M/s Shreeram Marbles (P) Ltd, Bhubaneswar v. ACIT, Bhubaneswar

ITA 361/CTK/2011 | 2007-2008
Pronouncement Date: 16-09-2011

Appeal Details

RSA Number 36122114 RSA 2011
Assessee PAN AAKCS2582E
Bench Cuttack
Appeal Number ITA 361/CTK/2011
Duration Of Justice 1 month(s) 17 day(s)
Appellant M/s Shreeram Marbles (P) Ltd, Bhubaneswar
Respondent ACIT, Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 16-09-2011
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 16-09-2011
Assessment Year 2007-2008
Appeal Filed On 29-07-2011
Judgment Text
IN THE INCME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE : SHRI K.K.GUPTA AM AND SHRI K.S.S.PRASAD RAO JM ITA NO. 361/CTK/2011 (ASSESSMENT YEAR 2007 - 08) M/S.SHREERAM MARBLES (P) LTD. PLOT NO.963 AND 964/RASULGARH N.H.SIDE BHUBANESWAR 7 51 010 PAN: AAKCS 2582E VERSUS ASST.COMMISSIONER OF INCOME - TAX CIRCLE 2(2) RAJASWA VIHAR AAYAKAR BHAWAN BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI P.C.MISHRA AR FOR THE RESPONDENT SHRI S.C.MOHANTY DR DATE OF HEARING : 13.09.2011 DATE OF PRONOUNCEMENT : 16.09.2011 ORDER SHRI K.K.GUPTA AM : THE ASSESSEE IS IN APPEAL AGAINST ORDER DT.31.3.2011 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2007 - 08. 2. AT THE OUTSET THE LEARNED AR OF THE ASSESSEE S UBMITTED THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE WHICH IS NOT IN ACCORDANCE WITH LAW. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A). AS REGARDS THE DISALLOWANCE U/S.40A(3) THE LE ARNED DR SUBMITTED THAT 3. ACCORDING TO SECTION 250(6) THE ORDER OF CIT(A) SHOULD BE IN WRITING STATING POINTS OF DETERMINATION. SECTION 250(6) IS AS FOLLOWS : - SEC. 250(6) : THE ORDER OF THE [COMMISSIONER (APPEALS)] DISPOSING OF THE APPEAL SHALL BE IN WR ITING AND SHALL STATE THE POINTS FOR DETERMINATION THE DECISION THEREON AND THE REASON FOR THE DECISION . THUS SECTION 250(6) ORDAINS THAT THE APPELLATE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY M UST BE IN WRITING AND STATE THE POINTS FOR DETERMINATIO N THE DECISION THEREON AND THE REASONS FOR THE DECISION. THE PROVISIONS OF SECTION 250(6) ARE IN THE NATURE OF INSTRUCTION TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE ORDER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. ITA NO.361/CTK/2011 2 THE ORDER SHALL NOT BE CRYPTIC. THE ORDER SHALL BE SELF - EXPLANATORY. THIS IS MORE SO BECAUSE SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE APPELLATE TRIBUNAL. THE OBJECT IS TOO OBVIOUS. IT ENABLES A PARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINST HIM. ABSENCE O F FORMULATION OF THE POINTS FOR DECISION OR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PARTY IN QUANDARY. A DECISION BY ITS VERY NATURE MUST BE FIRM AND SHOULD NOT BE VAGUE AND UNCLEAR. REFERENCE IN THIS REGARD CAN BE MADE TO THE FOLLOWING DECISIONS : - 1. ABDUL SATHAR HAJI MOOSA SAIT DHARMASTAPANAM VS. CIT (1988) 169 ITR 84 (KER) 2 . CIT VS. KARAMCHAND PREMCHAND (P) LTD. 74 ITR 254 (GUJ) 3 . CIT VS. BUILDWELL ASSAM (P) LTD. (1982) 133 ITR 736 (GAUH) A JUDGMENT UNSUPPORTED BY REASONS IS NO JUDGMENT IN THE EYE OF LAW. IT IS WELL SETTLED THAT REASONS ARE THE LINKS BETWEEN THE MATERIAL ON RECORD AND THE CONCLUSION ARRIVED AT BY THE COURT [CIT VS. SURENDRA SINGH PAHWA (1995) 79 TAXMAN 298] AND LASTLY THE APPELLATE AUTHORITY IS A QUASI JUDICIAL AUTHORITY. HE SHO ULD EXERCISE THE DISCRETION VESTED IN HIM IN ACCORDANCE WITH LAW. THE ORDER PASSED BY HIM SHOULD SHOW THAT HE HAS APPLIED HIS MIND AND TAKEN INTO CONSIDERATION THE BASIC REQUIREMENTS GERMANE TO THE ISSUE [V.N. PURUSHOTHAMAN VS. AG.ITO (1984) 149 ITR 120 ( KER.)] . FURTHER IN THE CASE OF GUJARAT THEMIS BIOSYN LTD. VS. JT. CIT 74 ITD 339 ITAT AHMENDABAD BENCH WHILE DISCU SSING U/S 250(6) HAS HELD THAT S ECTION 254 CONFERS PLENARY JURISDICTION ON THE TRIBUNAL IN THE MATTER OF PASSING ORDERS UNDER SECTION 254 A ND AS AGAINST THAT S ECTION 250(6) DOES NOT CONTAIN SUCH POWER HENCE THE REFERENCE MADE BY CIT(A) TO THE CASE OF CIT VS. MULTIPLAN INDIA (P) LTD. (SUPRA) WAS ENTIRELY MISPLACED. 4. GOING THROUGH THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND CONSIDERING THE SAME IN THE LIGHT OF THE ABOVE JUDICIAL PRONOUNCEMENT WE FOUND THAT THE LEARNED CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE ITA NO.361/CTK/2011 3 WITHOUT ANY DISCUSSION ABOUT THE MERITS OF THE ISSUES RAISED BEFORE HIM. THEREFORE THE IMPUGNED ORDER OF THE LEARN ED CIT(A) CANNOT BE SUSTAINED AND HENCE IT IS SET ASIDE. 5. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ISSUES INVOLVED IN THE APPEAL ARE ADDITIONS MADE BY THE ASSESSING OFFICER OF 1 15 200 U/S.40A(3) AND DISALLOWANCE/ADDITION OF 7 84 133 OUT OF TRANSPORTATION CHARGES U/S.40(A)(IA) WHICH HAVE BEEN MADE WITHOUT PROPER VERIFICATION OF ACCOUNTS. HE FILED A WRITTEN SUBMISSION ALONG WITH VARIOUS DOCUMENTS SUCH AS STATEMENT OF ACCOUN T TRADING AND P & L ACCOUNT TRANSPORT VOUCHERS COPY OF BANK ACCOUNT AND COPIES OF VARIOUS JUDICIAL DECISIONS IN SUPPORT OF IT CLAIM. THEREFORE HE PRAYED THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR ADJUDICATION OF THE ABOVE ISSUES AFRES H. THE LEARNED DR HOWEVER OPPOSED RESTORATION OF THE ISSUES TO THE FILE OF THE ASSESSING OFFICER BY POINTING OUT THE FOLLOWING TO JUSTIFY THE ADDITIONS AS UNDER . 1. DISALLOWANCE U/S 40A(3). AS EVIDENCED BY THE INFORMATION FURNISHED IN THE TABLE ON THE T OP OF PAGE - 3 OF THE PAPER BOOK OF THE APPELLANT AGAINST THE DATE OF 25.4.2006 THE SUM OF RS 40 000/ - WAS PAID TO AN A PARTY THROUGH HIS AGENT OTHERWISE THAN BY AN ACCOUNTS PAYEE CHEQUE / DRAFT. THAT PROVES FALSE THE SUBMISSION IN PARAGRAPH 6(2) OF THE WRI TTEN SUBMISSION OF THE APPELLANT AT PAGE - 2 OF HIS PAPER BOOK THAT ALL THE SUMS MENTIONED AT THE TOP OF PAGE 2 OF THE ASSESSMENT ORDER REPRESENTED WITHDRAWALS BY THE APPELLANTS EMPLOYEES FROM HIS BANK. 2. DISALLOWANCE U/S 40A(IA). THE DATA IN THE TRANSPOR T VOUCHERS FURNISHED AT PAGE 17 TO 48 OF THE PAPER BOOK OF THE APPELLANT HAS BEEN SUBJECTED TO COMPUTERISED PROCESSING TO SORT THE DATA PARTY - WISE. ENCLOSED HEREWITH IS A PRINTOUT OF THE PROCESSED DATA. IT DEMONSTRATES THAT THE AMOUNT OF ANY SUM PAID TO TH E TRANSPORT CONTRACTOR EXCEEDED TWENTY THOUSAND RUPEES AND THE AGGREGATE OF THE AMOUNTS OF SUCH SUMS PAID DURING THE FINANCIAL YEAR EXCEEDED FIFTY THOUSAND RUPEES. 3. THE DECISION IN THE CASE OF MADRAS BAR ASSOCIATION & OTHERS V. C.B.D.T. 216 ITR 240 (MAD) CITED IN PARAGRAPH 7(IV) OF THE WRITTEN SUBMISSION AT PAGE 5 OF THE PAPER BOOK IS NO LONGER GOOD LAW IN VIEW OF THE AMENDMENT OF THE STATUTE BY INSERTION OF EXPLANATION (III) TO SECTION 194C(2) OF INCOME TAX ACT BYTHE FINANCE ACT 1995 W.E.F. 1.7.1995 TO T HE EFFECT THAT WORK INCLUDES CARRIAGE OF GOODS. ITA NO.361/CTK/2011 4 IT IS NECESSARY TO OBSERVE HERE THAT THAT THE DOCUMENTS AND EVIDENCE WERE NEITHER EXAMINED BY THE ASSESSING OFFICER NOR BY THE LEARNED CIT(A) HE HAVING DISMISSED THE APPEAL IN LIMINE AND THEREFORE OBVIOUS LY IT WILL NOT BE PROPER TO EXAMINE THOSE DOCUMENTS AND EVIDENCE AT THIS STAGE. FOR THE SIMPLE REASON THAT WITHDRAWALS FROM BANK FOR INCURRING EXPENDITURE CANNOT BE DISALLOWED U/S.40A(3) AND THE PAYMENTS TO TRUCK DRIVERS CANNOT BE CONSIDERED U/S.194C WHEN THE AMOUNTS WITHDRAWN HAVE BEEN ALREADY CONSIDERED FOR DISALLOWANCE U/S.40(A)(IA) ALL THESE NEEDS TO BE VERIFIED FROM DOCUMENTS AND EVIDENCE PRODUCED BY THE ASSESSEE. THEREFORE WE FEEL IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER WHO WILL CONSIDER THE ABOVE ISSUES AFRESH IN THE LIGHT OF ABOVE AFTER CONSIDERING THE DOCUMENTS/EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT THEREOF AND PASS NECESSARY CONSEQUENTIAL ORDER AS PER LAW OFCOURSE AFTER GIVING PROPER OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 16 TH SEPTEMBER 2011 H.K.PADHEE SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: M/S.SHREERAM MARBLES (P) LTD. PLOT NO.963 AND 964/RASULGARH N.H.SIDE BHUBANESWAR 751 010 2. THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX CIRCLE 2(2) RAJASWA VIHAR AAYAKAR BHAWA N BHUBANESWAR. 3. THE CIT 4. THE CIT(A) 5. THE DR CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY.