Amit Sharma, Faridabad V. ITO, New Delhi

MA 162/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7189 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: VK SABHARWAL
• Keywords: Rectification of order; Corroborative evidences
• Section: 43B; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH DELHI BENCH DELHI BENCH DELHI BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI R.P.TOLANI, JM AND SHRI B.C.MEENA, AM MISCELLANEOUS APPLICATION NO.162/DEL/2011 MISCELLANEOUS APPLICATION NO.162/DEL/2011 MISCELLANEOUS APPLICATION NO.162/DEL/2011 MISCELLANEOUS APPLICATION NO.162/DEL/2011 (IN ITA NO.1664/DEL/2010) (IN ITA NO.1664/DEL/2010) (IN ITA NO.1664/DEL/2010) (IN ITA NO.1664/DEL/2010) ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2006 2006 2006 2006- -- -07 0707 07 SHRI AMIT SHARMA, SHRI AMIT SHARMA, SHRI AMIT SHARMA, SHRI AMIT SHARMA, HOUSE NO.1753, SECTOR HOUSE NO.1753, SECTOR HOUSE NO.1753, SECTOR HOUSE NO.1753, SECTOR- -- -16, 16, 16, 16, FARIDABAD, FARIDABAD, FARIDABAD, FARIDABAD, HARYANA. HARYANA. HARYANA. HARYANA. PAN : AJMPK4740J. PAN : AJMPK4740J. PAN : AJMPK4740J. PAN : AJMPK4740J. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -9(4), 9(4), 9(4), 9(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.K.SABHARWAL, ADVOCATE. RESPONDENT BY : MS.Y.KAKKAR, SR.DR. ORDER ORDER ORDER ORDER PER R.P.TOLANI, JM PER R.P.TOLANI, JM PER R.P.TOLANI, JM PER R.P.TOLANI, JM : : : : THIS IS ASSESSEES MISCELLANEOUS APPLICATION REQUE STING FOR RECTIFICATION OF MISTAKE WHICH HAS CREPT IN THE ORD ER OF THE TRIBUNAL DATED 28 TH JANUARY, 2011 WHILE DECIDING THE GROUND ABOUT DIFF ERENCE IN THE GROSS CONTRACTUAL RECEIPTS AS DECLARED IN PROFI T & LOSS ACCOUNT AND TDS CERTIFICATES WHICH WAS ATTRIBUTABLE TO DIFFEREN CE IN RECOVERY OF ESI AND PF AMOUNTING TO `15,00,237/-. IT IS PLEADED TH AT WHILE DECIDING THE ISSUE IN PARAGRAPH 6 OF THE ORDER, THE TRIBUNAL HAS DECIDED THE SAME AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT THE CASE OF THE AS SESSEE IS THAT EVEN IF AN ADDITION IS TO BE MADE ON ACCOUNT OF DIF FERENCE IN THE TOTAL RECEIPTS OF THE ASSESSEE AS PER TDS CERTIFICA TES AND P & L ACCOUNT, THEN ALSO DEDUCTION HAS TO BE ALLOWED ON A CCOUNT OF PAYMENT OF PF & ESI BY THE ASSESSEE. WE ARE IN AGR EEMENT WITH THE LEARNED AR OF THE ASSESSEE THAT DEDUCTION IS TO BE ALLOWED TO THE ASSESSEE ON ACCOUNT OF PAYMENT OF PF & ESI BY T HE ASSESSEE BUT WE FIND THAT IT IS NOTED BY THE LEARNED CIT(A) THAT THE MA-162/DEL/2011 2 ASSESSEE COULD NOT PRODUCE ANY EVIDENCE IN SUPPORT OF THE CONTENTIONS RAISED IN THE RECONCILIATION STATEMENT. IN THE ABSENCE OF EVIDENCE OF PAYMENT OF PF & ESI, DEDUCTI ON IS NOT ALLOWABLE IN VIEW OF THE PROVISIONS OF PF & ESI, DE DUCTION IS NOT ALLOWABLE IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE I.T.ACT. IT WAS SUBMITTED BY THE ASSESSEE BEFORE LEARNED CIT (A) THAT THE DOCUMENTARY EVIDENCE WAS DESTROYED IN LABOUR STRIKE AND RIOTS. BUT IT IS ALSO NOTED BY THE LEARNED CIT(A) THAT NOT EVEN FIR COPY WAS PRODUCED IN SUPPORT OF THIS CONTENTION THAT REC ORDS WERE DESTROYED IN STRIKE AND RIOTS. BEFORE US ALSO, NO SUCH EVIDENCE IS FURNISHED. EVEN IF IT IS A FACT THAT PRIMARY DOCUM ENTS I.E. PAYMENT CHALLANS OF PF AND ESI WERE SO DESTROYED, T HE ASSESSEE COULD HAVE PRODUCED OTHER EVIDENCES SUCH AS CERTIFI CATES FROM THE BANK THAT PAYMENTS OF PF & ESI WERE MADE DURING THIS YEAR OUT OF DEBIT IN THE BANK ACCOUNT OF THE ASSESSEE. CERTIFIED COPY OF PAYMENT CHALLANS COULD HAVE PRODUCED BEFORE OBTA INING THE SAME FROM PF & ESI AUTHORITIES BECAUSE A COPY OF SU CH CHALLAN IS REQUIRED TO BE SUBMITTED WITH THESE AUTHORITIES EVE RY MONTH. THE ASSESSEE HAS NOT PRODUCED ANY SUCH EVIDENCE BEF ORE THE AUTHORITIES BELOW OR EVEN BEFORE US. IT WAS ALSO N OT A REQUEST OF THE ASSESSEE BEFORE US THAT IF ONE MORE OPPORTUNITY IS PROVIDED TO THE ASSESSEE, THE ASSESSEE CAN PRODUCE SUCH EVID ENCE. WITHOUT ANY EVIDENCE OF PAYMENT OF PF & ESI BY THE ASSESSEE, NO DEDUCTION IS ALLOWABLE TO THE ASSESSEE ON THIS ACCO UNT AS PER THE PROVISIONS OF SECTION 43B. HENCE, WE DO NOT FIND A NY REASON TO INTERFERE IN THE ORDER OF THE LEARNED CIT(A) ON THI S ISSUE. THE ISSUE ABOUT INTEREST U/S 234B IS CONSEQUENTIAL. 2. ACCORDING TO THE LEARNED COUNSEL, THE OBSERVATIO N OF THE TRIBUNAL IS FACTUALLY NOT CORRECT FOR WHICH REFERENCE IS INV ITED TO PAPER BOOK FILED BY THE ASSESSEE WHICH WAS FILED DURING THE COURSE O F ORIGINAL APPEAL WHICH CONTAINS THE DETAILS OF TDS CERTIFICATES, ESI & PF, CHALLANS ABOUT DEPOSITS OF ESI AND PF, CHART THEREOF, RECONCILIATI ON OF CONTRACTUAL RECEIPTS, COPY OF THE LETTER DATED 12.10.2009 ADDRE SSED TO THE INCOME TAX OFFICER EXPLAINING THE DIFFERENCE IN THE CONTRA CTUAL RECEIPTS. COPIES OF ACCOUNTS FROM M/S ARVIND AUTOMOTIVE INDUS TRIES, M/S CENTURY NF CASTING AND M/S MITHABI LAMPS (P) LTD. CONFIRMIN G THEIR TDS, SERVICE CHARGES, WAGES AND BILLS, COPY OF REJOINDER TO REMAND REPORT FILED BEFORE THE CIT(A) DURING THE COURSE OF HEARIN G OF THE APPEAL AND COPIES OF BANK STATEMENTS CONFIRMING THE PAYMENT OF ESI AND PF MA-162/DEL/2011 3 THROUGH ACCOUNT PAYEE CHEQUES. FROM THE ORDER OF T HE TRIBUNAL, IT EMERGES THAT THE PAPER BOOK FILED BY THE ASSESSEE W AS NOT REFERRED AT ALL WHICH HAS LED TO THE ABOVE OBSERVATION OF THE T RIBUNAL THAT NO EVIDENCE WAS FILED BY THE ASSESSEE. SINCE THE ASSE SSEE HAS ATTACHED ALL THE CHALLANS OF PF & ESI, THE FINDING THAT DEDU CTION U/S 43B CANNOT BE ALLOWED TO THE ASSESSEE DUE TO WANT OF EVIDENCE IS FACTUALLY INCORRECT. THE LEARNED COUNSEL CONTENDS THAT THE T RIBUNAL HAS RENDERED THE ABOVE ORDER WITHOUT CONSIDERING THE EV IDENCE WHICH CONTAINS ALL THE SUPPORTING EVIDENCE, THE ORDER MAY BE RECALLED. 3. THE LEARNED DR IS HEARD WHO CONTENDED THAT THE A RGUMENT OF THE ASSESSEE AMOUNTS TO REVIEW OF THE ORDER. THEREFORE , THE PETITION MAY BE DISMISSED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE PER USED THE MATERIAL ON RECORD. FROM THE RECORDS, IT EMERGES T HAT A PAPER BOOK CONTAINING 142 PAGES WAS FILED BY THE ASSESSEE. FR OM THE SAID PAPER BOOK, IT EMERGES THAT THE EVIDENCE AS LISTED ABOVE IN THE ASSESSEES MISCELLANEOUS APPLICATION WAS ON RECORD. THE TRIBU NAL HAS PASSED THE ORDER UNDER THE IMPRESSION THAT THE ASSESSEE HAS NO T FILED ANY EVIDENCE WHICH EMERGES FROM THE CONTENTS OF PARAGRA PH 6 REFERRED TO ABOVE. 5. SINCE FROM THE RECORD IT IS CLEAR THAT THE PAPER BOOK WAS FILED BY THE ASSESSEE, THE OBSERVATION OF THE TRIBUNAL THAT NO EVIDENCE WAS FILED IS NOT SUPPORTED BY RECORD. IN OUR CONSIDERE D VIEW, THE OBSERVATIONS OF THE TRIBUNAL CONSTITUTED MISTAKE AP PARENT FROM THE RECORD. WE ARE UNABLE TO AGREE WITH THE LEARNED DR THAT IT AMOUNTS TO REVIEW OF THE ORDER AS NECESSARY EVIDENCE WAS NOT C ONSIDERED BY THE TRIBUNAL. IN VIEW THEREOF, WE ALLOW THE ASSESSEES MISCELLANEOUS APPLICATION AND RECALL THE IMPUGNED ORDER. THE REG ISTRY IS DIRECTED TO MA-162/DEL/2011 4 FIX THE APPEAL OF THE ASSESSEE FOR HEARING IN DUE C OURSE UNDER INTIMATION BY REGISTERED POST TO THE PARTIES. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 17 TH NOVEMBER, 2011. SD/- SD/- ( (( (B.C.MEENA) B.C.MEENA) B.C.MEENA) B.C.MEENA) (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI (R.P.TOLANI) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 17.11.2011 VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR