SHRI RAHUL BHARGAVA , JAIPUR V. INCOME TAX OFFICER, WARD-4-5, JAIPUR

MA 38/JPR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8236 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 19-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ACCEPTING THIS
• Keywords: FORM 26AS
• Section: 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NO. 38/JP/2020 (ARISING OUT OF ITA NO. 1095/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2015-16 SH. RAHUL BHARGAVA C/O SHAH SURENDRA & ASSOCIATES, CHARTERED ACCOUNTANTS, 208, ANUKAMPA II, M. I. ROAD, JAIPUR CUKE VS. ITO, WARD-4(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACAPB 2679 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. SURENDRA SHAH (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (ADDL. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 19/03/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 23/03/2021 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 CO-ORDINAT E BENCH IN ITA NO. 1095/JP/2019 DATED 27/11/2019. 2. IN ITS MISC. APPLICATION, THE ASSESSEE HAS SUBMI TTED AS UNDER:- 1. IT IS SUBMITTED THAT DURING THE COURSE OF ASSES SMENT PROCEEDINGS THE LD. AO NOTICED THAT AS PER FORM NO. 26AS, THE TOTAL RECEIPTS COMES TO RS.1,20,60,751/- AND THUS OBSERVE D THAT ASSESSEE HAS DECLARED SHORT TURNOVER OF RS 22,60,739.00 . M.A. NO. 38/JP/2020 SH. RAHUL BHARGAVA, JAIPUR VS. ITO, WARD 4(2), JAIPUR 2 OUT OF THIS DIFFERENCE OF RS 22,60,739.00, DIFFEREN CE OF RS.14,06,819.00 WAS ON ACCOUNT OF DEDUCTION OF TAX ON REIMBURSEMENT OF EXPENSES BY ASIAN PAINTS LIMITED. THE BALANCE DIFFERENCE OF RS.8,53,920.00 WAS ON ACCOUNT OF CRED ITS APPEARING IN FORM 26AS FROM 10 PARTIES WHICH WERE NOT RELATED TO THE ASSESSEE'S BUSINESS. THE LD. AO ADDED THE ABOVE AMOUNT OF RS 22,60,739.0 0; BEING THE DIFFERENCE BETWEEN AMOUNT FOUND CREDITED IN FOR M 26AS AND TURNOVER DECLARED BY THE ASSESSEE U/S 44AD, TO THE TOTAL INCOME OF THE ASSESSEE. 2. THE ASSESSEE COMPANY BEFORE LD. CIT (A) FILED WR ITTEN SUBMISSIONS. THE LD. CIT(A) AFTER CONSIDERING SUBMI SSIONS FILED BY APPELLANT HELD THAT THE TURNOVER ESTIMATED BY THE A O IS CORRECT. HOWEVER IN RESPECT OF DIFFERENCE IN TURNOVER OF RS. 14,06,819.00 BEING IN THE NATURE OF REIMBURSEMENT OF EXPENSES, S HE DIRECTED THE LD AO TO APPLY RATE OF 8% ON SUCH TURNOVER . THE AS SESSEE ACCEPTED THIS AND HAS NOT CHALLENGED THE ORDER OF L D CIT(A) TO THIS EXTENT. HOWEVER IN RESPECT OF CREDITS OF 10 PARTIES, AGGREG ATING TO RS.8,53,920/- , LD CIT-(A) DID NOT GRANTED ANY RELI EF AND ADDITION WAS SUSTAINED AT RS 8,53,920.00. 3. VIDE GROUND NO 2 OF APPEAL FILED BEFORE HON'BLE ITAT , JAIPUR BENCH, JAIPUR, THE ASSESSEE CHALLENGED THE ACTION O F LD AO OF NOT APPLYING NET PROFIT RATE OF 8% ON TURNOVER OF RS 8, 53,920.00. M.A. NO. 38/JP/2020 SH. RAHUL BHARGAVA, JAIPUR VS. ITO, WARD 4(2), JAIPUR 3 4. THAT THE HON'BTE ITAT DEALT THIS GROUND IN PARA NO 5 & 6 OF ITS ORDER DATED 27.11.2019. THE GROUND WAS DISMISSED. 5. FOLLOWING FACTUAL ERROR IS APPARENT FROM THE REC ORD :- IN PARA 6 OF THE ORDER, YOUR HONOUR HAS MENTIONED T HAT CIT (A) HAS ALREADY ALLOWED THE RELIEF TO THE ASSESSEE BY A CCEPTING THIS PLEA THAT ONLY NET PROFIT RATE OF 8% ON THE DIFFERE NTIAL RECEIPT SHALL BE ADDED TO THE INCOME. THE CORRECT POSITION IS THAT OUT OF DIFFERENTIAL TU RNOVER OF RS.22,60,739/-, CIT (A) ALLOWED TO RELIEF BY WAY OF APPLYING RATE OF PROFIT @8% ON DIFFERENTIAL TURNOVER OF RS. 14,06.83 9/- ONLY. HOWEVER, ON THE BALANCE TURNOVER OF RS 8,53,920/-, HE DID NOT PROVIDED ANY RELIEF AND FULL ADDITION OF RS 8,53,92 0/- WAS SUSTAINED BY HIM. THE APPEAL WAS ALSO FILED BEFORE YOUR HONOUR IN RESPECT OF GRANTING RELIEF ON TURNOVER OF RS 8,53,9 20/.; THUS NO RELIEF WAS ALLOWED BY CIT (A) ON TURNOVER O F RS 8,53,920/- BUT YOUR HONOUR INADVERTENTLY HELD THAT RELIEF HAS BEEN GRANTED BY THE CIT(A) AND THUS THIS GROUND OF APPEAL IS NOT MA INTAINABLE AND DISMISSED THE GROUND. 6. IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE T RIBUNAL MAY BE PLEASED TO SUITABLY AMEND ITS ORDER TO RECTIFY THE AFORESAID MISTAKE WHICH IS APPARENT FROM THE RECORD. HENCE, IN THE INTEREST OF JUSTICE, YOU ARE REQUESTE D TO KINDLY CONSIDER AND ALLOW THIS PRESENT MISCELLANEOUS APPLI CATION FILED U/S 254(2) OF THE ACT. M.A. NO. 38/JP/2020 SH. RAHUL BHARGAVA, JAIPUR VS. ITO, WARD 4(2), JAIPUR 4 4. PER CONTRA, THE LD DR SUBMITTED THAT THE GROUND NO. 1 AND GROUND. NO. 2 OF THE ASSESSEES APPEAL ARE CONNECTED AND TH E TRIBUNAL WHILE DISPOSING OFF THE GROUND NO. 1 HAS SET-ASIDE THE MA TTER TO THE FILE OF THE AO, WHERE THE BENCH SO DECIDE, THE GROUND OF APPEAL NO. 2 MAY BE SET- ASIDE TO THE FILE OF THE AO. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE GROUNDS OF A PPEAL TAKEN BY THE ASSESSEE AND THE ORDER PASSED BY THE COORDINATE BEN CH, WE FIND THAT IN GROUND OF APPEAL NO.1, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS 8,53,920/- MADE BY THE AO AND WHILE DISPOSING OF F THE SAID GROUND OF APPEAL, THE COORDINATE BENCH HAS SET-ASIDE THE MATT ER TO THE RECORD OF THE AO WITH CERTAIN SPECIFIC DIRECTIONS. 6. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE AO REGARDING THE ADDITION OF THE WHOLE OF THE AMOUNT O F RS 853,920/-BEING THE DIFFERENCE BETWEEN TURNOVER DECLARED AND ENTRIE S FOUND IN FORM 26AS INSTEAD OF APPLYING THE NET PROFIT RATE OF 8% ON THE SAID AMOUNT. THE COORDINATE BENCH, WHILE DISPOSING OFF THE SAID GROUND OF APPEAL, IN PARA 6 OF ITS ORDER HAS HELD THAT THE LD CIT(A) HAS ALREADY ALLOWED THE RELIEF TO THE ASSESSEE BY ACCEPTING THE PLEA THAT O NLY NET PROFIT RATE OF 8% ON THE DIFFERENTIAL RECEIPT SHALL BE ADDED TO TH E INCOME AND HAS THUS DISMISSED THE SAID GROUND OF APPEAL. HOWEVER, ON P ERUSAL OF THE ORDER OF THE LD CIT(A), WE FIND THAT THE LD CIT(A) DIRECT ION TO APPLY NET PROFIT RATE OF 8% WAS IN CONTEXT OF RECEIPT OF RS 14,06,81 9 AND AS FAR AS ADDITION OF RS 8,53,920/- WAS CONCERNED, THE SAME W AS CONFIRMED IN TOTALITY AGAINST WHICH THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL. WE THEREFORE FIND THAT THE SAID FINDING AS EMERGING FROM THE ORDER OF THE M.A. NO. 38/JP/2020 SH. RAHUL BHARGAVA, JAIPUR VS. ITO, WARD 4(2), JAIPUR 5 LD CIT(A) HAS APPARENTLY SKIPPED THE ATTENTION OF T HE COORDINATE BENCH AND THE GROUND OF ASSESSEES APPEAL WAS DISMISSED. 7. GIVEN THAT GROUND NO. 1 AND GROUND NO. 2 ARE CON NECTED AS CONTENDED BY THE LD DR AND ACCEPTED BY THE LD AR DU RING THE COURSE OF HEARING, WE HEREBY SET-ASIDE THE MATTER PERTAINING TO GROUND NO. 2 AS WELL TO THE FILE OF THE AO TO DECIDE THE SAME ALONG WITH GROUND NO. 1. TO THIS LIMITED EXTENT, THE ORDER SO PASSED BY THE COO RDINATE BENCH STAND MODIFIED. SUBJECT TO THAT, THERE IS NO CHANGE IN T HE ORDER SO PASSED. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE ASSESSEE IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 23/03/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23/03/2021. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. RAHUL BHARGAVA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD -4(2), JAIPUR 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. 38/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR