NEW EMPIRE TEXTILES, V. ASST CIT 4(3),

MA 370/MUM/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9871 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 08-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N M PORWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, B, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT (MZ) AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 370/MUM/2012 ARISING OUT OF : ITA NO.7235/M/2007 ASSESSMENT YEAR : 2003-04 NEW EMPIRE TEXTILES PROCESSORS PVT. LTD. 51/53, TEL GALI GROUND FLOOR, VITHALWADI KALBADEVI ROAD MUMBAI-400 002. PAN NO.: AAACN 7363 A ACIT 4(3), AAYAKAR BHAVAN, MUMBAI (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI N.M. PORWAL RESPONDENT BY : SHRI MOHIT JAIN DATE OF HEARING : 14.12.2012 DATE OF PRONOUNCEMENT : 04.01.2013 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE FOR AMENDMENT/RECALL OF THE ORDER DATED 30.3.2010 OF TH E TRIBUNAL IN ITA NO.7235/MUM/2007. THE MISTAKE POINTED OUT IS IN RE LATION TO GROUND NO.2 OF THE ORDER OF THE TRIBUNAL. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FOR TH E RELEVANT YEAR HAD CLAIMED TRANSPORTATION CHARGES OF RS.45,87,215/- OF WHICH A SUM OF RS.20,21,231/- RELATED M/S. KARAN TRANSPORT (IN SHO RT M/S. KT). THE ENQUIRY MADE BY AO SHOWED THAT THE PROPRIETOR MR. P ARATAP LALCHAND AGNANI OF KARAN TRANSPORT WAS NOT TRACEABLE NOR COU LD THE ASSESSEE PRODUCE HIM. ON ENQUIRY, THE AO NOTED THAT SOME OF THE CHEQUES ISSUED MA NO.370/M/12 ARISING OUT OF ITA NO. 7235/M/07 A.Y:03-04 2 BY THE ASSESSEE HAD BEEN DEPOSITED IN THE NAME OF S HRI DHARMENDRA B. DUBEY IN RESPECT OF PARSIK JANTA SAHAKARI BANK LTD. THE AMOUNT DEPOSITED IN THIS ACCOUNT WAS RS.3,54,925/-. THE AS SESSEE EXPLAINED THAT M/S. KT HAD PROVIDED SERVICES AND CHEQUES WERE GIVEN TO THE PROPRIETOR AND ASSESSEE WAS NOT AWARE OF DHARMEDRA DUBEY. THE AO HOWEVER DISALLOWED THE ENTIRE TRANSPORT CHARGES IN RELATION TO M/S. K.T. IN APPEAL, CIT(A) NOTED THAT NO ACCOUNTS HAD BEEN M AINTAINED BY MR. PARATAP LALCHAND AGNANI AND FULL DETAILS OF WORK DONE WERE NOT INDICATED IN THE BILLS. IT WAS ALSO NOTED BY HIM TH AT DHARMENDRA DUBEYS IDENTITY COULD NOT BE ESTABLISHED. THEREFORE, CIT(A ) CONFIRMED THE DISALLOWANCE IN RELATION TO THE AMOUNT DEPOSITED OF RS.3,45,925/- IN THE NAME OF SHRI DUBEY. IN FURTHER APPEAL, THE TRIB UNAL NOTED THAT THERE WAS NO DISPUTE THAT M/S. KT HAD RENDERED SERVICES A ND DISPUTE WAS ONLY IN RESPECT OF GENUINENESS OF PAYMENTS WHICH HAD BEE N CREDITED IN THE BANK ACCOUNT OF DHARMENDRA DUBEY. THE TRIBUNAL ALSO NOTED THAT IT WAS NOT EXPLAINED AS TO HOW SOME OF THE CHEQUES GOT CRE DITED IN THE ACCOUNT OF DHARMENDRA DUBEY. THE IDENTITY OF DHARMENDRA DUB EY WAS NOT ESTABLISHED EITHER BY SHRI AGNANI OR BY THE ASSESSE E. THE TRIBUNAL, THEREFORE, CONFIRMED THE DISALLOWANCE ON ACCOUNT OF PAYMENT MADE TO SHRI DHARMENDRA DUBEY BEING FOR NOT GENUINE BUSINES S PURPOSE. AGGRIEVED BY THE DECISION OF THE TRIBUNAL, THE ASSE SSEE HAS FILED THE MISCELLANEOUS APPLICATION. 3. BEFORE US, THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD MADE THE PAYMENT BY CHEQUE TO MR. PARATAP LALCH AND AGNANI WHO HAD DISCOUNTED SOME OF THE CHEQUES TO SUB-CONTRACTO RS AS THEY COULD NOT WAIT FOR THE PAYMENTS DUE TO FINANCIAL PROBLEMS WHI CH WAS CLEAR FROM THE STATEMENT OF SHRI AGNANI PLACED AT PAGE-202 OF THE PAPER BOOK . THEREFORE, IT HAD BEEN EXPLAINED AS TO HOW THE CHEQ UES COULD HAVE GOT CREDITED IN THE ACCOUNT OF SHRI DUBEY. IT WAS ACCOR DINGLY SUBMITTED THAT MA NO.370/M/12 ARISING OUT OF ITA NO. 7235/M/07 A.Y:03-04 3 THERE WAS AN APPARENT MISTAKE IN THE ORDER OF THE T RIBUNAL WHICH SHOULD BE RECTIFIED. THE LD. DR ON THE OTHER HAND SUBMITT ED THAT THE TRIBUNAL HAD PASSED A REASONED AND SPEAKING ORDER AND IT HAD NOT POWER TO REVIEW ITS OWN DECISION. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE M ATTER CAREFULLY. THE DISPUTE RAISED BEFORE THE TRIBUNAL WAS ALLOWABI LITY OF TRANSPORT CHARGES TO THE EXTENT FOUND CREDITED IN THE NAME OF SHRI DHARMENDRA DUBEY. THE FINDING OF THE CIT(A) THAT SHRI AGNANI, PROPRIETOR OF M/S. KARAN TRANSPORT HAD NOT MAINTAINED ANY ACCOUNT AND THAT FULL DETAILS OF TRANSPORT WORK DONE HAD NOT BEEN INDICATED IN THE B ILLS, HAD NOT BEEN CONTROVERTED BEFORE THE TRIBUNAL. THE IDENTITY OF S HRI DHARMENDRA DUBEY COULD ALSO NOT BE ESTABLISHED. THEREFORE, PART OF T HE EXPENDITURE RELATING TO AMOUNTS CREATED IN THE ACCOUNT OF SHRI DHARMENDR A DUBEY HAD BEEN CONSIDERED AS NOT GENUINE EXPENDITURE BY CIT(A). TH E TRIBUNAL CONFIRMED THE ORDER OF CIT(A) AFTER OBSERVING THAT THE IDENTI TY OF SHRI DHARMENDRA DUBEY WAS NOT ESTABLISHED AND IT WAS NOT EXPLAINED AS TO HOW CHEQUES ISSUED IN THE NAME OF SHRI AGNANI OR M/S. KT GOT CR EDITED IN THE ACCOUNT OF SHRI DHARMENDRA DUBEY. THE TRIBUNAL HAD CONFIRME D THE DISALLOWANCE. THE LD. AR IN THE MISCELLANEOUS APPLI CATION HAS POINTED OUT THAT SHRI AGNANI IN THE STATEMENT HAD EXPLAINED THAT SOME OF THE CHEQUES HAD BEEN DISCOUNTED TO SUB-CONTRACTORS WHO WERE PRESSING FOR PAYMENT. THEREFORE, THESE CHEQUES COULD HAVE GOT CR EDITED IN THE ACCOUNT OF SHRI DUBEY. WE HOWEVER FIND THAT EVEN IF THERE WAS SOME EXPLANATION, THE TRIBUNAL HAD NOT CONFIRMED THE ADD ITION ONLY ON THE GROUND OF NO EXPLANATION BUT ALSO ON THE GROUND THA T IDENTITY OF DUBEY WAS NOT ESTABLISHED, AND FULL DETAILS OF TRANSPORT WORK HAD NOT BEEN GIVEN. THEREFORE, EXPLANATION EVEN IF GIVEN WAS NOT VERIFIABLE. WE THEREFORE DO NOT A FIND ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL MA NO.370/M/12 ARISING OUT OF ITA NO. 7235/M/07 A.Y:03-04 4 IN CONFIRMING THE DISALLOWANCE. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN DECISION AND, THEREFORE, THE MISCELLANEOUS APPL ICATION IS REJECTED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION STA NDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.01.2013 SD/- SD/- (D. MANMOHAN) ( RAJENDRA SINGH ) VICE PRESIDENT ACCOUNT ANT MEMBER MUMBAI, DATED : 04.01.2013. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.