SUNDARDAS KATARIA, MUMBAI v. DCIT CIR 3, THANE

ITA 1711/MUM/2010 | 2006-2007
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 171119914 RSA 2010
Bench Mumbai
Appeal Number ITA 1711/MUM/2010
Duration Of Justice 1 year(s) 27 day(s)
Appellant SUNDARDAS KATARIA, MUMBAI
Respondent DCIT CIR 3, THANE
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 31-03-2011
Date Of Final Hearing 23-03-2011
Next Hearing Date 23-03-2011
Assessment Year 2006-2007
Appeal Filed On 04-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI B.RAMAKOTAIA H (A.M) ITA NO.1711/MUM/2010(A.Y. 2006-07) SUNDER DAS KATARIA 103 FIRST FLOOR LANDMARK ARCADE LOUIS WADI NEAR NITIN CO. SIGNAL E.E. HIGHWAY THANE (W)- 400 602. PAN:AEYPK 2729N (APPELLANT) VS. THE DCIT CIRCLE 3 THANE. APPELLANT BY : SHRI AJEET MANWANI RESPONDENT BY : SHRI JITENDRA YADAV ORDER PER N.V.VASUDEVAN J.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 30/11/2009 OF CIT(A)1 THANE RELATING TO ASSESSMENT YEAR 2006- 07. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS FOLLOWS: 1. LD. CIT(A) HAS ERRED IN UPHOLDING THE PART ADDI TIONS IN RESPECT OF UNPROVED TRANSPORT CHARGES IN SPITE OF SUBMISSION O F BILLS CONFIRMATIONS TDS CERTIFICATES AND PAYMENT MADE BY ACCOUNT PAYEE CHEQUES. 2. LD. CIT(A) HAS ARBITRARILY IGNORED THE DECISIONS CITED BY THE APPELLANT IN SUPPORT OF HIS CASE. 3. LD. CIT(A) HAS NOT CONSIDERED THE FACTS AND CIRC UMSTANCES OF THE CASE WHICH WARRANTED ALLOWING THE TRANSPORT CHARGE S OF 3 04 210/- AS EXPENDITURE WHEN MOST OF THE PAYEES HAVING CONF IRMED THE RECEIPT OF SUCH AMOUNTS AND LD. CIT(A) HAS DELETED THOSE AD DITIONS. 2. THE ASSESSEE IS A FIRM. IT CARRIES ON BUSINESS UNDER THE NAME AND STYLE M/S. MEGHDOOT TRANSPORT WHICH IS ENGAGED IN THE BUSINESS OF ITA NO.1711/MUM/2010(A.Y. 2006-07) 2 TRANSPORTATION. THE AO NOTICED THAT THE ASSESSEE H AD DEBITED IN THE P&L ACCOUNT A SUM OF RS. 2 18 20 649/- ON ACCOUNT OF TR ANSPORTATION CHARGES PAID. THE AO ISSUED NOTICE UNDER SECTION 133(6) OF THE INCOME TAX ACT 1961 (THE ACT) TO NINE PARTIES TO WHOM VARIOUS SUMS WERE PAID ON ACCOUNT OF TRANSPORTATION CHARGES IN ALL TOTALING RS. 41 20 79 8/-. THOSE LETTERS SENT BY THE AO WERE RETURNED BY THE POSTAL AUTHORITIES WITH OUT SERVICE. THE AO DEPUTED THE INSPECTOR TO SERVE NOTICES IN PERSON BU T THE INSPECTOR REPORTED THAT NONE OF THE PARTIES WERE AVAILABLE AT THE ADDR ESS GIVEN BY THE ASSESSEE. THE AO THEREFORE DISALLOWED THE CLAIM FOR DEDUCTIO N OF EXPENSES TO THE OF RS.41 20 798/-. 3. ON APPEAL BY THE ASSESSEE THE ADDITION WAS RESTR ICTED BY CIT(A) OF A SUM OF RS.3 62 870/-. THE DETAILS OF ADDITION SUS TAINED BY THE CIT(A) ARE AS FOLLOWS: S.NO. NAME OF PARTY AMOUNT SUPPORTINGS REASON FOR N OT ALLOWING 1. UMESH PATIL 1 48 440 BILLS CONFIRMATIONS PAN DETAILS COPY OF I.T. RETURN FILED. DID NOT ATTEND & COPY OF HIS BANK ACCOUNT NOT PRODUCED. 2. MAYUR TRANSPORT 59 309 BILLS CONFIRMATION COPY OF PAN CARD RETURN ACKNOWLEDGEMENT FOR A.Y. 2007-08 DID NOT ATTEND & NO ACKNOWLEDGEMENT FOR A.Y 2006-07. 3. JAYANT PATIL 66 496 BILLS CONFIRMATIONS IT ACKNOWLEDGEMENT FOR A.Y. 2008-09 DID NOT ATTEND AND NO. ACK. FOR A.Y. 2006-07. 4. AASIM RAIS 30 000 BILLS CONFIRMATIONS PAN CARD DID NOT ATTEND & BANK ACCOUNT NOT PRODUCED. 5. VIJAY TRANSPORT 58 680 LEDGER SHOWED 1 60 340 TDS CERTIFICATE SHOWED 1 01 660 DISALLOWED 58 680 TOTAL 3 62 890 ITA NO.1711/MUM/2010(A.Y. 2006-07) 3 4. AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSE E HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. OUT OF THE ADD ITION SUSTAINED BY THE CIT(A) THE ASSESSEE HAS CHALLENGED ONLY THE ADDITIO N SUSTAINED AT SL.NO.1 TO 4 ABOVE. 5. IN RESPECT OF THE ADDITIONS SUSTAINED BY THE CIT (A) THE FACTS ARE AS FOLLOWS: 1. UMESH PATIL RS. 1 48 440/-:- IT IS NOT IN DISPUTE THAT BEFORE CIT(A) THE ASSESSEE FILED BILLS OF THE AFORESAID PARTY C ONFIRMATION PAN DETAILS COPY OF IT RETURN FILED ETC. A SUMMONS UNDER SECTI ON 131 OF THE ACT WAS ISSUED BY THE AO IN THE REMAND PROCEEDINGS. IN RES PONSE TO THE SAME THE SAID PARTY DID NOT APPEAR BEFORE THE AO. IN THESE CIRCUMSTANCES THE CIT(A) UPHELD THE ADDITION MADE BY THE AO. ACCORDING TO T HE CIT(A) WHEN THE INSPECTOR WAS DEPUTED BY THE AO WHEN PARTY DID NOT RESPOND TO THE NOTICE UNDER SECTION 133(6) OF THE ACT THIS PARTY WAS NOT FOUND AT THE ADDRESS GIVEN. IN THE REMAND PROCEEDINGS BEFORE THE AO TH IS PARTY WAS NOT PRESENT. IN THESE CIRCUMSTANCES THE CIT(A) HELD THAT THE ADD ITION MADE BY THE AO BE SUSTAINED. 2. MAYUR TRANSPORT RS. 59 309/-:- THE CONCLUSIONS OF THE CIT(A) IN THIS REGARD WERE IDENTICAL TO THE ONE IN THE CASE OF UME SH PATEL. THE ASSESSEE HAD FILED CONFIRMATION BILLS COPY OF PAN CARD AND IT RETURNS OF THE PARTY FOR ASSESSMENT YEAR 2007-08. THE CIT(A) WAS OF THE VIE W THAT THE RETURNS OF INCOME FOR AY 06-07 WAS NOT FILED. ITA NO.1711/MUM/2010(A.Y. 2006-07) 4 3. JAYANT PATIL RS. 66 496/-:- IN RESPECT OF THIS PARTY BILLS CONFIRMATION IT ACKNOWLEDGEMENT FOR A.Y 2008-09 WERE FILED. THE CI T(A) FOR IDENTICAL REASONS GIVEN ABOVE UPHELD THE ORDER OF THE AO. 4. AASIM RAIS RS. 30 000/-:- THE ASSESSEE HAD FILE D BILLS CONFIRMATION AND PAN CARD OF THIS PARTY. THE CIT(A) FOR THE IDENTI CAL REASONS GIVEN IN THE OTHER CASES CONFIRMED THE ORDER OF THE AO. 6. BEFORE US LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CONCLUSIONS OF THE CIT(A) ARE NOT SUSTAINABLE. THE CONCLUSIONS ARE PURELY BASED ON SURMISES. ACCORDING TO THE LD. COUNSEL FOR THE ASS ESSEE THE CIRCUMSTANCES POINTED OUT MAY CREATE DOUBT BUT THERE IS NO EVIDEN CE TO CONCLUDE THAT THE BILLS PRODUCED BY THE ASSESSEE WERE BOGUS. IN THI S REGARD LD. COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS: 1. CIT VS. M.K.BROTHERS 163 ITR 249(GUJ) 2. BALAJI TEXTILE INDUSTRIES (P) LTD. VS. THIRD ITO 49 ITD 177 (MUM) 3. ITO VS. GHANSHYAM STEEL TRADERS 107 TAXMAN 126 (AH D) 4. RAMMANOHAR SINGH VS. ACIT CIRCLE SATNA.IT APPEAL N OS. 39 & 94(JAB) OF 2006. 7. THE LD. D.R ON THE OTHER HAND RELIED ON THE ORD ER OF THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN OU R VIEW THE ADDITION SUSTAINED BY THE CIT(A) DESERVES TO BE DELETED. AD MITTEDLY THE ASSESSEE DISCHARGED PRIMARY ONUS OF FILING THE CONFIRMATIONS AND THE INCOME TAX PARTICULARS OF THE PERSONS TO WHOM THE ASSESSEE MAD E PAYMENTS. THERE IS NO DISPUTE THAT THE PAYMENTS IN QUESTION WERE MADE BY ACCOUNT PAYEE CHEQUES. THERE IS ALSO NO DISPUTE THAT IN THE ASSE SSMENT PROCEEDINGS SUMMONS UNDER SECTION 131 WERE SERVED ON THESE PERS ONS BUT THEY DID NOT CHOOSE TO APPEAR BEFORE THE AO IN RESPONSE TO THE S UMMONS. THERE IS ALSO ITA NO.1711/MUM/2010(A.Y. 2006-07) 5 NO DISPUTE THAT THE RECIPIENTS HAD OFFERED THE RECE IPTS FROM THE ASSESSEE IN THEIR RETURN OF INCOME TO TAX AND THE SAME HAS BEEN ACCEPTED BY THE REVENUE. IN THESE CIRCUMSTANCES WE ARE OF THE VIEW THAT NON-APPEARANCE OF THE RECIPIENTS IN RESPONSE TO THE SUMMONS ISSUED BY THE AO UNDER SECTION 131 OF THE ACT CANNOT BE THE SOLE BASIS TO SUSTAIN THE ADDITION MADE BY THE AO. THE DECISIONS RELIED UPON BY THE ASSESSEE SUPP ORT THE PLEA OF THE ASSESSEE IN THIS REGARD. WE THEREFORE DIRECT THA T THE ADDITION SUSTAINED BY THE CIT(A) BE DELETED. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 31 ST DAY OF MARCH 2011. SD/- SD/- (B.RAMAKOTAIAH) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED. 31 ST MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RD BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR I TAT MUMBAI BENCHES MUMBAI. VM. ITA NO.1711/MUM/2010(A.Y. 2006-07) 6 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 23/3/2011 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 28/3/2011 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER