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Before: Shri Laliet Kumar & Dr. Mitha Lal Meena
In the Income-Tax Appellate Tribunal, Agra Bench, Agra Before : Shri Laliet Kumar, Judicial Member And Dr. Mitha Lal Meena, Accountant Member
ITA No. 352/Agra/2015 Assessment Year: 2010-11
ACIT, Circle-2, vs. M/s Sharma & Associates Gwalior Firetech Pvt. Ltd. 78, Silver Estate, City Center, Gwalior PAN AAICS 2402H (Appellant) (Respondent) CO No. 08/Agr/2017 [ITA No. 352/Agra/2015] Assessment Year: 2010-11 M/s Sharma & Associates Firetech vs. ACIT, Circle-2, Pvt. Ltd. 78, Silver Estate, City Gwalior Center, Gwalior PAN AAICS 2402H (Appellant) (Respondent)
Appellant by Shri Waseem Arashad, Sr. DR Respondent by Shri Deependra Mohan, CA
Date of Hearing 01.08.2019 Date of Pronouncement 19 .08.2019
ORDER Per Laliet Kumar, J.M.:
This appeal is filed by the Revenue and the CO filed by the assessee against the
order dated 29.05.2015 passed by the ld.CIT(A), Gwalior for the assessment year 2010-11. The grounds raised by the Revenue are as under:
ITA No.352/Agr/2015 2 CO No.08/Agr/2017 “1. Whether on facts and in circumstances of the case, the Ld. CIT(A) was justified in deleting addition of Rs.1,62,67,144/- on account of expenses on account of expenses on contracts, even though, the assessee has failed to produce sufficient details to prove the genuineness of transaction. 2. Whether on facts and in circumstances of the case, the Ld. CIT(A) was justified in deleting addition of Rs.1,00,000/- ignoring the findings of the AO.”
The grounds raised by the assessee in the CO are as under: “1 That, On the facts and circumstances of the case and in law, and in any view of the matter, the authorities below have erred in making and upholding the disallowance on account of petty contract expenses under head contract expenditure for want of verification in the name of following contractors:
Amount Sr. Name of Contractor No.
13.28,630/- 1 Mohit Gautam
2 Arvind Rawat 14,19,440/-
Deepak Gautam 12,81,600/- 3.
Total 40,29,670/-
That. On the facts and circumstances of the case and in law, and in any view of the matter, the authorities below have erred in making and upholding the disallowance on account of purchases for want of verification in the name of followingcontractor:
Sr. Name of Contractor Amount No.
1 Manish Enterprises 24,59,9 15/-
Total 24,59,915/-
ITA No.352/Agr/2015 3 CO No.08/Agr/2017 Brief facts
The assessee is engaged in the business of providing firefighting services
including supply and installation of firefighting equipment and job work. In the
assessment year under consideration, in this group the assessment, the
assessing officer on parallel of the balance sheet has found that the assessee has
shown sundry creditors of Rupees 4,84,94,262/-. The assessing officer had
asked the assessee to furnish the details of sundry creditors indicating the
name, address, PAN No., the amount of credit/liability, duration of
credit/liability, nature of transaction given rise to credit/liability et cetera. 3.1 In response to the question I raised by the assessing officer the assessee had
filed various replies including their reply dated 14/12/2012 and 21/12/2012.
The assessee had also filed the submission on 29th/01/2013 furnishing the
confirmation of the creditors on account of contractual is liability and other
sundry creditors are without spending liability of rupees more than 10 lakhs
as on 31st/03/2010. It was noticed by the assessing officer that many
confirmation given by the assessee there was no mention of address and PAN
No. of the creditors. On account of these discrepancies the assessing officer has
doubted the genuineness of these creditors. 3.2 The AO has asked the assessee to produce the above noted contractors for
verification but the assessee has neither produced contract creditors, namely,
ITA No.352/Agr/2015 4 CO No.08/Agr/2017 Mohit Gautam, Arvind Rawat and Deepak Gautam for verification nor
produced supporting bills/work order/work specification in respect to Brij
Kishore Das, Adityan Developers and Eng. Pvt. Ltd., Dharmendra Kumar Jatav,
Veerendra Pathak, Mohit Gautam, Arvind Rawat and Deepak Gautam. In view
of above, the AO had made the addition of Rs.65,45,445/-. 3.3 As the assessing officer was not convinced with these explanation given by the
assessee and also with the confirmation letter furnished in the office of the
assessing officer, therefore the assessing officer (paragraph 2.5.3 of the
assessment order) had disallowed the expenses of Rs.65,45,445/- in respect
to ‘petty contract paid’ under the head contract expenditure to the following 6-
7 persons:
S.No. Particulars of the Contractor Amounl Paid During the Year (in Rs.) 5,38,774 Brij Kishore Das 1. 2 Adityan Developers and Eng. Pvt. Ltd. 2,34,411 I 3. DharmenclraKuinarJatav 1,33,350 4. Veerendra Pathak 16,09,240 5. Mohit Gautam 13,28,630 6. Arvind Rawat 14,19,440 7. 12,81,600 Deepak Gautam 65,45,445
ITA No.352/Agr/2015 5 CO No.08/Agr/2017 4. Feeling aggrieved by the above said addition the assessee filed an appeal before
the CIT(A). The ld. CIT(A) in his order vide para 6.4.2 had dealt with above said
addition made by the ld. AO. Ld. CIT(A) had deleted the additions made in
respect of Brij Kishore Das, Adityan Developers and Enginners Pvt. Ltd.,
Dharmendra Kumar Jatav, Veerendra Pathak for the reasons mentioned in Para
6.2.4 of the CIT(A). However, the ld. CIT(A) had sustained the addition in
respect to Mohit Gautam, Arvind Rawat and Deepak Gautam totling to amount
to Rs.40,29,670/- as the ld. CIT(A) recorded that the fresh evidence was filed
before him which the assessee had not filed before the AO and hence, therefore,
he allowed the additional evidence and eventually confirm the addition made
by the AO.
Now, the assessee is in CO in respect of the addition sustained by the ld. CIT(A)
for an amount of Rs.40,29,670/- and the Revenue is in appeal in respect of
deletion made for an amount of Rs.25,15,775/-.( The revenue had challenged
the total deletion of amount of ₹ 1 6267144 by the ld. the CIT(A) as mentioned
in paragraph 6.2.4(Rs.25,15,775/-.) And Rs.131,91,325/-,{ page 65 para 6.3.4 of
CIT(A)} order)
In respect to deletion ofRs.25,15,775/-. By the Ld. CIT(A),. DR for the Revenue
had submitted that the order passed by the ld. CIT(A) is nonspeaking and
cryptic order, as the ld. CIT(A) had failed to deal with the submissions of the
ITA No.352/Agr/2015 6 CO No.08/Agr/2017 AO. It was submitted that the assessee has failed to provide all the bills,
contract or any other evidence supporting the payment of amount paid to these
persons.
6.1 Per contra Ld. AR for the assessee had submitted that the assessee has given all
the details of the bills raised by them, copy of account and had also given the
TDS return filed by the assessee after deducting the TDS at the time of making
the payment to these persons. It was submitted once the TDS has been
deducted, the name, address and PAN number of these persons are very much
available with the AO and therefore, the disallowance made by the AO and was
incorrect and the order of the ld. CIT(A) in respect of these four persons namely
Brij Kishore Das, Adityan Developers, Dharmendra Kumar Jatav and Veerendra
Pathak was in accordance with law.
We have heard the rival contentions and have perused the material available on
record. The ld CIT A at page 30 of his order mentioned that that the assessee
had provided details i.e. bills, copy of account, TDS in relation to the payment to
all parties. Further it was mentioned relevant details on the transaction are
verifiable with the books of account of the assessee and assessee had produced
the invoices of transactions and TDS return in respect of the transactions
entered between the parties. The assessing officer has failed to produce any
contradictory evidence on record to disbelieve the evidence filed by the
ITA No.352/Agr/2015 7 CO No.08/Agr/2017 assessee before the AO or before CIT(A). In our considered opinion the
additions made by the AO on the premises that the letter issued to these
persons have not been delivered unreturned is unsustainable in the eyes of law.
The fact that the service has been effected on these person shows clearly the
existence of these persons. The existence of the creditors on the given address
and nonappearance by these persons or nonparticipation of these persons in
the assessment proceedings would not make the case of the AO, as it is for the
assessing officer to ensure the presence of these persons and bring the
contradictory statement on record this proving the existence of these creditors.
In our view once the assessee has asked the assessing officer to use the coercive
measure to ensure the presence of these creditors in the assessment
proceedings than it is for the assessing officer to use the official mention the
two ensure the presence of these creditors. However despite the request of the
assessee, the AO failed to use official channel and power confer on him to
ensure the presence of these persons for the purposes of answering the query
of the AO. In our view, failure on the part of the AO to use the official machinery
to enforce the attendance of these persons cannot prove the case of the AO or in
other words the AO has failed to discharge his onus to prove otherwise once the
assessee has discharge is primary onus.. It is for the AO to bring on record any
cogent evidence contradicting the bills, invoices, TDS returns and other
ITA No.352/Agr/2015 8 CO No.08/Agr/2017 contemporousness documents filed by the assessee to prove the genuineness of
the creditors in the assessment proceeding. Since needful was not been by the
AO in our opinion the deletion made by the ld. CIT(A) was in accordance with
law. In the result, the ground raised by the revenue challenging the deletion of
ofRs.25,15,775/- is dismissed.
Now the ground raised by the assessee against the sustenance the addition of
Rs.40,29,670/- by the CIT(A). It was submitted by the ld. AR that the assessee
had filed the document before the ld. CIT(A). However, the ld. CIT(A) has not
considered the application of the assessee filed for taking on record the
additional documents under Rule 46A of the Act. The CIT(A) has not considered
the evidence filed by the assessee which were in the nature of confirmation
letter invoices ledger account etc of three persons namely, Mohit Gautam,
Arvind Rawat and Deepak Gautam. The ld. AR had submitted that these
document filed by the assessee before the CIT(A) should be considered by the
tribunal and thereafter the appeal of the assessee be allowed.
Per contra, the ld. DR had oppose the consideration of these documents at this
stage and oppose the ground of the CO.
We have heard the rival contentions and have perused the material available on
record.
ITA No.352/Agr/2015 9 CO No.08/Agr/2017 11. Undoubtedly, the ld. CIT(A) had rejected the addition u/s 46A application of the
assessee on the pretext that the documents filed by the assessee were in the
nature of the additional ground / evidence filed by the assessee at the appellate
stage hence these document cannot be considered. Ordinarily we would have
allowed the consideration of the additional evidence by the ld. CIT(A).
However, in the present case, if we look into the ground raised by the assessee
in the cross objection filed before us (reproduced elsewhere) , it is amply clear
that assessee has not challenged rejection of Rule 46A application for
considering evidence filed by the assessee before the CIT(A). In our considered
opinion, it is for the assessee to urge his grievance by way of specific ground
challenging the action of the CIT(A) of rejecting the application u/s 46A. Since
there is no ground raised before us whereby the assessee has challenged the
order of the ld. CIT(A) for rejecting the application for filing the additional
document/evidence, in our view the assessee does not deserve any indulgence
from this Tribunal. Accordingly, the Ground No.1 of cross objection is
dismissed. Besides the above, we are of the opinionthat the assessee had failed
to substantiate the payment of Rs.40,29,670/- before the AO and also before
the CIT(A), no interference is called for at this stage.
The next ground raised by the Revenue which part of Ground No.1 with respect
of deletion of Rs.1,31,91,325/- pertaining to five creditors namely Gautam
ITA No.352/Agr/2015 10 CO No.08/Agr/2017 Associate, Mannilal and Sons, Ram Kumar and Sons, Kamal Sales Corporation
and Aporva Traders, in this regard, the ld. DR had drawn our attention to Para
2.6.1., 2.6.2, 2.6.3, 2.6.4 of the assessment order with the following effect
On the basis of the above it was submitted that the assessee was asked to
produce the creditors vide order sheet entry dated 25.02.2013. However, the
assessee failed to produce these creditors for verification and further it was the
case of the AO that all the invoices were raised between 04.01.2010 to
16.03.2010 pertaining to Gautam Associate, Mannilal and Sons, Ram Kumar
Sons and one of the bill was rasied by Mannilal on 26.01.2010(National
Holiday). It was submitted that the invoices raised did not have the proper PAN
and TAN number and invoice number. On the basis of the above said reasons
and also for the reason mentioned in the above mentioned in para 2.6.1 to 2.6.3
of the assessment order, the AO has made the addition of Rs.1,56,51,240/-.
Feeling aggrieved by the order, the assessee filed an appeal before the CIT(A)
and the ld. CIT(A) had deleted the additions of Rs.1,31,91,325/-. The CIT(A) has
observed as under :
“I have gone through the submission of the appellant as well as assessment order and I find that the appellant had furnished all the relevant details i.e. bills / invoces, confirmation, copy of account of all the six parties along with all the books of account. After filing the relevant information, the AO had issued letters u/s 133(6) to all the six parties. In response to letters issued u/s 133(6), the AO had received back one letter undelivered with the postal remark "Is naam ka koi nhihai” which was sent to M/s Manish Enterprises. The AO had not received any reply from remaining five parties namely M/s
ITA No.352/Agr/2015 11 CO No.08/Agr/2017 Gautam Associates/ Manilal& Sons, Ram Kumar & Sons, Kamal Sales Corporation and Apoorva Traders. The AO has made the addition of Rs. 1,56,51,240/- because the appellant could not produce the suppliers and letters issued u/s 133(6) remain uncomplied in case of five suppliers. Except this, the AO could not place any material on record to establish that the purchases were not genuine. The AO has also accepted the sales, which were effected only out of purchases. After considering of all these facts I am of the considered opinion that the addition of Rs. 1,31,91,325/- (Rs.22,26,724/-, 21,71,453/-, 28,06,810/- ,10,68,594/-and 49,17,744/- of purchases from Gautam Associates, Manilal& Sons, Ram Kumar & Sons, Kamal Sales Corporation and Apoorva Traders respectively) is not sustainable because the appellant had furnished all the relevant details i.e. bills, books of account and the letters issued u/s 133(6) of the Act not returned undelivered. So far the addition of Rs. 24,59,915/- of purchases from M/s Manish Enterprises is concerned, although the appellant had submitted all the relevant details i.e. bills, books of account etc. But, after filing all these details, the letter issued u/s 133(6) returned undelivered. Meaning thereby, the existence of M/s Manish Enterprises could not be established. Accordingly, the addition of Rs. 24, 59,915/- is hereby confirmed.”
14.1 The ld. CIT(A) has confirmed the addition in respect to Manish Enterprises for
an amount of Rs.24,59,915/-.
Feeling aggrieved by the deletion of Rs.131,91,325/-, the Revenue is in appeal
(part of Ground No.1) and the assessee is in appeal( ground no2 ) in respect of
amount of Rs.24,59,915/- sustained by the ld. CIT(A).
Ground of revenue
15.1 The ld. DR had submitted in written submission that at page 64, the ld. CIT(A)
has mentioned that“ the dispatch of goods, date of receipt of goods, gate entry
number, verification are concerned and related to case laws for excisable
goods”.
ITA No.352/Agr/2015 12 CO No.08/Agr/2017 15.2 It was submitted that unless the assessee proves the receipt of goods, the
payment cannot be made for such receipt of good and further since the assessee
unitis excisable therefore, all these records are required to be maintained and
produced by the assessee for the purposes of proving the purchase of these
articles.
15.3 The ld. DR further submitted that the assessee has not produced these persons
in the assessment proceeding and therefore, the deletion made by the ld. CIT(A)
was without any basis.
15.4 In rebuttal ld. AR submitted that the as per the assessment order, assessee is a
contractor and is in the service of providing firefighting service including
supply of firefighting equipment and job works. Therefore, the rules of excise
Act are not applicable as contended by the DR.
15.5 In this regard, the ld. AR submitted that once the assessee has given all the
relevant information along with address and confirmation to the AO and the AO
had issued the notice u/s 133(6) and the notice of the AO enable then it is for
the AO to take coercive action to ensure the presence of these persons.
15.6 The ld. AR had submitted that the assessee in the proceeding before the lower
authorities has submitted that the confirmations were produced before the
lower authorities, giving the date of confirmation and address of the creditors.
ITA No.352/Agr/2015 13 CO No.08/Agr/2017 Further, it was the case of the AR that the AO has not brought on record that the
confirmation letter given by the assessee was forged and fabricated.
We have heard the rival contentions and have perused the record of the case
The assessment order clearly shows that the nature of the business of the
assessee which mention that the assessee is in the firefighting service including
supply and installation of firefighting equipment and job work. If we look into
the invoices scan and reproduced by the AO in the assessment order (Pgs. 9 to
12), it is clear that these were the goods purchased by the assessee namely
butterfly area tank, Hydrant Valve, House Pipe Red Color, Sprinkler Head, MSC
Glass Pipe which clearly shows that these are the articles which were required
to be used for the purposes of firefighting service including supply and
installation of firefighting equipment and job work. Prime facie the activities of
the assessee do not attract payment of excise duties as they are primarily in the
nature of rendition of services/installation of firefighting equipment at site and
hence do not required excise registration. Further the assessing officer has not
brought on record in the form of some evidence that shows the activities of the
assessee comes within the purview of excise laws and therefore the adverse
inferences required to be drawn in favour of the assessee and against the
revenue. Further in our view the opinion of the AO that merely because the
excise No., TIN no etc were not mentioned would not make the expenditure
ITA No.352/Agr/2015 14 CO No.08/Agr/2017 disallowable. The test for allowing the expenditure is laid down in section 37 of
the income tax Act which provides that the expenditure should have been
incurred wholly and exclusively for the purpose of business . No finding of fact
has been given by the assessing officer, stating therein that the expenditure
were not incurred for the purpose of business.The assessee, undoubtedly is in
the activity of rendering the services and installation of firefighting equipment.
This firefighting equipment are required to be installed at the premises of
clients of the assessee. In view of the above we do not find any merit in the
conclusion of the assessing officer for disallowing the expenditure incurred by
the assessee and further we found no error in the conclusion drawn by the CIT
A whereby he had disallowed the disallowance made by the assessing officer
for than amount of Rs.131,91,325/-.
Further from the perusal of the order of the assessing officer it is amply clear
that the notices issued under section 133(6) were duly received by the five
persons namely Gautam Associate, Ram Kumar and Sons, Aporva Traders.
However, the reply to this said notices had not been filed by the said persons
nor they have attended hearing. In our view, the logical andconsequential steps
were required to be taken by the AO to ensure the presence of these persons by
invoking his power bestowed on him under section 272 A of the Act. Needful
was not done by the AO to enforce the presence of these persons. Therefore,
ITA No.352/Agr/2015 15 CO No.08/Agr/2017 AO failed to discharge his onus hence the detailed furnished by assessee in the
form of name and address invoices purchase of order bank account goes
unrebutted.It is for the AO to bring on record the evidence falsify the
confirmation and the invoices issued by these persons ,were not genuine . The
genuineness of the invoices and confirmation cannot be doubted merely on the
assumption that these 5 persons have not responded to the notices of the AO
despite the receiving the notice u/s 133(6), cannot be of ground to made the
addition. In our humble understanding, the coercive action has not been taken
by the AO to ensure the presence and attendance of these persons. AO take the
benefit of his own lapsesby not completeness the provisions of law. In view of
above, we do not find any error in the order passed by the CIT(A) and
accordingly appeal of the Revenue is dismissed.
GROUND NO.2 OF CO OF ASSESSEE
The assessee in the CO has challenged the order of the CIT(A) whereby he has
sustained the addition of Rs.24,59,915/- and in this regard it was submitted by
the ld. AR that the assessee had filed the confirmation of account of M/s Manish
Enterprises before this Tribunal (Pages 13 to 18) and had also filled same bills
and ledger. It was submitted that the ld. CIT(A) has not considered these
documents filed by the assessee before the ld. CIT(A).
ITA No.352/Agr/2015 16 CO No.08/Agr/2017 19. Per contra, the ld. DR had submitted that notice u/s 133(6) of the Act the M/s
Manish Enterprises return back showing that no such person lives at that
address (Iss Naam Ka Koi Nahi Hai). It was submitted that once the assessee
failed to furnish the complete address of Manish Enterprises , the notice sent to
this person returned back to AO as undelivered then the order passed by the
CIT(A) cannot be faulted with, as the assessing officer has no means to verify
and confirm the transaction.
We have heard the rival contentions and have perused the material available on
record. In the written submission of the assessee, reproduced by the ld. CIT(A)
in respect to Manish Enterprises at Pages 48 to 52, the assessee was not able to
answer as to why the letter sent to Manish Enterprises came back undelivered
with the postal remark Iss Naam Ka Koi NahiHai.. The confirmation placed on
the record in respect of Manish Enterprises at Page 15 of the paper book, given
the date of confirmation as 01.04.2011 whereas the assessment order was
passed by the AO on 22.03.2013 and the notice u/s 143(2) was signed on the
assessee 27.09.2011 if it is presume that the confirmation was in existence at
the time of issuance of the notice then this confirmation should have been filed
before the authorities below at the appropriate stage. The said confirmations
were not filed before the lower authorities and therefore, the same cannot be
ITA No.352/Agr/2015 17 CO No.08/Agr/2017 considered at this stage in the absence of any application for considering the
additional document.
In the result, we do not find any error as the assessee has failed to establish the
identity of the creditors by furnishing the correct address and PAN number.
Hence, the ground raised by the assessee in the CO is dismissed.
Ground 2 of the revenue appeal pertains to the deletion of ₹ 1 lakh. In this
regard the ld. AR has not oppose the ground of the revenue and has submitted
that the matter may be decided in accordance with law.
We have heard the rival contention of the parties and perused the record. The
learned DR had not made any submissions in this regard and has merely relied
upon the order passed by the lower authorities. On the contrary there was no
objection by the assessee for allowing this ground of the revenue. In the result
the ground raised by the revenue is allowed on account of the concession given
by the assessee.
In the result the appeal of the revenue is partly allowed and the CO of the
assessee is dismissed
(Order pronounced in the open court on 19/08/2019
Sd/- Sd/- (Dr. Mitha Lal Meena) (Laliet Kumar) Accountant Member Judicial member Dated: 19/08/2019 Aks Tour
ITA No.352/Agr/2015 18 CO No.08/Agr/2017
Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order
Assistant Registrar Income Tax Appellate Tribunal Agra Bench, Agra