Deputy Commissioner of Income Tax Circle-1 , Ballari v. Sri Thangaraj Pathan , Ballari

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES A BENCH: BANGALORE BEFORE SHRI A.K. GARODIA ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE JUDICIAL MEMBER ITA NO. 467 /BANG/201 9 (ASSESSMENT YEAR: 20 09 - 10 ) DY. COMMISSIONER OF INCOME TAX CIRCLE - 1 BELLARI. .APPELLANT VS. SHRI THANGARAJ PETHAN PROP. JSR LOGISTICS NO.82 NOOR MANZIL HUSSAIN NAGAR R A GHAVENDRA COLONY 1 ST STAGE BELLARI. RESPONDENT. PAN AODPP 1802L ITA NO. 516 /BANG/201 9 (ASSESSMENT YEAR: 20 09 - 10 ) (BY ASSESSEE) ASSESSEE BY: SHRI B.S. BALACHANDRAN ADVOCATE. REVENUE BY: SHRI SUNIL KUMAR AGARWAL ADDL. CIT (D.R) DATE OF HEARING : 25.11 .2019 DATE OF PRONOUNCEMENT : 28 .11 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE JM : THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF CIT(APPEALS) KALABURAGI PASSED UNDER SECTION 143(3) AND 250 OF THE INCOME TAX ACT 1961 ('THE ACT'). 2 ITA NO S . 467 & 516/BANG/2019 2. F IRST WE SHALL TAKE UP THE REVENUES APPEAL NO.467/BANG/2019. THE LEARNED DEPARTMENTAL REPRESENTATIVE MADE SUBMISSIONS ON THE GROUNDS O F A P P E A L OF THE REVENUE. WHEREAS THE LEARNED AUTHORISED REPRESENTATIVE FILED WRITTEN SUBMISSIONS EXPLAINING THE LOW TAX EFFECT AND CIRCULAR NO.17 OF 2019 DT.8.8.2019 MENTIONING THAT THE TOTAL RELIEF GRANTED BY THE FIRST APPELLATE AUTHORITY /CIT(A) ON WHICH TAX EFFECT IS BELOW RS.50 LAKHS . T H E LD. DR HAS ACCEPTED THE LOW TAX EFFECT IN THE APPEAL OF REVENUE. ACCORDINGLY WE DISMISS THE REVENUES APPEAL ON NON - MAINTAINABILITY DUE TO LOW TAX EFFECT. 3. NOW WE TAKE UP THE ASSESSEE'S APPEAL AND THE FACTS NARRATED THEREON. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 3 ITA NO S . 467 & 516/BANG/2019 4. THE ASSESSEE IS A TRANSPORT CONTRACTOR AND FILED THE RETURN OF INCOME ON 30.09.2009 AND SUBSEQUENTLY FILED REVISED RETURN OF INCOME ON 31.03.2010 WITH TOTAL INCOME OF RS.95 01 390. THE RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) AND NOTICE UNDER SECTION 143(2) WAS ISSUED. WHEREAS THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF IRON ORE TRANSPORT CONTRACTOR AND ASSESSING OFFICER ON PERUSAL OF THE DETAILS FURNISHED BY THE ASSESSEE FOUND THA T THERE IS A DIFFERENCE IN THE RECEIPTS COMPARED TO THE DETAILS FURNISHED UNDER 26A S AND NON - DEDUCTION OF TDS UNDER SECTION 40(A)(IA) OF THE ACT AND FURTHER DISALLOWANCE OF DIESEL EXPENSES AND ASSESSED THE TOTAL INCOME AT RS.2 15 36 137 UNDER SECTION 143(3 ) OF THE ACT DT.27.12.2011. AGGRI EVED BY THE ORDER OF ASSESSMENT AND THE ASSESSEE FILED AN APPEAL WITH THE CIT(APPEALS). WHEREAS THE CIT(APPEALS) HAS GRANTED MARGINAL RELIEF IN RESPECT OF DIFFERENCE IN INCOME AS PER 26A S AS NO P R O P E R RECONCILIATION IS FILED. S IMILARLY ON DISALLOWANCE OF DIESEL EXPENSES WHERE THE CIT(APPEALS) HAS CONFIRMED 20% OF SUCH EXPENSES AND PARTLY ALLOWED THE ASSESSEE'S APPEAL. AGGRIEVED BY THE ORDER OF CIT(APPEALS) THE ASSESSEE HAS FILED AN APPEAL WITH THE TRIBUNAL. 5. AT THE T IME OF HEARING THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS ERRED IN SUSTAINING THE ADDITION DUE TO DIFFERENCE IN THE 4 ITA NO S . 467 & 516/BANG/2019 RE C E I P T AS PER RETURNED INCOME AND IN FORM NO.26AS AND SIMILARLY SUSTAINING DISALLOWANCE OF 20% ON DIESEL EXP ENSES IRRESPECTIVE OF NO DEFECTS AND DEFICIENCIES IN MAINTAINING THE DOCUMENTS. THE LEARNED CIT(APPEALS) HAS NOT CONSIDERED THE ASSESSEE'S SUBMISSIONS AND PASSED THE ORDER AND PRAYED FOR ALLOWING THE APPEAL. CONTRA THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF CIT(APPEALS). 6. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLE MATRIX OF THE DISPUTED ISSUE ON THIS ASPECT S AS ENVISAGED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT THE CIT(APPEALS) HAS NOT GIVEN PROPER CONSIDERATION TO THE SUBMISSIONS MADE BY THE ASSESSEE IN RESPECT OF RECONCILIATION. THE LEARNED AUTHORISED REPRESENTATIVE REFERRED TO THE PAGE 5 OF THE CIT(AP PEALS) ORDER WHERE THE ASSESSEE HAS SUBMITTED THE CLA RIFICATIONS AND RECONCILIATION. S IMILARLY ON DISALLOWANCE OF DIESEL EXPENSES THE CIT(APPEALS) HAS CONSID E RED THE BUSINESS OPERATIONS OF THE ASSESSEE AND HAS RESTRICTED TO 20% ADDITION . THE CONTENTI ON OF THE LEARNED AUTHORISED REPRESENTATIVE THAT THE CIT(APPEALS) HAS GIVEN ONLY MARGINAL RELIEF OVERLOOKING THE FACT AND SUBMISSIONS . WE FOUND THAT THE ASSESSEE HAS MADE SUBMISSIONS ON THESE DISPUTED ISSUES WHERE AS THERE ARE PROPER OBSERVATIONS OF THE C IT (APPEALS) ON DISPUTED ISSUES. ACCORDINGLY WE ARE OF THE OPINION THAT THE MATTER HAS TO BE RELOOKED CONSIDERING THE SUBMISSIONS OF THE 5 ITA NO S . 467 & 516/BANG/2019 ASSESSEE AND THEREFORE RESTORED TO THE FILE OF CIT(APPEALS) AND ALLOW THE GROUNDS OF APPEAL OF ASSESSEE FOR STATISTIC AL PURPOSES. 7. IN THE RESULT THE REVENUES APPEAL IS DISMISSED AND ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 8 T H NOV. 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 8 .11. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE