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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 423 & 488/JPR/2023
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 423 & 488/JPR/2023 fu/kZkj.k o"kZ@Assessment Years : 2017-18 J.S. Fourwheel Motors (P) Ltd. cuke ACIT, Vs. Near Octrio Post, Old Delhi Road, Circle-1, Alwar. Alwar. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACJ 4839 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assesseeby :Shri P. C. Parwal (C.A.) jktLo dh vksj ls@Revenue by: Shri Ajey Malik (CIT) lquokbZ dh rkjh[k@Date of Hearing : 27/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 30/11/2023 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. These are two appeals filed by the assessee against two separate orderof the National Faceless Appeal Centre, Delhi [herein after referred to as “NFAC/ld.CIT(A)”]both dated 22.05.2023 & 05.06.2023 for the assessment years 2017-18 respectively. 2. Since the facts of both the cases are identical, we have heard these cases together and passing the order together.
2 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT 3.1 The assessee in has raised the following grounds of appeal:- “1. The learned Commissioner of Income-Tax (Appeals), has erred on facts and in law in dismissing the appeal by incorrectly presuming that assessee has settled the appeal by filing declaration under VSVS for which certificate dt. 16.12.2020 has been issued by ld PCIT ignoring that the said certificate is with reference to appeal filed against penalty appeal (Acknowledgement number274221141181219) not against the quantum appeal (Acknowledgement number 270293681101219).
2. Ex-parte assessment order That the ld. AO has erred in law as well as on the facts and circumstances of the case in framing an order under section 144 of the Income Tax Act, 1961, whereas the assessee company has submitted all the desired information, details and evidences through online mode, before framing of the assessment order and lying on the assessment record, which have partly been considered on pick and choose basis and additions so made are just on the presumption, assumption and surmises of the ld. AO. The AO was bent upon in framing the ex-parte assessment order and there was ample time for framing the assessment by considering the material submitted and lying on record, thus the assessment order is against the principle of natural justice, equity and fair play and deserves to be quash on this ground and the CIT (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit. 3 Double Taxation of the same income. That the ld. AO has erred in law as well as on the facts and circumstances of the case in considering a sum of Rs. 11630274.00 as income from house property, whereas the said have already been considered by the assesse company under the head income from business, and the relevant material is already on assessment record, thus the said income have suffered double taxation, which is against the decision of hon.ble Supreme Court and also erred in making an addition of Rs. 8141192.00/- to the Income from House Property and the Id AO has not given any opportunity before making the addition. Thus the addition so made is just on the presumption, assumption and surmises of the ld. AO and the CIT (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
4. Section 24 rent from Nirmal Cars (P) Ltd. That the ld. assessing officer has erred in law as well as on the facts and circumstances of the case in adding a sum of Rs. 1002754.00 being the rent received from Nirmal Cars (P) Ltd, which have already been included under the hire charges account and the details of such income have been submitted and lying on the assessment record, but the same have not been appreciated by the ld. assessing officer and the id assessing officer has not given any opportunity before making the addition and the Commissioner of Income- Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
3 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT 5. Section 24 Commission from TATA AIG General Co. Ltd That the ld. assessing officer has erred in law as well on the facts and circumstances of the case in making an addition of Rs. 10627520.00 being the commission received from TATA AIG General Co. Ltd in considering the same as rental income, whereas the same is commission income and have also been considered and included in the income under the head profit and gain from Business and Profession, and the necessary details have been submitted during the course of assessment proceedings and lying on the assessment record, which have not been considered by the assessing officer and the ld. assessing officer has not given any opportunity before making the addition and the Commissioner of Income- Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
6. Section 43B Disallowance on account of non-payment of sum before due date of filing of return of income. That the ld. assessing officer has erred in law as well as on the facts and circumstances of the case in making an addition of Rs. 2910610.00/- to the income on account of non-payment of certain sum before the due date of filing of return of income in terms of section 43B of the Income Tax Act, 1961, whereas the said payment are evidenced by the tax audit report filed and lying on the assessment records, thus the additions so made are factually incorrect and deserves to be deleted and the Id assessing officer has not given any opportunity before making the addition. The addition so made are just on presumption, assumption and surmises of the Id. Assessing Officer and the Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
Section 32 Disallowance of depreciation That the Id. assessing officer has erred in law as well as on the facts and circumstances of the case in making a disallowance out of depreciation of Rs. 3303401.00/-on account of not producing evidences of addition to the fixed assets and adding it back to the income of assesse company and without providing any opportunity to the assess company before making the addition, whereas the assesse company is having every evidence, bills, and vouchers of the additions in the fixed assets and books of accounts are subjected to audit under the provision of Companies Act 1956 and under section 44AB of the 1.Tax Act 1961 and the Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
8. Section 37 Disallowance of Donation That the ld. assessing officer has erred in law as well as on the facts and circumstances of the case in making a disallowance of donation of Rs. 22300.00/- and adding it back to the income of assesse company and the Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
9. Section 37 Disallowance of expenses That the ld. Assessing Officer has erred in law as well as on the facts and circumstances of the case in making an adhoc disallowance of expenses of Rs. 1360956.00 being 10 percent of the specified exp, which is against case history and previous assessment order of the same assessing officer, and erred in adding 4 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT it back to the income of assessee company, whereas the assessee company is having every details, bills, and vouchers of such expenses, therefore no disallowance should have been made and the ld. Assessing Officer has not given any opportunity before making the addition. The disallowance so made is just on presumption, assumption and surmises of the ld. Assessing Officer and the Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
Section 156 Creation of Demand That the ld. Assessing Officer has erred in law as well as facts and circumstances of the case in creating a demand of Rs. 4197923.00/- in terms of section 156 of the Income Tax Act, 1961 and the Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.
Section 270A Penalty Proceedings that the ld. Assessing Officer has erred in law as well as facts and circumstances of the case in initiating penalty proceedings in terms of section 270A of Income Tax Act, 1961 and the Commissioner of Income Tax (Appeals) has erred in not giving any finding thereon and also erred in not disposing off the this ground on merit.”
3.2. The assessee in has raised the following grounds of appeal:- “1. Ground No. 1 The learned Commissioner of Income-Tax (Appeals), has erred on facts and in law in dismissing the appeal by incorrectly presuming that assessee has settled the appeal by filing declaration under VSVS for which certificate dt. 16.12.2020 has been issued by ld PCIT ignoring that the said certificate is with reference to appeal filed against penalty appeal (Acknowledgement number274221141181219) not against the quantum appeal (Acknowledgement number 992510830240323).
2. Judicial Precedence:- That the ld. FAO/AUITD/NFAC has erred in law as well as on the facts and circumstances of the case in not following the decision of various courts as submitted during the course of hearing and quoted by the ld FAO/AUITD/NFAC, which is against the principle of judicial precedence, thus the order which have been passed in disregard of the judicial precedence is null and void and deserves to be quashed and ld Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon.
3. Not allowing the deduction u/s 37 of the Income Tax Act, 1961:- That the ld. FAO/AUITD/NFAC has erred in law as well as on the facts and circumstances of the case in not giving the deduction of Rs. 636097.00 within the meaning of section 37(1) of the Income Tax Act, 1961 being incurred wholly, exclusively and necessarily for the 5 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT purpose of the business of the assessee company and the Id Commissioner of Income-Tax (Appeals), has erred in not giving any finding thereon.”
Brief fact of the case are that the assessee company filed ITR on 17.10.2017, declaring its total income at Rs. 4,44,08,652/- (rounded off to Rs. 4,44,08,650/- u/s 288A) & deemed total income u/s 115JJB at Rs. 4,76,63,855/- which was revised on 17.09.2018, declaring its total income at Rs. 4,60,71,567/- and deemed total income of Rs. 4,76,63,855/-. The case was selected for scrutiny through CASS and accordingly, a notice u/s 143(2) of the Act dated 09.08.2018 was issued to the assessee company which stands duly served upon the assessee company electronically through E-mail. Consequently, notice u/s 142(1) of the Act dated 25.04.2019, 19.06.2019, 30.07.2019 and 07.10.2019 were issued requiring the assessee company to furnish certain details/documents. However, all these notices remained responded. Therefore, a final notice u/s 142(1) dated 25.11.2019 were issued and ultimately the assessment was completed under section 144 of the Act.
In both the appeals findings of the ld. CIT(A) has considering the fact that the assessee has filed a Vivad se Vishwas Scheme -2020 and has accordingly taken the benefit of that scheme and accordingly both the appeals of the assessee was dismissed. The relevant finding of the ld. CIT(A) which being similar in both the “it is seen that the appellant has opted for Vivad se Vishwas Scheme and has filed a declaring in accordance with the provisions of Section 3 of the Direct Tax Vivad se Vishwas Scheme -2020 (“the Act”) before the PCIT, Alwar. Accordingly, certificate under sub-section (1) of section 5 of the Act was issued to the appellant. Pursuant thereto, the PCIT, Alwar has certified the full and final settlement of tax arrear and has passed an order under sub-section (2) of Section 5 of the Act on 16.12.2020. Further, under sub-section (2) of Section 4 of the Act provides that the appeal shall be deemed to have been withdrawn from the date on which certificate under sub-section (1) of section 5 of the Act is issued by the designated authority. Since in the instant case a certificate under sub-section (1) of section 5 of the Act is issued as discussed above, the appeal may be treated as withdrawn. As a result, the appeal is dismissed for statistical purposes.”
Aggrieved from the above order of the ld. CIT(A) the assessee has preferred the present appeal on the grounds is reproduced hereinabove in the respective appeal of the assessee. Apropos to the appeal so filed by the ld. AR of the assessee submitted that the assessee availed the benefit of provisions of section of Vivad se Vishwas Scheme-2020 only in respect of the penalty levied by the lower authorities. The assessee has not taken any benefit in respect of the quantum addition disputed in an appeal which was preferred before the ld. CIT(A) and as the same is not subjected to the coverage of Vivad se Vishwas Scheme-2020 the finding of the ld. CIT(A) is on wrong persuasion of the fact.
7 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT 7. Per contra, the ld. DR representing the Revenue submitted that the assessment order in this case is an ex-parte and there is no representation from the side of the assessee and therefore, since the coverage of the Vivad se Vishwas Scheme-2020 as well as to the issue raised by the ld. AO is not apparently decided by the ld. CIT(A) considering that factual aspect of the matter that the assessment order is also passed ex-parte under the provisions of section 144 of the Act, ld. DR prayed that the issue be set aside to the file of the Assessing Officer in both the appeal and let the assessing officer pass an appropriate order in respect of both the appeals.
We have heard both the parties and perused the materials available on record. The Bench observed that the assessee was really lethargic and unserious in pursuing his case in spite of providing various opportunities by the ld. CIT(A) and ld.AO as mentioned in their orders. The assessee did not appear or filed any reply to the notices which were issued by the ld. AO during the assessment proceedings, finally the assessment was completed ex-parte u/s 144 of the Act. Further, we observed that the before the ld. CIT(A) the same has not been properly explained and thereby the order has been passed considering the fact that the assessee has opted for VSVS in the dispute. Considering the overall aspect of the matter we remit back the issues raised in both the appeal be considered by the ld. AO a fresh
8 & 488/JPR/2023 J.S. Fourwheel Motors (P) Ltd. vs. ACIT without any prejudice and at the same time assessee is also directed to present all the facts related to their case. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course this set aside proceedings before the ld. AO.
Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law.
In the result, the appeals of the assessee are allowed for statistical purposes.
Order pronounced in the open court on 30 /11/2023. Sd/- Sd/- ¼ jkBkSM+ deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 30/11/2023 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- J.S. Fourwheel Motors (P) Ltd., Alwar. 2. izR;FkhZ@ The Respondent- ACIT, Circle-1,Alwar. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr ¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File & 488/JPR/2023) vkns'kkuqlkj@ By order,
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