ITO, Ward-1(1), Kolkata, Kolkata v. M/S. Abhay Carrier Pvt. Ltd., Kolkata

ITA 1692/KOL/2014 | 2005-2006
Pronouncement Date: 21-10-2016

Appeal Details

RSA Number 169223514 RSA 2014
Assessee PAN AACCA5421E
Bench Kolkata
Appeal Number ITA 1692/KOL/2014
Duration Of Justice 2 year(s) 2 month(s) 2 day(s)
Appellant ITO, Ward-1(1), Kolkata, Kolkata
Respondent M/S. Abhay Carrier Pvt. Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 21-10-2016
Appeal Filed By Department
Bench Allotted SMC
Tribunal Order Date 21-10-2016
Date Of Final Hearing 03-08-2016
Next Hearing Date 03-08-2016
Assessment Year 2005-2006
Appeal Filed On 19-08-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENC H KOLKATA BEFORE SHRI K. NARASIMHA CHARY JM & DR. A.L.SAINI AM ./ ITA NO.1692/KOL/2014 ( / ASSESSMENT YEAR :2005-2006) ITO WARD-1(1) KOLKATA VS. M/S ABHAY CARRIER PRIVAT E LIMITED 27 WESTON STREET ROOM NO.10 KOLKATA- 700012 ./ ./PAN/GIR NO. : AACCA 5421 E ( /APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : SHRI SITAL CHANDRA DAS /ASSESSEE BY : SHRI P.K.SANGHAVI / DATE OF HEARING : 06/10/2016 /DATE OF PRONOUNCEMENT 21/10/2016 / O R D E R PER DR.ARJUN LAL SAINI AM: THE CAPTIONED APPEAL FILED BY THE REVENUE PERTAININ G TO THE ASSESSMENT YEAR 2005-2006 IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV KOLKATA I N APPEAL NO.204/CIT(A)-XIV/2011-12 DATED 28 TH MARCH 2014 WHICH IN TURN ARISES OUT OF AN ORDER PASSED BY THE ASSESSING OFFICER U/S .143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT) DATED 17-12-20 07. 2. THE FACTS OF THE CASE QUA THE ASSESSEE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ON 31.10.2005 DECLARING TOTAL LOSS OF RS.14 68 330/-. THE CASE WAS SELECTED FOR SCRUTINY U/S.143(3) OF THE AC T AND THE AO HAS COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITION S. DURING THE ASSESSMENT PROCEEDINGS THE AO OBSERVED THAT THERE I S A DIFFERENCE BETWEEN THE RECEIPTS OF PAYMENT FORM BPCL AS DISCLO SED IN THE ITS DETAILS AND THE AMOUNT DISCLOSED IN THE ACCOUNTS OF THE ASSESSEE. THE ITA NO.1692/14 2 AO HAS ALSO NOTED THAT THE ASSESSEE DID NOT FURNISH THE VOUCHERS AND BILLS FOR TRIP EXPENSES TYRES & TUBES REPAIRS & M AINTENANCE AND FUEL CHARGES THEREFORE HE HAS DISALLOWED 10% OF THE TO TAL EXPENDITURE. THE AO ALSO NOTED THAT THE ASSESSEE CLAIMED AN EXPENDIT URE OF RS.2 65 480/- ON ACCOUNT OF CLAIM LOSS AND DEBITED THE SAME IN TH E PROFIT AND LOSS ACCOUNT. THE ASSESSEE DID NOT FURNISH ANY EVIDENCE IN RESPECT OF THE CLAIMS AND LOSS THEREFORE THE AO HAS DISALLOWED R S.2 65 480/-. 3. AGGRIEVED FROM THE ORDER OF AO THE ASSESSEE FILE D AN APPEAL BEFORE THE LD. CIT(A) WHO HAS PARTLY DELETED THE ADDITION MADE BY ASSESSING OFFICER. NOT BEING SATISFIED WITH THE ORDER OF CIT( A) THE REVENUE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CLT (A) IS NOT JUSTIFIED IN DELETING ADDITION OF RS.4 60 78 5/- ON ACCOUNT OF DISCREPANCIES IN RESPECT OF TRANSACTIONS WITH BPCL WITHOUT CONSIDERING THE FACT THAT THE DISCREPANCIES REMAINE D UNRECONCILED EVEN AFTER SUBMISSION OF CERTIFICATE BY THE ASSESSE E FROM THE BPCL. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CLT (A) IS NOT JUSTIFIED IN DELETING OF RS. 10 64 212/- ON ACCOUNT OF DISCREPANCIES IN RESPECT OF TRANSACTIONS WITH M/S R ELIANCE LOGISTIC LTD. IGNORING THE FACT THAT THE FIGURES SUBMITTED B Y THE ASSESSEE DO NOT TALLY WITH THE FIGURES OF THE ITS DETAILS AND T HE ASSESSEE COULD NOT FURNISH ANY LEDGER ACCOUNT IN RESPECT OF THE SA ID CONCERN DURING ASSESSMENT STAGE. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT (A) IS NOT JUSTIFIED IN RESTRICTING DISALLOWANCE OF RS. 3 66 235/-AGAINST DISALLOWANCE OF RS. 30 55 302/- MADE BY THE A.O. ON TRIP EXPENSES FUEL CHARGES REPAIR MAINTENANCE AND EXPENSES ON TY RE & TUBES WITHOUT CONSIDERING THE FACT THAT THERE IS NO MENTI ON IN THE LEDGER ACCOUNT IN RESPECT OF PAYMENTS WHETHER MADE IN CASH OR CHEQUE AND THERE IS NO MENTION OF ANY PERSON TO WHOM PAYME NTS WERE MADE. THE ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM DURING ASSESSMENT STAGE BY FURNISHING NECESSARY DETAILS AN D DOCUMENTARY EVIDENCES. 4. THAT ON THE FACTS AND CIRCUMSTANCE OF THE CASE THE LD.CLT (A) IS NOT JUSTIFIED IN DELETING DISALLOWANCE OF RS. 2 65 480/- ON ACCOUNT OF CLAIM OF LOSS WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE FAILED TO ITA NO.1692/14 3 FURNISH SUPPORTING DOCUMENTS IN SUPPORT OF ITS CLAI M OF SHORT PAYMENT RECEIVED FROM ITS CUSTOMERS. 4. THE FIRST GROUND OF APPEAL TAKEN BY THE REVENUE REL ATES TO TRANSACTION WITH BPCL RS.4 60 785/- WHICH HAS BEEN DELETED BY THE LD. CIT(A) . 4.1 BRIEF FACTS QUA THE ISSUE IS THAT THERE WAS A D IFFERENCE OF RS.4 60 785/- BETWEEN THE AMOUNT DISCLOSED IN THE I TS DETAILS AND AMOUNT DISCLOSED IN THE BOOKS OF ACCOUNTS OF THE AS SESSEE. THE ASSESSEE STATED THAT TOTAL RECEIPTS AS PER AO FROM BPCL WAS TO THE TUNE OF RS.4 95 47 169/- WHEREAS ACCORDING TO THE BOOKS OF ASSESSEE IT WAS RS.4 90 86 363/-. THE ASSESSEE MADE AN EFFORT TO RE CONCILE THE RECEIPT FROM BPCL AS PER TDS DETAILS WITH THE AMOUNT REFLE CTED IN THE LEDGER ACCOUNT MAINTAINED BY THE ASSESSEE IN THE NAME OF B PCL. IN SPITE OF FILING OF RECONCILIATION STATEMENT AND CERTIFICATE FROM BPCL STATING THE DETAILS OF THE TRANSACTION LD. AO CHOSE TO IGNORE THE RECONCILED STATEMENT AS WELL AS CERTIFICATE FROM BPCL. LD. AR FOR THE AS SESSEE HAS SUBMITTED THAT AO HAS FRAMED HIS ASSESSMENT ORDER ON THE SOLE FIGURE OBTAINED FROM ITS. HE DID NOT COMPARE WITH THE FIGURE OBTAINED FR OM BPCL. THE DETAILS AVAILABLE IN ITS IS INCOMPLETE BECAUSE THE DATA UPL OADED BY THE PARTY WAS NOT SUFFICIENT OR THE PARTY HAVE UPLOADED THE D ATA INCORRECTLY. THEREFORE THERE IS A DIFFERENCE BETWEEN THE ITS AN D THE STATEMENT FROM THE BPCL. THE ASSESSEE HAS SUBMITTED THE CERTIFICAT E FROM BPCL STATING THE ENTIRE DETAIL. MOREOVER THE FIGURE SHOWN BY TH E ASSESSEE IS MORE THAN THE FIGURE WHICH IS SHOWN IN THE ITS THEREFORE AS SESSEE IS OFFERING MORE INCOME TAX AS COMPARED TO THE ITS DETAILS. ITA NO.1692/14 4 4.2 LD. AR FOR THE ASSESSEE SUBMITTED BEFORE US THE PROFIT AND LOSS ACCOUNT BALANCE SHEET LEDGER ACCOUNT AND OTHER DE TAILS. HE EXPLAINED TO US THAT IT IS QUITE CLEAR FROM THESE DOCUMENTS AND THE RECONCILIATION STATEMENT THAT THE ASSESSEE STOOD BY HIS RIGHT AND HE HAS SHOWN THE INCOME MORE THAN WHAT IS REFLECTED IN THE ITS. LD. AR HAS ALSO RELIED IN THE CASE OF SETH GURUMUKH SINGH 12 ITR 393 (LAH) WHEREIN IT HAS BEEN HELD AS UNDER :- 'WHERE THE ITO UNDER AN ANALOGOUS PROVISION PROPOSE S TO MAKE AN ASSESSMENT IN DISREGARD OF THE MATERIAL PRODUCED BY THE ASSESSEE NATURAL JUSTICE DEMANDS THAT HE SHOULD DRAW THE ASS ESSEE'S ATTENTION TO IT AND GIVE HIM AN OPPORTUNITY TO PROD UCE EVIDENCE IN REBUTTAL. IT MAY BE NOTED THAT THE A.O IN THE DISCH ARGE OF THEIR DUTIES UNDER THE ACT RECEIVES A GOOD DEAL OF INFORMATION W HICH IS NOT AT ALL EVIDENCE ACCORDING TO ACCEPTED NOTION OF LAW. CONSE QUENTLY IT IS ONLY FAIR AND JUST THAT THE ACCURACY OR OTHERWISE O F SUCH INFORMATION WILL HAVE TO BE ASCERTAINED AND THE ONLY WAY OF DOI NG SO IS TO GIVE AN OPPORTUNITY TO THE ASSESSEE WHO CAN URGE HIS PLE A AS TO WHETHER THE ITO/AO IS MISINFORMED AT ANY RATE AFTER GIVING THIS OPPORTUNITY. THE AO/ITO WILL ALWAYS IN A BETTER POSITION TO KNOW AS TO WHAT EXTENT THE INFORMATION IS RIGHT AND WHETHER HE SHOU LD ACT UPON IT OR NOT.' 4.3 LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 4.4 HAVING HEARD THE RIVAL CONTENTIONS VARIOUS MAT ERIAL AVAILABLE ON RECORD WE ARE OF THE VIEW THAT THERE IS A MERIT IN THE SUBMISSIONS OF THE ASSESSEE AS THE PROPOSITION CANVASSED BY THE LD. A R FOR THE ASSESSEE ARE SUPPORTED BY THE ABOVE CITED JUDGMENT AND FACTS NARRATED BY HIM. AS HE HAS EXPLAINED BEFORE US THAT ITS DETAILS SHOULD NOT BE THE ENTIRE BASE TO MAKE THE ASSESSMENT. THE ASSESSEE HAS SHOWN MORE INCOME THAN WHAT IS SHOWN IN THE ITS AND HE HAS SUBMITTED A REC ONCILIATION STATEMENT ITA NO.1692/14 5 ALSO THEREFORE CONSIDERING THE ABOVE FACTUAL POSI TION WE CONFIRM THE ORDER OF THE LD. CIT(A). 4.5 IN THE RESULT APPEAL FILED BY THE REVENUE ON T HIS GROUND IS DISMISSED. 5. THE SECOND GROUND RELATES TO AMOUNT DELETED BY THE LD. CIT(A) RS.10 64 212/- ON ACCOUNT OF DISCREPANCIES IN RESPE CT OF TRANSACTIONS WITH M/S RELIANCE LOGISTIC LTD. 5.1 THE BRIEF FACTS QUA THE ISSUE IS THAT THE FIGUR ES SUBMITTED BY THE ASSESSEE IN RESPECT OF TRANSACTIONS WITH M/S RELIANCE LOGIST IC LTD DO NOT TALLY WITH THE FIGURES OF THE ITS DETAILS. T HE AO IN HIS IMPUGNED ASSESSMENT ORDER HAS OBSERVED THAT AS AN ATTEMPT T O EXPLAIN THE DIFFERENCE THE ASSESSEE FILED A STATEMENT FROM REL IANCE LOGISTICS LTD. CLAIMING THAT THE DIFFERENCE WAS RECEIVED FROM THE SAID REFINERY THROUGH RELIANCE LOGISTIC LTD. BUT THE FIGURES AVAILABLE I N THE STATEMENT OF RELIANCE LOGISTICS LTD. DO NOT TALLY WITH THE FIGUR ES IN THE ITS DETAILS AND THE FIGURE AVAILABLE IN THE LEDGER MAINTAINED BY TH E ASSESSEE IN THE NAME OF BONGAIGAON REFINERY. 5.2 LD. AR OF THE ASSESSEE HAS SUBMITTED THAT LEDGE R ACCOUNT MAINTAINED IN THE NAME OF RELIANCE LOGISTICS LTD. B Y THE ASSESSEE HAS NOT BEEN PRODUCED IN THE COURSE OF ASSESSMENT PROCE EDINGS THEREFORE THE DIFFERENCE OF RS.10 64 212/- AS MENTIONED ABOVE IS CONSIDERED TO BE THE RECEIPT OF THE ASSESSEE DURING THE FINANCIAL YE AR 2004-05. LD. AR FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSMENT IS B ASED ON SURMISE AND CONJECTURE AND AS SUCH SHOULD BE STRUCK DOWN. W HERE THE AO ITA NO.1692/14 6 CONSIDER THE MATERIAL PLACED BEFORE HIM BY AN ASSES SEE HAS NOT BEEN RELIABLE HE CANNOT PROCEED TO MAKE AN ARBITRARY AS SESSMENT IF THE AO THINKS THAT PROFITS SHOWN BY AN ASSESSEE IS NOT ACC EPTABLE WHICH IS FOR THE TAXIING AUTHORITY TO PROVE THAT THE ASSESSEE HA S MADE HIGH PROFITS. THE AO HAS TO RELATE HIS ESTIMATE TO EVIDENCE MATERIALS ON RECORDS. BUT IN THE CASE OF THE ASSESSEE NO SUCH MATERIAL WAS BROUGHT O N RECORD BY THE LD. AO TO PROVE THAT THE STATEMENT FILED BY THE ASSESSE E WAS NOT GENUINE. 5.3 ON THE OTHER HAND LD. DR FOR THE REVENUE HAS P RIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE ALREADY NO TED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREV ITY. 5.4 HAVING HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD WE ARE OF THE VIEW THAT THERE IS A MERIT IN THE SUBMISSIONS OF THE LD. AR AS THE PROPOSITION CANVASSED BY THE LD. AR OF THE ASSESSEE ARE SUPPORTED BY FACTS NARRATED ABOVE. THE LD AR EX PLAINED US THAT THE ASSESSEE HAS SUBMITTED BEFORE THE CIT(A) THE COMPLE TE RECONCILIATION WHICH SAYS THAT THERE IS NO ANY MISTAKE IN ACCOUNTS . THUS THE AO DID NOT BRING ANY COGENT EVIDENCE TO PROVE THAT THE ASSESSE ES RECONCILIATION IS NOT GENUINE. MOREOVER THE AO DID THE ADDITION BASE D ON SURMISE AND CONJECTURE. THEREFORE CONSIDERING THE ABOVE FACTUA L POSITION WE CONFIRM THE ORDER OF THE CIT(A). 5.6 IN THE RESULT APPEAL FILED BY THE REVENUE ON T HIS GROUND IS DISMISSED. 6. THE THIRD GROUND RELATES TO DELETION OF RS.30 45 30 2/- BY CIT(A) AND RESTRICTED THE DISALLOWANCE TO RS.3 66 235/-. ITA NO.1692/14 7 6.1 BRIEF FACTS QUA THE ISSUE IS THAT THE AO MADE ADHOC ADDITION ON ACCOUNT OF TRIP EXPENSES FUEL EXPENSES REPAIRS AN D MAINTENANCE EXPENSES TYRE & TUBE EXPENSES. 6.2 LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT THE INSTANT APPEAL RELATES TO ADHOC DISALLOWANCE OF RS.300 5577/- I.E. 10% OF RS.3 00 55 772/- OF BUSINESS EXPENSES UNDER THE HEA D TRIP EXPENSES FUEL EXPENSES REPAIRS AND MAINTENANCE EXPENSES TYRE & TUBE EXPENSES. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE HAS PRODUCED BOOKS OF ACCOUNTS AND FILED COPY OF LEDGER ACCOUNTS SHOWING THE DETAILS OF EXPENDITURE EXCEPT TRIP EXPENSES. PAYMENT OF ALL EX PENSES WERE MADE BY CHEQUE EXCEPT A FEW TRIP EXPENSES. THE LD AR FURTHE R ADDED THAT ASSESSING OFFICER HAS MADE ADHOC ADDITION BASED ON SURMISE AND CONJECTURE WITHOUT BRINGING ANY COGENT EVIDENCE ON RECORD. 6.3 ON THE OTHER HAND LD. DR FOR THE REVENUE HAS P RIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE ALREADY NO TED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREV ITY. 6.4 HAVING HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD WE ARE OF THE VIEW THAT THERE IS A MERIT IN THE SUBMISSIONS OF THE ASSESSEE AS THE PROPOSITION CANVASSED BY THE L D. AR OF THE ASSESSEE ARE SUPPORTED BY FACTS NARRATED BY HIM. LD AR HAS EXPLAINED THAT ALL THE EXPENSES HAVE BEEN PAID BY ACCOUNT PAYEE CHEQUE EXC EPT A FEW EXPENSES. THERE IS A COMPLETE DETAILS RECONCILIATI ON STATEMENT PROPER VOUCHERS AND BILLS ARE AVAILABLE. THEREFORE CONSID ERING THE ABOVE CITED FACTUAL POSITION WE DO NOT HESITATE TO CONFIRM THE ORDER OF THE LD. CIT(A). ITA NO.1692/14 8 6.5 IN THE RESULT APPEAL OF THE REVENUE ON THIS GR OUND IS DISMISSED. 7. THE FOURTH GROUND OF APPEAL RELATES TO DISALLOWA NCE OF RS.2 65 480/- TOWARDS CLAIM AND LOSS DEBITED TO THE PROFIT AND LOSS ACCOUNT. 7.1 BRIEF FACTS QUA THE ISSUE IS THAT THE ASSESSEE HAS ISSUED VARIOUS BILLS TO THE PURCHASER. THE PURCHASER WHILE MAKING PAYMENT TO THE ASSESSEE DEDUCTED SOME AMOUNT ON ACCOUNT OF LESS QU ANTITY RECEIVED BY THEM. IT IS A SHORT AMOUNT RECEIVED FROM CUSTOMERS. THEREFORE ASSESSEE HAS CLAIMED THE SAME AS LOSS AND DEBITED THE SAME I N THE PROFIT AND LOSS ACCOUNT. 7.2 LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT LEDG ER COPIES OF ACCOUNTS WHERE SUCH RECEIPTS WERE ALSO FILED BY THE ASSESSEE. THE AO DID NOT CARE TO VERIFY THE DETAILS ON THE REASONS F OR SUCH DETAILS WERE NOT FURNISHED. THE ADDITIONS/DISALLOWANCES WERE MADE IN AN ARBITRARY MANNER WITHOUT GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. 7.3 ON THE OTHER HAND LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE ALREADY NO TED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREV ITY. 7.4 HAVING HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD WE ARE OF THE VIEW THAT THERE IS A MERIT IN THE SUBMISSIONS OF THE ASSESSEE AS THE PROPOSITION CANVASSED BY THE L D. AR OF THE ASSESSEE ARE SUPPORTED BY FACTS NARRATED BY HIM. CONSIDERING THE SIZE OF TURNOVER PETTY LOSS IS BOUND TO INCUR. THEREFORE CONSIDERIN G THE FACTUAL POSITION CITED ABOVE WE DO NOT HESITATE TO CONFIRM THE ORDE R OF CIT(A) ITA NO.1692/14 9 7.5 IN THE RESULT APPEAL FILED BY THE REVENUE ON T HIS GROUND IS DISMISSED. 8. THE GROUND NO.5 RAISED BY THE REVENUE IS GENERA L IN NATURE THEREFORE NO ANY ADJUDICATION IS REQUIRED. 9. IN THE RESULT APPEAL OF THE REVENUE ON ALL THE GROUNDS IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21/1 0/2016. SD/ - (NARASIMHA CHARY) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; $% DATED 21/10/2016 & ()* /PRAKASH MISHRA . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER / ( ASSTT. REGISTRAR) & ' / ITAT 1. / THE APPELLANT ITO WARD-1(1) KOLKATA 2. / THE RESPONDENT.-M/S ABHAY CARRIER PVT. LTD. 3. 4 ( ) / THE CIT(A) KOLKATA. 4. 4 / CIT 5. 56 7 8 8 / DR ITAT KOLKATA 6. 7 9 / GUARD FILE. 5 //TRUE COPY//