SHRI PANKAJ D DUBEY,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-26(2), MUMBAI

ORDER PER N.K. PRADHAN, A.M. The appeal by the Assessee is directed against the order of the Commissioner of Income Tax (Appeals)-38 [in short ‘CIT(A)], Mumbai and arises out of the assessment order passed by the Assessing Officer (AO) u/s 143(3) of the Income Tax Act 1961, (the ‘Act’). Though, the case was fixed for hearing on 27.01.2020 neither the assessee nor his authorized representative appeared before the Tribunal on the above date. In view of the non-compliance by the assessee, we are proceeding to dispose off this appeal after perusing the materials available on record and hearing the Departmental Representative (DR).

It is recorded by the AO that in response to a query raised by him to substantiate the claim of fuel and oil expenses ; loading and unloading expenses, the assessee failed to file vouchers for verification. On the basis of the above observation, the AO made a disallowance of Rs.31,70,269/- (10% of total expenses of Rs.3,17,02,694/-).

“3. During the course of assessment proceedings various details in relation to the income derived by the assessee have been called for. The details called for Shri Pankaj D Dubey have been duly submitted by the assessee and which have been verified. Based on the verification of details and submissions furnished by the assessee, the assessment proceeding was completed as under.”

In such a scenario, we deem it fit to come to a finding that the disallowance estimated by the AO is excessive. Considering the facts of the case, we direct the AO to restrict the disallowance to 5% of the expenses of Rs.3,17,02,694/-. Thus the 1st ground of appeal is partly allowed.

6. The 2nd ground raised by the assessee in this appeal is against the order of the Ld. CIT(A) confirming the order of the AO on non-issuance of income tax refund.

The above ground was raised by the assessee before the Ld. CIT(A). We find that vide order dated 31.07.2017 the Ld. CIT(A) dismissed the above ground of the assessee by observing that :

“3. The second ground of appeal raised by the appellant is with regard to non-issuance of income tax refund amounting to Rs.4,83,629/-.

3.1 It is observed that the appellant has neither made any submission in regard to the aforesaid ground in the Statement of Facts filed with the appeal in Form No. 35 nor during the course of appellate proceedings despite the fact that several opportunity had already been provided to the appellant. The fact remains that there has been an addition of Rs.31,70,269/- made by the AO to the total income of the appellant by disallowing the total loss of Rs.32,43,080/- claimed by the appellant. Since the aforesaid addition stands confirmed vide this order and in absence of any details furnished by the appellant in this regard, the aforesaid ground of appeal is treated as dismissed.”

6.1 The issue here is non-issuance of tax refund of Rs.4,83,629/-. It is not proper on the part of the Ld. CIT(A) to summarily reject the claim of the assessee for tax refund. Having considered the facts of the case, we set

Shri Pankaj D Dubey Ld. CIT(A) and direct the AO to verify the claim of tax refund of Rs.4,83,629/- made by the assessee and allow refund as per the provisions of the Act. We direct the assessee to file the relevant documents/evidence before the AO. Thus the 2nd ground of appeal is allowed for statistical purposes.