The ITO,Vapi Ward-2,, Vapi v. Shri Jigar J.Mehta, Valsad

ITA 619/AHD/2010 | 2005-2006
Pronouncement Date: 14-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 61920514 RSA 2010
Assessee PAN ABXPM7248Q
Bench Ahmedabad
Appeal Number ITA 619/AHD/2010
Duration Of Justice 4 year(s) 8 month(s) 19 day(s)
Appellant The ITO,Vapi Ward-2,, Vapi
Respondent Shri Jigar J.Mehta, Valsad
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 14-11-2014
Date Of Final Hearing 10-11-2014
Next Hearing Date 10-11-2014
Assessment Year 2005-2006
Appeal Filed On 24-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL CHATURVEDI A.M.) I. T. A. NO. 619 / AHD/ 20 1 0 & C.O. NO. 156/AHD/2013 (A SSESSMENT YEAR: 2005 - 06) INCOME - TAX OFFICER VAPI WARD - 2 VAPI. V/S SH. JIGAR J. MEHTA PROP: - RAJ CONSTRUCTION C/3 TIRUPATI PARK B/H. BANK OF BARODA BHILAD. DISTT. VALSAD (APPELLANT) (RESPONDENT) SH. JIGAR J. MEHTA PROP: - RAJ CONSTRUCTION C/3 TIRUPATI PARK B/H. BANK OF BARODA BHILAD. DISTT. VALSAD V/S INCOME - TAX OFFICER VAPI WARD - 2 VAPI. (APPELLANT) (RESPONDENT) PAN: AB XPM7248Q APPELLANT BY : SHRI ROOP CHAND SR. DR RESPONDENT BY : SHRI JAIMIN. B. SHAH A.R. ( )/ ORDER DATE OF HEARING : 10 - 11 - 2014 DATE OF PRONOUNCEMENT : 14 - 11 - 2014 PER SHRI ANIL CHATURVEDI A.M. 1. THIS APPEAL IS FILED BY THE REVE NUE AGAINST THE ORDER OF CIT(A) - VALSAD DATED 06.10.2009 FOR A.Y. 2005 - 06 AND ASSESSEE HAS ALSO FILED C.O. 2. THE FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE EN GAGED IN THE BUSINESS OF CONSTRUCTION AND REPAIRING ACTIVITIES . ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 0 5 - 06 ON 31 .10.200 5 DE CLARING TOTAL INCOME AT RS. 2 76 31 0/ - . THE CASE ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 2 WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SE CTION 144 VIDE ORDER DATED 20.12.2007 AND THE TOTAL INCOME WAS DETERMINED AT RS. 68 69 42 0/ - . AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO VIDE ORDER DATED 06.10 2 0 0 9 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US AND THE ASSESSEE HAS ALSO FILED A C.O. BEFORE US ASSESS EE HAS SUBMITTED THAT THERE IS DELAY IN FILING OF C.O BY 6 DAYS AND HAS ALSO FILED THE AFFIDAVIT OF THE ASSESSEE EXPLAINING THE REASON FOR DELAY. CONSIDERING THE AVERMENTS MADE IN THE AFFIDAVIT WE CONDONE THE DELAY IN FILING THE C.O. THE GROUNDS RAISED THE REVENUE READS AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED DELETING THE ADDITION MADE ON ESTIMATION OF PROFIT OF RS.90 036/ - . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN DELETING ADDITION MADE U/S 68 R.W.S. 41(1) OF RS.47 00 145/ - . 1 ST GROUND IS WITH RESPECT TO DELETION OF ADDITION MADE ON ACCOUNT OF ESTIMATION OF PROFIT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PERUSING THE AUDIT REPORT FILED BY THE AS SESSEE A.O NOTICED THAT SINCE THE ASSESSEE HAD NOT FILED THE DETAILS OF EXPENSES INCURRED THE EXPENSES IN THE ENTIRETY CANNOT BE ALLOWED. HE THEREFORE CONSIDERED THE GROSS PROFIT SHOWN BY THE ASSESSEE OF RS. 7 71 725/ - AS THE NET PROFIT OF THE ASSESSEE AN D THEREBY DISALLOWED THE ENTIRE INDIRECT EXPENSES. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: - 8. I HAVE CON SIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE. REGARDING GROUND NO 2 CONSIDERING THE GROSS PROFIT AS NET PROFIT AND THEREBY DISALLOWING ENTIRE INDIRECT EXPENSES IT IS SEEN THAT MOST OF EXPENSES ARE IN NATURE OF ROUTINE BUSINESS EXPENSES. THE EXPENSES INCLUDE EXPENSES INCURRED ON AUDIT FEES BANK CHARGES DEPRECIATION RENT SALARY VEHICLE TELEPHONE ETC. AUDIT FEES IS REQUIRED TO BE INCURRED AS THE GROSS RECEIPTS OF THE APPELLANT EXCEEDS RS. 40.00 LACS. BANK CHARGES ARE DEBITED BY THE BANK. SALARY IS PAID TO THE ADMINISTRATIVE STAFF OF THE APPELLANT. TELEPHONE AND VEHICLE IS NECESSARY FOR CARRYING ON THE BUSINESS. IN VIEW OF THE SAME IT WOULD NOT BE CORRECT TO DISALLOW THE SAID EXPENSES. IT IS ALSO A FACT THAT THE BOOKS OF ACCOUNTS WERE NOT PRODUCED FO R VERIFICATION BEFORE THE AO. THEREFORE THE PROBABILITY OF INCURRING EXPENSES FOR NON - BUSINESS PURPOSE CANNOT BE RULED OUT. TOTAL ADDITION MADE BY THE AO BY CONSIDERING THE GROSS PROFIT AS NET PROFIT WORKS OUT AT RS. 4 95 418. CONSIDERING THE TOTALITY OF F ACTS AND CIRCUMSTANCES OF THE CASE IT WOULD MEET THE ENDS OF JUSTICE IF THE PROFIT IS ESTIMATED AS UNDER: ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 3 GROSS RECEIPT SHOWN BY THE APPELLANT RS. 85 21 129 8% OF GROSS RECEIPT RS. 6 81 690 LESS: N.P. ALREADY SHOWN RS. 2 76 308 NET ADDITIO N RS. 4 05 382 THEREFORE AN ADDITION OF RS. 4 05 382 SHOULD BE MADE OVER AND ABOVE THAT SHOWN IN THE BOOKS OF ACCOUNTS. IN VIEW OF THE SAME ADDITION TO THE EXTENT OF RS. 4 05 382 OUT OF RS. 4 95 418 IS CONFIRMED AND THE BALANCE ADDITION IS DIRECTED TO BE DELETED. 5. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 6. BEFORE US LD. D.R. SUBMITTED THAT THE ASSESSEE WAS NON COOPERATIVE AND DESPITE VARIOUS O PPORTUNITIES GRANTED BY THE A.O ASSESSEE DID NOT SUBMIT THE REQUIRED DE TAILS AND IN SUCH CIRCUMSTANCES T HE A.O WAS FULLY JUSTIFIED IN FRAMING THE ASSESSMENT U/S 144 AND SINCE THE ASSESSMENT WAS FRAMED U/S 144 THE A.O WAS REASONABLE IN MAKING THE ESTIMATE AND THEREBY THE DISALLOWANCES. HE THUS SUPPORTED THE ORDER OF A.O. THE LD. A. R. ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE A.O AND CIT(A). HE THUS SUPPORTED THE ORDER OF CIT(A) . 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT A.O HAD CONSIDERED THE GROSS PROFIT SHOWN BY THE ASSES SEE AS THE NET PROFIT AND THEREBY DISALLOWED THE ENTIRE INDIRECT EXPENSES. WE FURTHER FIND THAT CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE C ONSIDERED 8% OF THE RECEIPTS SHOWN BY THE ASSESSEE TO BE THE GROSS PROFIT WHICH IN OUR VIEW SEEMS TO BE REASONABLE . BEFORE US NO MATERIAL HAS BEEN PLACED ON RECORD BY THE REVENUE TO CONTROVERT THE FINDINGS OF CIT(A). WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF CIT(A) AND THUS THIS GROUND OF REVENUE IS DISMISSED . 2 ND GROUND IS WITH RESPEC T TO DELETION ON ADDITION MADE U/S 68 R.W.S. 41(1) OF THE ACT. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON VERIFICATION OF THE BALANCE SHEET A.O NOTICED THAT ASSESSEE HAD SHOWN SUNDRY CREDITORS OF RS. ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 4 47 00 145/ - . THE ASSESSEE WAS ASKED TO PRODU CE DETAILS AND CONFIRMA TIONS OF THE CREDITORS WHICH ASSESSEE DID NOT FURNISH. A.O THEREAFTER ON VERIFICATION OF THE RETURN OF INCOME OF THE 3 CREDITORS OF THE ASSESSEE NOTICED THAT THE NAME OF THE ASSESSEE WAS NOT APPEARING AS DEBTOR IN THEIR BALANCE SHEET S . ( THE CASES W H ERE THE A.O VERIFIED THE RETURNS OF INCOME OF CREDITORS ARE STATED AT PAGE 4 OF THE A.O S ORDER ) . HE WAS THEREFORE OF THE VIEW THAT THE ENTRIES SHOWN IN THE NAME OF SUNDRY CREDITORS WERE PRIMA FACIE WRONG. HE THEREFORE APPLYING THE PROVISIO N OF SECTIONS 68 R.W.S. 41(1) OF THE ACT CONSIDERED THE ENTIRE AMOUNT OF RS. 47 00 145/ - AS THE INCOME OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT DELETED THE ADDITION BY HOLDING AS UNDER: - 11.1 THE APPELLANT HAS CONTENDED THAT THE CREDITORS ARE ON ACCOUNT OF SALE OF GOODS AND NOTHING ELSE. THE APPELLANT HAS BOUGHT MATERIAL FROM THE SAID PARTIES FOR ITS BUSINESS. THE APPELLANT HAS ALSO MADE PAYMENTS TO THE SAID PARTIES IN THE SUBSEQUENT YEARS. NECESSARY PROOF DISCHARGING THE PAYMENT LIABILITY HAS BEEN PRODUCED BEFORE ME. THE APPELLANT ALSO PRODUCED THE CONFIRMATION OF THE PARTIES CONFIRMING THE OUTSTANDING BALANCE FROM THE APPELLANT. AF FIDAVITS OF THE CREDITORS WERE FILED. IT WAS SUBMITTED THAT IT IS NOT A CASE OF CESSATION OR REMISSION OF LIABILITY. NONE OF THE CREDITORS HAVE WAIVED THEIR RIGHT TO RECEIVE THE MONEY. DESPITE THE ASSESSMENT IS COMPLETED U/S. 144 THE AO HAS NOT RIGHT TO M AKE SUCH ADDITION WITHOUT ANY COGENT EVIDENCE FOR SUCH WAIVER OR CESSATION ON RECORD. THERE IS NO EVIDENCE BROUGHT ON RECORD BY THE AO TO THE EFFECT THERE IS WAIVER FROM THE SIDE OF THE CREDITOR OF THE AMOUNT OUTSTANDING FROM THE APPELLANT. THERE IS NO EVI DENCE THAT THE CREDITORS HAVE VOLUNTARILY GIVEN UP THE IN CONSEQUENCE OF THE LETTER DATED 6.7.2009 THE ASSESSEE PRODUCED FIVE CREDITORS ON RANDOM BASIS. THE NAMES OF THE CREDITORS PRODUCED ARE AS UNDER: - 1. SURESHKUMAR S. JAIN (PROP: - S.M. MARBLE) 2. SUNILKUMAR VERUNI IZAVA (PROP: - A.V. ENGINEERING) 3. YOGESHBHAI C. SHAH (PROP: - LAXMI HARDWARE) 4. KUNVAR BAHADUR SINGH (PROP: - SURAJ ALUMINIUM) 5. SAKUR RAUF KHAN OUT OF THE ABOVE THE PERSONS AT SR. NO. 1 & 2 ARE AMONGST THE 15 PERSONS WHO HA D FILED AFFIDAVITS IN CONFIRMATION OF THE OUTSTANDING BALANCES WHEREAS THE PERSONS AT SR. NO. 3 4 & 5 WERE AMONGST THE OTHER EIGHT PERSONS WHO HAD FILED ONLY BALANCE CONFIRMATIONS IN SUPPORT OF THE CREDIT BALANCES SHOWN IN THE BALANCE SHEET OF THE ASSESS EE. THE ABOVE NAMED FIVE PERSONS WERE DULY EXAMINED AND DURING THE COURSE OF SUCH EXAMINATION THEY 31.03.2009. THE OUTSTANDING BALANCES REFLECTED IN THE BOOKS OF THE ASSESSEE AND AS PER THE BOOKS OF THE CREDITORS WITNESSES AS ON 31.03.2009 ARE AS UNDER. SR. NO. NAME OF THE CREDITORS AS PER BOOKS OF THE CREDITOR AS PER THE ASSESSEE 1 SURESHKUMAR S. JAIN RS. 2 19 505/ - RS. 2.19 505/ - 2 SUNILKUMAR VERUNI IZAVA RS. 1 04 290/ - RS. 1 04 290/ - 3 YOGESHBHAI C. SHAH RS. 24 518/ - 24 518/ - 4 KUNVAR BAHADUR SINGH RS. 1 72 774/ - 1 72 774/ - 5 SAKUR RAUF KHAN RS. 1 36 812/ - S. 1 36 812/ - ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 5 DURING THE COURSE OF THE EXAMINATION THE IDENTITY OF PERSONS PRODUCED WAS DULY VERIFIED. EACH OF THE FIVE PERSONS WERE FOUND TO BE MATERIAL SUPPLIERS TO THE ASSESSEE. THE MATERIAL SUPPLIED WAS MARBLE SAND FABRICATION ITEMS ETC USED IN THE CONSTRUCTION ACTIVITY. IT IS FURTHER SUBMITTED THAT IN VIEW OF LIMITATION OF TIME THE EXAMINATION HAS BEEN MADE ON TEST CHECK BASIS IN RESPECT OF PERSONS FALLING UNDER THE TWO CATEGOR IES VIZ. (1) CREDITORS WHO HAD FILED AFFIDAVITS ALONG WITH COPY OF ACCOUNTS/BALANCE CONFIRMATION AND (2) CREDITORS WHO HAD FILED ONLY BALANCE CONFIRMATION.' 11.2 FROM THE ABOVE OBSERVATIONS OF THE AO IT IS SEEN THAT THE CREDITORS SHOWN BY THE APPELLANT AS OUTSTANDING ARE GENUINE. THE CREDITORS ARE FOR EXPENSES FOR WHICH THE APPELLANT HAS TO MAKE PAYMENTS. THE AO HAS CONFIRMED THAT THE OUTSTANDING BALANCES DO REMAIN TO BE RECOVERED FROM THE ASSESSEE AS ON 31.03.2009. IN VIEW OF THE SAME THE ADDITION MADE BY THE AO INVOKING PROVISIONS OF SECTION 41(1) R.W.S. 68 IS DIRECTED TO BE DELETED. 9. AGGRIEVED BY THE ORDER OF CIT(A) REVENUE IS NOW IN APPEAL BEFORE US. 10. BEFORE US LD. D.R. SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKE D TO PRODUCE THE DETAILS AND CONFIRM ATION OF THE CREDITORS WHICH ASSESSEE DID NOT FURNISH. FURTHER ON VERIFICATION OF THE RETURN OF INCOME OF THE 3 CREDITORS A.O NOTICED THAT THE NAME OF THE ASSESSEE AS SUNDRY DEBTORS WAS NOT APPEARING IN THEIR BALANCE SH EET AND THEREFORE THE A.O WAS FULLY JUSTIFIED IN CONSIDERING THE LIABILITY OF ASSESSEE TO BE NON EXISTENT AND THEREFORE A.O WAS FULLY JUSTIFIED IN MAKING THE ADDITION. THE LD. D.R. FURTHER SUBMITTED THAT SIMPLY ON THE BASIS OF THE EXAMINATION OF 5 PERSONS CIT(A) HAS DELETED THE ADDITION IN RESPECT OF ALL THE CREDITORS. HE FURTHER SUBMITTED THAT THERE IS NO FINDING OF LD. CIT(A) WITH RESPECT TO THE NON REFLECTION OF THE ASSESSEE AS DEBTOR IN THE RETURN OF INCOME BY THE 3 CREDITORS AS POINTED OUT BY THE A.O. HE THEREFORE SUBMITTED THAT THE ORDER OF A.O BE UPHELD. THE LD. A.R. ON THE OTHER HAND REITERATED THE SUBMISSIONS MADE BEFORE A.O AND CIT(A) AND FURTHER SUBMITTED THAT NO ADDITION ON ACCOUNT OF SECTION 41(1) CAN BE MADE IN THE CASE OF ASSESSEE AS NO BENEF IT WAS DERIVED BY THE ASSESSEE AND MORE SO WHEN THE PURCHASES MADE BY THE ASSESSEE HAS BEEN ACCEPTED BY THE A.O. HE FURTHER SUBMITTED THAT THE CREDITORS APPEARING ARE THE RUNNING ACCOUNTS AND PAYMENTS HAVE ALSO BEEN MADE TO THE CREDITORS IN SUBSEQUENT YEAR S. THE LD. A.R. FURTHER SUBMITTED THAT WHEN ADDITION HAS BEEN MADE ON ACCOUNT OF GP NO FURTHER ADDITION WAS REQUIRED. HE THUS SUPPORTED THE ORDER OF CIT(A). ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 6 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT A.O ON THE BASIS OF EXAMINATION OF THE RETURN OF INCOME OF ONLY THE 3 CREDITORS AND ON NOTICING THAT THE NAME OF ASSESSEE WAS NOT REFLECTED BY THE M AS DEBTOR CONSIDERED THE ENTIRE AMOUNT REFLECTED UNDER THE HEAD SUNDRY CREDITORS BY THE ASSESSEE WHICH ALSO INCLUDED V ARIOUS OTHER PERSONS AS THE INCOME OF THE ASSESSEE. ON THE OTHER HAND WE FIND THAT CIT(A) ON THE BASIS OF THE EXAMINATION OF ONLY 5 PERSONS HAS DELETED THE ENTIRE ADDITION. FURTHER WE FIND THAT THERE IS NO FINDING OF CIT(A) WITH RESPECT T O THE NON REFLECT ION OF THE ASSESSEE AS DEBTOR BY THE 3 CREDITORS. BEFORE US LD. A.R. HAS ALSO SUBMITTED THAT THE CREDITORS HAVE BEEN PAID SUBSEQUENTLY AND THE ACCOUNTS WITH THOSE CREDITORS ARE RUNNING ACCOUNT . O N A SPECIFIC QUERY OF THE BENCH LD. A.R. COULD NOT PLACE ON RECORD THE COPY OF THE ACCOUNT OF THOSE CREDITORS TO SUPPORT ITS CONTENTION THAT THE ACCOUNT OF THE CREDITORS ARE RUNNING ACCOUNTS AND THAT THEY HAVE BEEN PAID IN SUBSEQUENT YEARS . CONSIDERING THE TOTALITY OF THE FACTS WE ARE OF THE VIEW THAT IN ALL FAI RNESS THE ENTIRE ISSUE NEEDS TO BE RE - EXAMINED DE NOVO AT THE END OF A.O. WE THEREFORE REMIT THE ISSUE BACK TO THE FILE OF A.O TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE . THE ASSESSEE IS ALSO DIRECTE D TO COOPERATE BY FURNISHING AL L THE NECESSARY DETAILS CALLED FOR BY THE A.O. NEEDLESS TO STATE THE A.O SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE RESULT THIS GROUND OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 13. THE GROUND RAISED BY THE C.O READS AS UNDER: - 1. THAT THE LEARNED CIT(A) - VALSAD HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN ESTIMATING G.P. ADDITIONS AT RS.6 81 690/ - INSTEA D OF ACCEPTING DECLARED INCOME OF RS.2 76 308/ - . 2. THAT THE BOOKS OF ACCOUNTS OF THE APPELLANT WAS AUDITED U/S 44AB OF THE IT ACT 1961 AND THERE WAS NO ANY ADVERSE COMMENTS BY THE AUDITOR IN HIS TAX AUDIT REPORT AND WITHOUT APPRECIATING THE FACTS OF THE CASE THE BOOKS OF ACCOUNTS ARE REJECTED AND AN ORDER WAS PASSED U/S 144 WAS BAD IN LAW ILLEGAL AND VOID HENCE THE BOOK RESULTS DECLARED BY THE ASSESSEE MAY BE ACCEPTED. ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 7 3. THAT THE LEARNED A.O. HAS ACCEPTED THE GROSS PROFIT AND REJECTED THE INDIRECT EXPENSES OF THE APPELLANT WHICH ARE NECESSARY FOR RUNNING THE BUSINESS OF THE APPELLANT. FURTHER ON THE BASIS OF FACTS OF THE CASE THE G.P. ADDITIONS OF RS.4 95 418/ - WAS BAD IN LAW AND WITHOUT CONSIDERING PAST RECORDS OF THE ASSESSEE G.P. ADDITIONS OF RS.4 95 419 / - CONFIRMED BY CIT(A) BE DELETED. 4. THAT THE LEARNED CIT(A) HAS WITHOUT APPRECIATING THE FACTS OF THE CASE AND NON - CONSIDERING THE SUBMISSIONS ADDITIONS MADE U/S 40(A)(IA) OF RS.13.01.617/ - IS BAD IN LAW AND AGAINST THE RULE OF NATURAL JUSTICE HENCE THE AD DITIONS U/S 40(A)(IA) SUSTAINED BY LEARNED C IT (A) FOR RS.13 01 617/ - REQUIRES TO BE DELETED. GROUND NO. 1 & 2 ARE GENERAL AND THEREFORE REQUIRE NO ADJUDICATION. GROUND NO. 3 IS WITH RESPECT TO G.P. ADDITION. 14. WE FIND THAT GROUND NO. 3 IS CONNECTED WITH GROUND NO. 1 OF REVENUE S APPEAL. WHILE DECIDING THE GROUND NO. 1 IN REVENUE S APPEAL HEREINABOVE THE GROUND OF REVENUE WAS DISMISSED. SINCE THE GROUND IS CONNECTED WITH GROUND NO. 1 OF REVENUE S APPEAL WE THEREFORE FOR THE REASONS STATE D HEREINABOVE WHILE DECIDING REVENUE S APPEAL AND FOR SIMILAR REASONS DISMISS THE GROUND OF ASSESSEE. THUS THIS GROUND IS DISMISSED. GROUND NO. 4 IS WITH RESPECT TO ADDITION OF RS. 13 01 617/ - MADE U/S 40(A)(IA) OF THE ACT. 15. DURING THE COURSE OF ASSESSM ENT PROCEEDINGS A.O NOTICED THAT ASSESSEE HAD MADE AGGREGATE PAYMENT OF RS. 13 01 617/ - ON ACCOUNT OF FABRICATION CHARGES LABOUR CHARGES PAINTING CHARGES AND PLUMBING CHARGES. A.O WAS OF THE VIEW THAT SINCE THE ASSESSEE HAS NOT FURNISHED THE NE CESSARY D ETAILS A.O COULD NOT VERIFY AS TO WHETHER THE TDS AS REQUIRED U/S 194C WAS DEDUCTED BY THE ASSESSEE. HE THEREAFTER DISALLOWED THE ENTIRE AGGREGATE PAYMENT OF RS. 13 01 617/ - U/S 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O. ASSESSEE CARRIED THE MATTER BEFOR E CIT(A) WHO CONFIRMED THE ADDITION MADE BY THE A.O BY HOLDING AS UNDER: - 9. GROUND NO.3 DEALS WITH ADDITION OF RS. 13 01 617/ - U/S. 40(A)(IA) OF THE ACT. IT IS SEEN THAT THE LIABILITY OF TDS HAS NOT BEEN DISCHARGED WITHIN THE TIME LIMIT PRESCRIBED BY THE A CT. IN VIEW OF THE SAME THE ADDITIO N MADE BY THE A.O IS CONFIRMED. ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 8 16. AGGRIEVED BY THE ORDER OF CIT(A) ASSESSEE IS NOW IN APPEAL BEFORE US. 17. BEFORE US LD. A.R. SUBMITTED THAT ASSESSEE IS AN INDIVIDUAL AND IN THE PRECEDING FINANCIAL YEAR THE TURNOVER OF THE A SSESSEE DID NOT EXCEED RS. 40 LACS AND THERE FORE THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS U/S 194C. HE FURTHER SUBMITTED THAT THE AFORESAID SUBMISSIONS MADE BEFORE CIT(A) HAS NOT CONSIDERED AND THERE IS NO FINDING BY THE CIT(A) OF THE SUBMISSIONS MADE B Y ASSESSEE . HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION. THE LD. D.R. ON THE OTHER SUBMITTED THAT THE ASSESSEE DID NOT SUBMIT THE REQUIRED DETAILS BEFORE A.O AND THEREFORE A.O HAD DISALLOWED THE EXPEN SES. HE THEREFORE SUBMITTED THAT THE MATTER MAY BE REMITTED TO THE FILE OF A.O . 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE A.O IN THE ABSENCE OF ANY DETAILS BY THE ASSESSEE CONSIDERED THE AGGREGATE PAYMENT RS . 13 01 617/ - MADE ON ACCOUNT OF FABRICATION LABOUR PAINTING AND PLUMBING CHARGES AS NOT ALLOWABLE U/S 40(A)(IA) OF THE ACT. WE ALSO FIND THAT CIT(A) HAS ALSO SUMMARILY DISMISSED THE GROUND OF THE ASSESSEE. BEFORE US LD. A.R. HAS SUBMITTED THAT ASSESSEE WAS NOT LIABLE TO DEDUCT TDS U/S 194C AS ASSESSEE BEING INDIVIDUAL AND IN THE IMMEDIATELY PRECEDING YEAR T HE TURNOVER OF THE ASSESSEE WAS LESS THAN 40 LACS. WE FIND THAT THERE IS NO FINDING OF CIT(A) OR A.O ON THE AFORESAID SUBMISSION. W E ARE THEREFORE O F THE VIEW THAT THE AFORESAID FACTUAL ASPECTS NEEDS VERIFICATION . WE THEREFORE REMIT THE ISSUE TO THE FILE OF A.O TO DECIDE THE ISSUE AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND IN ACCORDANCE WITH LAW. THE ASSESSEE IS ALSO DIRECTED TO SUBMIT ALL THE REQUIRED DETAILS CALLED FOR BY THE A.O. NEEDLESS TO STATE THAT A.O SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 19. IN THE RESULT THE C.O OF THE ASSESSEE IS PARTLY ALLOWE D FOR STATISTICAL PURPOSES. ITA NO 619/A/10 & C.O. NO. 156/A/13 . A.Y. 2005 - 06. 9 20. IN THE RESULT THE APPEAL OF REVENUE AND C.O OF ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN OPEN COURT ON 14 - 11 - 201 4 . SD/ - SD/ - (G.C.GUPTA) (AN IL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED . 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER P DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD