DEPUTY COMMISSIONER OF INCOME-TAX vs. SHRI ISHWAR BIRBAL SHARMA, PUNE

आदेश / ORDER आदेश आदेश आदेश

PER D. KARUNAKARA RAO, AM :

This appeal is filed by the Revenue against the order of CIT(A)-I,

Nashik dated 27-02-2015 for the A.Y.2009-10.

2 ITA No.648/PUN/2015 Ishwar Birbal Sharma

contention would require existence of a partnership firm or AOP or as the case may be and the assessee has not furnished any such evidence?

Ground No.1 of the appeal and submitted that it is a case where CIT(A)

called for a remand report from the AO before the additional evidences

were admitted and relied upon. There is no violation as the CIT(A) has

rightly given opportunity to the AO. Therefore, the above ground

raised by the revenue may be dismissed as ‘not pressed’.

the opinion that the ground raised by the Revenue is unsustainable

since there is no violation to the set principles of natural justice as the

CIT(A) met the requirement of granting opportunity to the AO.

Accordingly, Ground No.1 raised by the Revenue is dismissed.

the issue emanating from these grounds relates to addition of

Rs.48,10,087/- and unfavourable decision of the CIT(A).

discrepancies with reference to the receipts as per the ITS data relating

to the transport/sales receipts and the receipts shown in the books of

account of the assessee. During the assessment proceedings, the AO

granted opportunity to the assessee to reconcile the differences

between the ITS data and the entries in the books of account. In

response, assessee filed written submissions giving detailed

explanation. Unsatisfied with the said explanation, AO proceeded to

make addition of the said amount on this account. Contents of Para

No.4 constitutes operational para and the same is extracted as under :

3 ITA No.648/PUN/2015 Ishwar Birbal Sharma

“4. On going through chart, it can be noticed that there was huge difference in receipts as per ITS details and as per books. During the course of hearing dated 04-11-2011, the assessee was provided ITS data for reconciliation, however, the assessee pointed out that the difference in ITS data and books of account has already been suo moto offered for tax vide letter dated 30-09-201. The copy of the said letter was filed during the course of hearing dated 04-11-2011. On going through the letter submitted by the assessee, it was noticed that the assessee has shown total transport receipt of Rs.3,49,23,387/- in his books of account and additional receipts of Rs.47,87,587/- has been offered through this letter. But the assessee has not offered difference of Rs.22,500/- in the case of M/s. Shreya Industries in his letter. On asking, the assessee clarified that the company has not received a sum of Rs.22,500/- from this concern and claimed that there may be mistake in ITS data. However, no clarification from deductor was submitted. In the circumstances, it is held that the assessee has suppressed transport receipt to the extent of Rs.22,500/- also along with other suppressed receipt of Rs.47,87,587/-. Accordingly, the aggregated amount of Rs.48,10,087/- is treated suppressed transport receipt under consideration and added to the total income of the assessee. Since the assessee has concealed particulars of income, the penalty u/s.271(1)(c) r.w. explanation 1 thereto is initiated.”

receipts of Rs.47,87,587/- by filing a letter. However, during the First

Appellate proceedings, assessee made an attempt for fresh

reconciliation and also submitted the fact that some of the receipts do

not pertain to assessee as they were also offered in the hands of other

concerns. Contents of assessee’s submissions vide letter dated

14-09-2014 are relevant. Infact, they were already extracted by the

CIT(A) in Para Nos. 5 and 7 of his order. Eventually, the CIT(A)

allowed the appeal of the assessee on this issue and gave certain

directions to the AO. The contents of Para 8 are relevant and the same

are extracted here as under :

“8.. . . . . However, the AO is directed to write to the AOs of M/s. Express Cargo Corporation and M/s. Express Cargo Containers to verify the said transactions as suggested by him in his remand report dated 01-08-2014 and take action, if any, required to be taken in their respective hands after verification of the said transactions.” Aggrieved with the same, the Revenue is in appeal before us.

assessee filed a letter offering additional income of Rs.47,87,587/-.

Retracting the same, assessee made different submissions and filed

4 ITA No.648/PUN/2015 Ishwar Birbal Sharma

additional evidences before the CIT(A) who allowed the appeal of the

assessee on this issue. Revenue is aggrieved against the decision of

CIT(A). It is the prayer of Ld. DR that order of the AO should be

upheld.

discrepancy amounts to Rs.47,87,587/- out of which the discrepancies

with regard to M/s. Express Cargo Corporation works out to

Rs.28,12,023/-and M/s. Express Cargo Containers works out to

Rs.6,57,614/-. Bringing our attention to pages 43 and 50 of the paper

book, Ld. AR for the assessee submitted that these amounts were

already accounted in their accounts for the A.Y. 2009-10 and the said

pages of the paper book constitutes confirmation letters in this regard.

Rs.47,87,587 – Rs.34,57,000), the order of CIT(A) is deficient and it

lacks speaking order on these item-wise reconciliation and the reasons

for granting entire relief to the assessee. When this issue is brought

out to the Ld. Counsels of both the parties, they concurred on the

proposal to remand the matter to the file of CIT(A) for item-wise

reconciliation and passing of a speaking order on each of such items

requiring the reconciliation.

item with discrepancies qua the books of account of the assessee, we

are of the view that as mentioned in the open court, the matter should

travel to the file of CIT(A) for fresh decision for want of a speaking

order. CIT(A) should also consider the action taken report, if any by

the AO, with regard to the direction involving the cases of M/s.

Express Cargo Corporation and M/s. Express Cargo Containers at the

time of passing of the final order. Reasonable enquiry may be

5 ITA No.648/PUN/2015 Ishwar Birbal Sharma

considered to find out if the sum of Rs.28,12,023/- and Rs.6,57,614/-

are taxed in some hands. CIT(A) shall grant reasonable opportunity of

being heard to the assessee in accordance with set principles of

natural justice. With these directions, Ground Nos. 2 and 3 are

allowed for statistical purposes.

statistical purposes.

Order pronounced in the open court on this 17th day of January, 2018.

Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) �याियक �याियक सद�य �याियक �याियक सद�य सद�य /JUDICIAL MEMBER लेखा सद�य लेखा लेखा सद�य लेखा सद�य सद�य / ACCOUNTANT MEMBER सद�य

पुणे Pune; �दनांक Dated : 17th January, 2018. सतीश आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to : आदेश क� �ितिलिप अ�ेिषत आदेश क� �ितिलिप अ�ेिषत

अपीलाथ� / The Appellant 1. ��यथ� / The Respondent 2. 3. CIT(A)-1, Nashik 4. CIT-1, Nashik िवभागीय %ितिनिध, आयकर अपीलीय अिधकरण, “A Bench” 5. Pune; गाड� फाईल / Guard file. 6. आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार

स�यािपत �ित //True Copy// Senior Private Secretary //True Copy// आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune