE SAME DISALLOWANCE OF RS.9 ,69,060/- CONFIRMED BY CIT(A) BE DELETED ON MERITS AND JUSTIC E BE DONE TO THE APPELLANT.' DURING THE COURSE OF HEARING BEFORE A.O. HE HAS RAI SED VARIOUS QUERIES AND IN COMPLIANCE THERETO, THE APPELLANT HAS SUBMIT TED ITS WRITTEN SUBMISSION VIDE LETTER DATED 14.6.2007 ALONG WITH M ATERIAL AND EVIDENCES FILED IN PAPER BOOK AND APPEARING AT SR.N O.17 & 18. THEREAFTER ANOTHER WRITTEN SUBMISSION SUBMITTED TO A.O. VIDE LETTER DATED 16.7.07 APPEARING AT SR. NO. 10 PAGE (38 TO 5 3) ALONG WITH VARIOUS DOCUMENTARY EVIDENCES AND AT SR. NO. 11 COP Y OF ACCOUNTS OF VARIOUS TRUCK OWNERS. THEREAFTER ON 6.10.2007 THE A PPELLANT HAS FILED ITS WRITTEN SUBMISSION IN DETAIL STATING THEREIN TH AT THERE IS NO CONTRACT WITH ANY TRUCK OWNERS. EVEN ON PERUSAL OF PAGE NO.67 IT IS SEEN THAT GANES H TRANSPORT CO. TO WHOM WE HAVE MADE ADVANCE PAYMENTS AMOUNTING RS.1,9 6,000/- AND RS.4,500/-, THERE IS NO EVIDENCE ON RECORD THAT THE RE IS A REGULAR CONTRACT WITH THE SAID PARTY AND HE HAS DONE WORK O NLY FOR TWO TIMES. LIKEWISE BHAVANI TRANSORT CO. HAS GIVEN A CERTIFICA TE WHEREIN ALSO IT 3 3 IS ADMITTED BY HIM THAT HE HAS NOT DONE ANY REGULAR CARTING WORK WITH US AND VIPUL TRANSPORT HAS ALSO NOT DONE REGULAR CA RTING WORK. IN THE MONTH OF JULY, OCTOBER, NOVEMBER, JANUARY AND FEBRU ARY, THERE IS NO WORK DONE BY HIM AND THEREFORE THERE IS NO ANY WRIT TEN OR ORAL CONTRACT. LOOKING TO THE ACCOUNTS OF ALL THE TRUCK OWNERS, IT IS SEEN THAT THEY ARE HAVING ONLY ONE OR TWO TRUCKS AND NOT DOIN G REGULAR CARTING ON CONTRACT BASIS WITH ANYBODY AND ONLY DONE PIECEM EAL WORK AND THEREFORE WITHOUT PROVING THAT APPELLANT HAD ANY OR AL OR WRITTEN CONTRACT WITH TRUCK OWNER AND ON PRESUMPTION, THE L EARNED A.O. HAS WRONGLY APPLIED SEC. 194C AND DISALLOWANCE OF CARTI NG EXPENDITURE OF RS.9,69,060/- WAS MADE. THE LEARNED A.O. HAS NEITHER BROUGHT ANY MATERIAL R ECORD FROM TRUCK OWNERS THAT THERE IS A ANY WRITTEN OR ORAL CONTRACT AND IN ABSENCE OF THE SAME, ADDITIONS MADE BY LEARNED A.O. ON PRESUMPTION AND ASSUMPTION WHICH WAS CONFIRMED BY LD. CIT(A). DURING THE COURSE OF HEARING BEFORE HON'BLE IT AT, THE APPELLANT HAS SUBMITTED ITS PAPER BOOK NO. II & III WHEREIN ALSO CITED VARIOUS DECISIONS OF TRIBUNALS AND HIGH COURTS AND WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS AND DECISIONS RELIED UPON BY TH E APPELLANT BEFORE LD. A.O., CIT(A) AND HON'BLE ITAT 'INCLUDING ITAT A HMEDABAD BENCH DECISION THE ORDER PASSED BY HON'BLE ITAT WHE REIN THERE IS A APPARENT, PATENT, AND GLARING MISTAKE WHICH REQUIRE S TO .BE RECTIFIED U/S 254(2) OF THE I.T. ACT 1961. THERE IS NO ASSIGNMENT OF ANY SPECIFIC WORK TO ANY TRANSPORTER, NO TRIPS ARE ALSO FIXED, NO TRIP RATE ARE ALSO FIXED A ND NO TIME LIMIT IS ALSO FIXED AND NO QUANTITY OF WORK IS FIXED AND IT IS AL SO NOT ON THE RECORD OF THE LEARNED A.O. AS WELL AS CIT(A) THAT TRANSPOR TER AND APPLICANT BOTH ARE HAVING CHOICE TO DISCONTINUE THE WORK WITH OUT ANY SPECIFIC NOTICE, WHICH PROVES THAT THERE IS NO ANY WRITTEN O R ORAL CONTRACT. THE APPLICANT HAS SUBMITTED PAPER BOOK NO. II & III IN SUPPORT OF ITS CONTENTION REGARDING PAYMENT MADE TO TRANSPORTER IS WITHOUT ANY WRITTEN OR ORAL CONTRACT AND WITHOUT CONSIDERING AL L THE DECISIONS, THE GROUNDS OF THE APPLICANT WAS DISMISSED BY HON'BLE I TAT AND THEREFORE THERE IS A APPARENT, PATENT AND GLARING M ISTAKE AND CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND RA TIO OF THE DECISION INCLUDING ITAT AHMEDABAD 'B' BENCH DECISION, THE LE GAL AND FACTUAL MISTAKES APPARENT ON THE FACE OF THE RECORD MAY PLE ASE BE RECTIFIED AND DISALLOWANCE OF CARTING EXPENDITURE MADE BY HON'BLE ITAT 4 4 AMOUNTING TO RS.9,69,0607- BE CONSIDERED HOLDING IT AS PAYMENT MADE TO TRANSPORTER IS NOT ON ACCOUNT OF ANY WRITTEN OR ORAL CONTRACT. THE LD. A.O. AS WELL AS LD. CIT(A) BOTH THE AUTHORI TIES HAVE FAILED TO ESTABLISH WITH DOCUMENTARY EVIDENCES OR MATERIALS T HAT THERE IS A CONTRACT BETWEEN THE TRANSPORTER AND THE APPLICANT. NONE OF THE TRANSPORTERS HAVE BEEN EXAMINED AND EVEN NOT ADDRES SED ANY LETTER FOR CONFIRMING REGARDING HAVING ANY WRITTEN OR ORAL CON TRACT AND THEREFORE THERE IS APPARENT AND PATENT MISTAKE. THE HON'BLE I TAT HAS PASSED ORDER AND DISCUSSIONS IS MADE IN PARAS 10, 11 & 12 WITHOUT CONSIDERING MATERIALS AVAILABLE ON RECORD. BEFORE THE LEARNED CIT(A) THE APPELLANT HAS ALSO SU BMITTED ITS WRITTEN SUBMISSION WHICH IS APPEARING ON PAGES 6 TO 9 AND W ITHOUT PROPERLY CONSIDERING THE SAME AND ESTABLISHING THAT THERE IS A WRITTEN OR ORAL CONTRACT WITH THE TRUCK OWNER AND THEREFORE SEC. 19 4C IS NOT APPLICABLE. EVEN THE A.Q. WHO HAS TO FIRST PROVE TH AT THERE IS A WRITTEN OR ORAL CONTRACT WITH THE TRANSPORTER AND WITHOUT D ISCHARGING THAT ONUS AND MERELY STATING SECTION IN THE ASSESSMENT ORDER AND IN ABSENCE OF PROOF THAT THERE IS A WRITTEN OR ORAL CONTRACT AND THEREFORE BOTH THE LOWER AUTHORITIES HAVE NOT DISCHARGED THEIR ONUS TH AT TRANSPORTERS ARE CONTRACTOR OR SUBCONTRACTOR AND AS SUCH BLINDLY APP LYING SEC. 194C AND THEREFORE DISALLOWANCE OF RS.9,69,060/- MADE FO R PAYMENTS TO THE TRANSPORTER BY APPLYING SECTION 40(A)(IA) IS NOT IN ACCORDANCE WITH LAW. EVEN THE LEARNED A.O. AS WELL AS CIT(A) BOTH THE AU THORITIES HAVE NOT REBUTTED THE SUBMISSIONS MADE BY THE APPELLANT AND THEREFORE CONSIDERING THE MATERIAL LYING ON THE RECORD BEFORE THE LOWER AUTHORITIES AND VARIOUS DECISIONS CITED BY THE APPL ICANT, THE MISTAKE APPARENT ON THE FACE OF THE RECORD BE RECTIFIED U/S 254(2) OF THE I.T. ACT 1961. IN THE INTEREST OF JUSTICE, FAIR PLAY AND EQUITY, I T IS RESPECTFULLY PRAYED TO HON'BLE ITAT TO RECTIFY MISTAKES AS STATED ABOVE AND JUSTICE BE DONE TO THE APPLICANT. THE FEES REQUIRED TO BE PAID HAS BEEN PAID AND CHAL LAN EVIDENCING THE PAYMENT OF RS.50/- FOR THE FEES AND THREE COPIES OF THE ORDER OF HON'BLE ITAT ARE ENCLOSED HEREWITH FOR YOUR READY R EFERENCE. 5 5 IN VIEW OF THE ABOVE STATED PECULIAR FACTS AND CIRC UMSTANCES OF OUR CASE, IT IS RESPECTFULLY PRAYED TO THE HON'BLE ITAT TO PASS APPROPRIATE ORDER AS PER THE PROVISIONS OF THE ACT AND OBLIGE. FOR THIS KINDNESS, YOUR APPLICANT IS DUTY BOUND FOR EVER PRAY AND REMAIN GRATEFUL. 2 THE LEARNED DR, ON THE OTHER HAND, CONTENDED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 3 WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND, PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE T HROUGH THE MISCELLANEOUS APPLICATION. WE FIND THAT THE WRITTEN SUBMISSIONS ALONG WITH THE MATERIAL AND EVIDENCES FILED BY THE ASSESSEE TO WHICH OUR ATTENTION HAS NOW BEEN DRAWN BY THE LEARN ED AR HAVE DULY BEEN CONSIDERED BY THIS TRIBUNAL AND THE TRIBU NAL WHILE PASSING THE ORDER WERE FULLY CONSCIOUS ABOUT THE FI LING OF THE ABOVE MATERIAL AND EVIDENCES BY THE ASSESSEE. THE R ELEVANT OBSERVATION OF THE TRIBUNAL IN PARA-13 READS AS UND ER:- 13 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN O UR CONSIDERED VIEW THE ASSESSEE HAS NOT BEEN ABLE TO SUBMIT EVIDE NCE IN SUPPORT OF THE CLAIM MADE BY IT THAT WORK IS DONE ON PIECE-MEA L BASIS; OR EACH PAYMENT IS LESS THAN RS.20,000/- OR THERE WAS NO WO RK CONTRACT. THUS THERE IS NO DISPUTE THAT ASSESSEE HAS GOT THE WORK DONE FROM THESE THREE PARTIES AND THE WORK RELATED TO EARTH FILLING AND TRANSPORTATION. WHETHER THESE THREE PARTIES DO THE WORK FOR OTHER I S IMMATERIAL SO LONG AS THESE THREE PARTIES CARRY ON THE WORK FOR THE AS SESSEE AND GET PAYMENT THEREAFTER. WITH THIS PARTY AND THE THREE P ARTIES, THE CONTRACT WILL REMAIN A WORK CONTRACT AS WORK IS ASSIGNED AND PAYMENT FOR THAT WORK IS MADE. NO CASE IS MADE OUT THAT IF FALLS WIT HIN THE EXCEPTION THAT PAYMENT IS MADE ONE TIME FOR LESS THAN RS.20,0 00/-. ACCORDINGLY, WE UPHOLD THE DISALLOWANCE MADE BY THE AO AND CONFI RMED BY LD. CIT(A). ACCORDINGLY, GROUNDS NO.5 & 6 OF THE ASSESS EE ARE REJECTED. 6 6 IN VIEW OF THE ABOVE, IF THE PRAYER MADE BY THE ASS ESSEE IN ITS MISCELLANEOUS APPLICATION IS ACCEPTED, IT WILL AMOU NT TO REVIEW OF OUR ORDER. THE LAW IS SETTLED THAT WE HAVE NO SU CH POWER. SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MIST AKE APPARENT FROM RECORD IN OUR ORDER, THE MISCELLANEOUS APPLICA TION IS HEREBY DISMISSED. 4 IN THE RESULT, THE MISCELLANEOUS APPLICATION IS D ISMISSED. ORDER PRONOUNCED IN THE COURT TODAY ON 20-04-2012 SD/- SD/- (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 20-04-2012 COPY OF THE ORDER FORWARDED TO: 1. M/S NARAYAN BUILDERS, 43, SHANKAR SOCIETY, NR. A MIKUNJ BUS STOP, NARANPURA, AHMEDABAD-380013 2. THE INCOME-TAX OFFICER, WARD-9(1), AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-XV, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD