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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
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.
Grounds raised by the Revenue read as under : “1. Whether on the facts and circumstances of the case, the Ld.CIT(A) was right in admitting the additional evidences despite the objection of the AO relating to addition offered vide his letter dated 30- 09-2011 during the course of assessment proceedings. 2. Whether on the facts and circumstances of the case, the Ld.CIT(A) was correct in admitting the claim of the assessee that the additional income/receipt of Rs.48,10,087/- offered during the assessment for the difference of ITS data relating to such transport/sales receipt and receipts shown in the books related to his brothers without relevant and cogent evidences ? 3. Whether on the facts and circumstances of the case, the Ld.CIT(A) was correct in treating the receipts appearing on the PAN of the assessee to be relating to other persons, even when such a
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?
At the outset, Ld. DR for the Revenue brought our attention to
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’.
On hearing both the sides and considering this fact, we are of
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.
Ground Nos. 2 and 3 raised by the revenue are interlinked and
the issue emanating from these grounds relates to addition of
Rs.48,10,087/- and unfavourable decision of the CIT(A).
Background facts of this issue are that there exists
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.”
From the above, it is evident that the assessee offered additional
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.
Narrating the facts, Ld. DR for the Revenue submitted that the
assessee filed a letter offering additional income of Rs.47,87,587/-.
Retracting the same, assessee made different submissions and filed
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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.
Per Contra, Ld. AR for the assessee submitted that the total
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.
Regarding the balance amount of Rs.13,30,587/- (i.e.,
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.
Considering the absence of any speaking order on each of the
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.
In the result, the appeal of the Revenue is partly allowed for
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