Bhavnaben B.Patel, Ahmedabad V. The Dy.CIT.,Circle-2(1), Ahmedabad

MA 57/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8492 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 20-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Corroborative evidences

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , !.. , #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER MA NO.57/AHD/2012 ./ (IN I.T.A. NO.582/AHD/2011) ( ' ( ' ( ' ( ' ( / / / / ASSESSMENT YEAR : 2006-07) SMT. BHAVNABEN B.PATEL PROP.BHAMASA EXPORTS 104, GIDC POR RAMANGAMDI DIST.BARODA ' ' ' ' / VS. THE DCIT CIRCLE-2(1) BARODA ) #$ ./*+ ./ PAN/GIR NO. : AEUPP 9816 M ( ), / // / APPLICANT ) .. ( -.),/ RESPONDENT ) ), / #/ APPLICANT BY : SHRI TUSHAR P.HEMANI, A.R. -.), 0 / # / RESPONDENT BY : SHRI B.L. YADAV, SR. D.R. '1 0 $/ // / DATE OF HEARING : 08/06/2012 23( 0 $ / DATE OF PRONOUNCEMENT : 15/6/12 #4/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED ON 20/3/2 012, THE APPLICANT HAS POINTED OUT AN APPARENT MISTAKE IN T HE ORDER OF THE TRIBUNAL, REFERRED HEREINABOVE IN THE NOMENCLATURE, DATED 30/12/2011 IN THE FOLLOWING MANNER:- II. ON PROCEEDINGS BEFORE CIT(A) (A) COMING TO THE ORDER OF THE LEARNED CIT(A) IT M AY BE NOTED THAT THE WRITTEN SUBMISSIONS GIVEN TO HIM (PAGE 01 TO 05) OF THE PAPER BOOK A PERUSAL WILL SHOW THAT THE DIFFERENCE OF RS.8,60,82 5 BEING DIFFERENCE IN MA N O.57/AHD/2012 (IN ITA NO.582/AHD/2011) SMT. BHAVNABEN B.PATEL VS. DCIT ASST.YEAR 2006-07 - 2 - TDS CERTIFICATE AND THE GROSS RECEIPT AS A PROFIT & LOSS ACCOUNT HAS BEEN WHOLLY AND FULLY EXPLAINED AND RECONCILED BY FILING ENCLOSURES BEFORE HIM. (B) DESPITE THE FACTS ON RECORD BEFORE THE LEARNED CIT(A) HE HAS MENTIONED IN HIS APPELLATE ORDER AS UNDER: 'BEFORE ME COPIES OF TDS CERTIFICATES AND COPIES OF LEDGER ACCOUNT OF 'BUSINESS AUXILIARY TAX' HAS BEEN FILED WHICH WE RE BEFORE THE ASSESSING OFFICER ALSO. HOWEVER, THESE ARE NO EVIDE NCE TO SUBSTANTIATE THAT THE BILLS WERE INCLUSIVE OF SERVI CE TAX AND WHICH WAS PAID SEPARATELY. NO EVIDENCE HAS BEEN BROUGHT B EFORE ME TO WARRANT ANY INTERFERENCE IN ASSESSING OFFICER'S FI NDINGS. THIS GROUND IS DISMISSED.' (C) A PERUSAL OF THE PAPER BOOK BEFORE YOUR HONOU RS WILL SHOW THAT IN WRITTEN SUBMISSIONS DATED 22-10-2010 BEFORE CIT(A) AS MENTIONED IN PAGE 03, ALL ENCLOSURES WERE GIVEN WITH FULL DETAIL S REGARDING RECONCILIATION OF TDS BY WAY OF ANNEXURE 'A' TO ANN EXURE 'E' WERE FILED BEFORE HIM. (D ) IN THE SAID WRITTEN SUBMISSIONS DETAILS AND BREAK UP OF SALES SERVICE TAX, SALES AS PER TDS CERTIFICATE ETC. WERE SEPARA TELY AND DISTINCTLY SHOWN, CLARIFIED AND PERSONALLY DISCUSSED ON BEHA LF OF YOUR APPELLANT. III. PROCEEDINGS BEFORE HON. TRIBUNAL. . (A) BEFORE HON. TRIBUNAL RECONCILIATION STATE MENT NO.08 OF THE PAPER BOOK WAS INADVERTENTLY AND BY OVERSIGHT LEFT OUT BY THE CLERK AND AS PER LETTER ON BEHALF OF YOUR APPELLANT DATED 22/1 2/11 THE SAME WAS FILED TO THE HON. TRIBUNAL AND DR AND AT THE TIME OF HEARING OF APPEAL IT WAS EXPLAINED THAT THE RECONCILIATION AT ITEM NO. 1 TO 11 IS SUPPORTED BY REFERENCE TO STATEMENT (A) TO (F) AND WITH SUPPORTI NG EVIDENCES/CERTIFICATE ETC, AT PAGE 1 TO 71. (B) AT THE TIME OF HEARING BEFORE THE HON. TRI BUNAL IT WAS POINTED OUT THAT OUT OF THE TOTAL OF RS.8,60,825 ONLY RS.33,044 AS PER DETAILS PAGE 72 OF PAPER BOOK COULD NOT BE RECONCILED IT BEING IN NATU RE OF SMALL DIFFERENCE. IN OTHER WORDS OUT OF RS.8,60,825 YOUR APPELLANT CO ULD EXPLAIN AND RECONCILE THE ENTIRE DIFFERENCE EXCEPT MEAGER AMOUN T OF RS.33,044 WHICH IS RECORDED BY THE HON. TRIBUNAL IN THE ORDER UNDER REFERENCE IN PARA 5 OF THE ORDER. THE HON. TRIBUNAL AT THE TIME OF HEARING ON THE RECONCILIATION STATEMENT, FOR THE PURPOSES OF ARRIVING AT THE DECI SION AGAINST THE APPELLANT, HAVE NOT CONSIDERED THE VOLUMINOUS DATA AND INFORMATION FILED MA N O.57/AHD/2012 (IN ITA NO.582/AHD/2011) SMT. BHAVNABEN B.PATEL VS. DCIT ASST.YEAR 2006-07 - 3 - ALONGWITH THE RECONCILIATION STATEMENT WHERE FOR IN EACH AND EVERY ITEM ITEM IN STATEMENT VOUCHERS OF TDS CERTIFICATE IN FO RM NO.L6A ETC. HAVE BEEN FILED. 2. IN THE LIGHT OF THE ABOVE MISCELLANEOUS PETITION , LD.AR MR.TUSHAR P.HEMANI HAS ARGUED BEFORE US THAT ALTHOUGH THE SA ID RECONCILIATION AND SUPPORTING EVIDENCES WERE FILED BEFORE THE TRIBUNAL THROUGH A COMPILATION CONTAINING 87 PAGES DATED 16/12/2011, I .E. MUCH BEFORE THE DATE OF ORDER, AND THAT COMPILATION WAS CONSIDERED BY THE RESPECTED TRIBUNAL, HOWEVER, THE RELEVANT RECONCILIATION WAS NOT CONSIDERED. IT WAS WRONGLY DECIDED BY THE TRIBUNAL THAT NO EVIDENC E OR DOCUMENT HAVE BEEN REFERRED IN SUPPORT OF THE RECONCILIATION STAT EMENT. IT HAS ALSO BEEN INADVERTENTLY COMMENTED BY THE RESPECTED TRIBUNAL T HAT THERE WAS NO JUSTIFICATION TO ADMIT RECONCILIATION STATEMENT AT THE STAGE OF THE SECOND APPEAL WHICH WAS NEVER FILED BEFORE THE LOWER AUTHO RITIES. THE FACT WAS THAT THE SAID RECONCILIATION WAS VERY MUCH BEFORE T HE LD.CIT(A) AS WELL. 3. FROM THE SIDE OF THE REVENUE LD.SR.DR MR.B.L.YADAV APPEARED AND SUPPORTED THE VIEW TAKEN BY THE TRIBUNAL PRIMAR ILY ON THE GROUND THAT THE EVIDENCES WHICH WERE GIVEN BEFORE THE REVE NUE AUTHORITIES COULD BE ENTERTAINED AT THE STAGE OF SECOND APPEAL, HOWEVER, THE ASSESSEE HAS ATTEMPTED TO FILE CERTAIN EVIDENCES BEFORE THE TRIBUNAL WHICH WERE CORRECTLY IGNORED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND ON PERUSAL OF THE RELEVANT ORDERS, IT IS WORTH TO MENTION THAT TH E DIFFERENCE IN TDS DEDUCTION WAS ALLEGEDLY ON ACCOUNT OF SERVICE TAX A MOUNT. WE HAVE MA N O.57/AHD/2012 (IN ITA NO.582/AHD/2011) SMT. BHAVNABEN B.PATEL VS. DCIT ASST.YEAR 2006-07 - 4 - NOTED THAT VIDE PARA 2.3, LD.CIT(A) HAS NOTED THAT THE COPIES OF TDS CERTIFICATE AND THE COPIES OF THE LEDGER ACCOUNT HA VE BEEN FILED BEFORE THE REVENUE AUTHORITIES AS ALSO BEFORE THE LD.CIT(A). T HERE WAS A RECONCILIATION BUT THAT WAS NOT CONSIDERED BY LD.CI T(A) ON THE GROUND THAT THERE WAS NO EVIDENCE TO CORROBORATE THE SAID RECONCILIATION. RATHER, LD.CIT(A) HAS MENTIONED THAT THERE WAS NO EVIDENCE TO SUBSTANTIATE THAT THE BILLS WERE INCLUSIVE OF SERVICE TAX WHICH WAS F ACTUALLY PAID SEPARATELY. THAT FINDING OF LD.CIT(A) WAS APPROV ED BY THE RESPECTED CO-ORDINATE BENCH BY COMMENTING THAT THERE WAS NO J USTIFICATION TO INTERFERE WITH THE SAID ORDER OF LD.CIT(A). HOWEVE R, THE ATTEMPTS MADE BY THIS APPLICANT MUST NOT BE BRUSHED ASIDE. THI S ASSESSEE HAS PLACED CERTAIN FACTS BEFORE THE AO BUT IT WAS NOT TO HIS S ATISFACTION, HENCE THE DIFFERENCE WAS TAXED IN THE HANDS OF THE ASSESSEE. THEREAFTER, BEFORE LD.CIT(A) THE ASSESSEE HAS FILED A RECONCILIATION A ND THAT TOO WAS BRUSHED ASIDE THOUGH AS PER ASSESSEE THE RECONCILIATION WAS DULY SUPPORTED BY CORROBORATIVE EVIDENCES. FINALLY, WHEN THE SAID IS SUE HAD COME UP BEFORE THE TRIBUNAL A RECONCILIATION WITH CERTAIN A NNEXURES WERE FILED BUT THOSE WERE NOT ADMITTED AT THAT STAGE OF APPEAL SINCE THAT WAS NEVER FILED BEFORE THE LOWER AUTHORITIES. HOWEVER, ONE F ACT IS NOT IN DISPUTE THAT SAID RECONCILIATION STATEMENT WAS NOTICED BY T HE TRIBUNAL, WHEREIN THE DIFFERENCE OF RS.33,044/- WAS ACCEPTED TO THE ASSESSEE AND THAT DIFFERENCE WAS DULY NOTED BY THE RESPECTED CO-ORDIN ATE BENCH IN THE IMPUGNED ORDER. FOR DECIDING THIS MISCELLANEOUS PETITION, WE MAY LIKE TO EXPRESS THAT AS FAR AS THE FACTS OF THE CASE IS CONCERNED, THE SAME EXISTED WITHOUT ANY CHANGE FROM THE DAY ONE UPTO AN Y STAGE OF PROCEEDINGS. THE SUBMISSION OF RECONCILIATION IS NO THING BUT A MA N O.57/AHD/2012 (IN ITA NO.582/AHD/2011) SMT. BHAVNABEN B.PATEL VS. DCIT ASST.YEAR 2006-07 - 5 - CLARIFICATION ON THOSE VERY FACTS WHICH ARE ALREADY IN EXISTENCE. THE FACT ABOUT THE INCLUSION OF SERVICE TAX IN THE BILLS CAN BE EXAMINED BEING THE BASIC FACT WHICH WAS RELIED UPON BY THE ASSESSEE AT ANY STAGE OF PROCEEDINGS. THEREFORE, AT PRESENT, CONSIDERING TH E OBSERVATION OF THE TRIBUNAL IN THE IMPUGNED ORDER, IT IS FAIR AND REAS ONABLE FIRST TO RECALL THIS ORDER, SO THAT THE TRIBUNAL CAN PONDER UPON THE ADM ISSIBILITY OF THE RECONCILIATION ALONG WITH ITS ANNEXURE AND IF FOUND CORRECT CAN PROCEED THEREAFTER AS PER LAW. SINCE THE EXISTENCE OF REC ONCILIATION ALONG WITH THE ANNEXURES WAS MISTAKENLY OVERLOOKED BY THE TRIB UNAL, THEREFORE WE HEREBY RECALL THIS ORDER AND DIRECT THE REGISTRY TO POST THIS APPEAL FOR HEARING AS PER THE RULES. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS ALLOWED. SD/- SD/- ( !.. ) ( ) #$ ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 15/ 6 /2012 !..', .'../ T.C. NAIR, SR. PS #4 0 -5 6#5( #4 0 -5 6#5( #4 0 -5 6#5( #4 0 -5 6#5(/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-II, BARODA 5. 5:; -' , , / DR, ITAT, AHMEDABAD 6. ; <1 / GUARD FILE. #4' #4' #4' #4' / BY ORDER, .5 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD