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Income Tax Appellate Tribunal, CUTTACK
Before: SHRI N.S SAINI
This is an appeal filed by the assessee against the order of CIT(A)-
Cuttack, dated 17.10.2014, for the assessment year 2009-2010.
The assessee has filed modified grounds of appeal on 17th January, 2.
2017. Ld Departmental Representative had no objection to accepting and
adjudicating the same. Hence, the modified grounds of appeal were
accepted and the parties were allowed to make their submissions thereon.
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Ground Nos.1 & 5 of the appeal are general in nature and hence does
not require separate adjudication by me.
In Ground No.2 of the appeal, the grievance of the assessee is that
the CIT(A) erred in confirming the addition of Rs.4,95,400/- u/s.68 of the
Act.
I have heard the rival submissions and perused the orders of lower
authorities and materials available on record. The Assessing Officer
observed that the assessee has sown credit balance in the current account
at Rs.4,95,400/- for the first time. This balance has been transferred to the
capital account of the assessee. The Assessing Officer required the assessee
to explain the source of such credit balance but the assessee felled to
explain the same satisfactorily. Therefore, the Assessing Officer added the
same under section 68 of the Act.
On appeal, the CIT(A) confirmed the action of the Assessing Officer.
Before me, ld Authorised Representative of the assessee submitted
that it will be observed from pages 5 and 6 of the paper book, wherein, the
ledger account of proprietary business of the assessee Sidhivinayak Tyres
and Tarini Engineering is placed. Ld A.R. of the assessee submitted that at
pages 30 to 37 of the paper book, copies of balance sheet of the proprietary
business Sri Baladevjew Fuel Centre , Sidhi Vinayak Tyres and Tarini
Engineering are filed. From these copies, it can be seen that the assessee
was having credit balance in the current account as on 31.3.2009 of
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Rs.14,86,248/- in Sri Baladevjew Fuel Centre, overdrawn balance in the
current account in Sidhi Vinayak Tyres of Rs.7,77,126/- and overdrawn
balance in the current account in Tarini Engineering 2,13,722/-. He
submitted that sum total of the balances of current account in the three
firms works out to Rs.4,95,400/-, which has been added in the capital
account of the assessee. A chart of three proprietorship business as on
31.3.2009 is filed at page 1 of the paper book, which explains the capital
account as on 31.3.2009 of the Proprietor Shri Chandan KIumar Sahu.
Hence, he submitted that the addition made and sustained of Rs.4,95,400/-
was not justified.
Ld Departmental Representative could not controvert the above
submission of ld Authorised Representative of the assessee.
I find that the addition of Rs.4,95,400/- has been made u/s.68 of the
Act on account of unexplained credit in the capital account. The explanation
of the assessee is that the credit balance in the current account of the
assessee in his three proprietary business of Rs.14,86,248/- in Sri
Baladevjew Fuel Centre, overdrawn balance in the current account in Sidhi
Vinayak Tyres of Rs.7,77,126/- and overdrawn balance in the current
account in Tarini Engineering 2,13,722/- respectively and the net results of
which works out to Rs.4,95,400/-. Which has been added in the capital
account of the assessee. The explanation of the assessee has not been
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controverted by the ld D.R. Therefore, I am of the considered opinion that
aggregate amount of Rs.4,95,400/- has been duly explained by the
assessee by filing the relevant copies of profit and loss account of three
proprietary business of the assessee, which remained uncontroverted by
the revenue. Hence, the addition made cannot be sustained in law. I,
therefore, set aside the orders of lower authorities and delete the addition
of Rs.4,95,400/- and allow this ground of appeal of the assessee.
In Ground No.3 of the appeal, the grievance of the assessee is that
the CIT(A) erred in sustaining the addition of Rs.6,65,000/- u/s.68 of the
Act.
I have heard the rival submissions and perused the orders of lower
authorities and materials available on record. The brief facts of the case
are that the Assessing Officer found that a sum of Rs.6,65,000/- has been
credited to the account of Tarini Engineering on different dates. The
Assessing Officer asked the assessee to explain the credits with necessary
evidence. The assessee replied that the amount has been withdrawn from
another partnership firm namely, M/s.Jagannath Engineering Works. The
Assessing Officer observed that the assessee did not show any income from
such firm and also did not produce any evidence of withdrawal of amount
from such firm. Hence, he added the same to the income of the assessee.
On appeal, the CIT(A) confirmed the action of the Assessing Officer.
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Before me, ld Authorised Representative of the assessee pointed out
from pages 5 -6 of paper book, wherein, ledger account of the firm Sidhi
Vinayak Tyres and Tarini Engineering are filed. He pointed out that sum of
Rs.2 lakhs on 24.12.2008, Rs.1,00,000/- on 16.2.2009 and Rs.1,00,000/-
on 2.3.2009 aggregating to Rs.4 lakhs was paid by Sishivinayak Tyres to
the firm Tarini Engineering in cash. He further pointed out that it will be
observed from bank statement of Sri Jagannth Engineering Works at State
Bank of India, Sikharpur that on 16.8.2009 a sum of Rs.2,65,000/- was
paid by Jagannath Engineering Works to the assessee Shri Chandan Kumar
Sahu and on the very same date i.e. 16.8.2008, the same was credited in
the bank account of the assessee. It was his submission that the total
credit of Rs.6,65,000/- is explained and, therefore, the CIT(A) was not
justified in confirming the addition of Rs.6,65,000/- u/s.68 of the Act.
Ld D.R. could not controvert the submission of ld Authorised
Representative of the assessee.
I find that the addition of Rs.6,65,000/- u/s.68 of the Act was made
by the Assessing Officer on the ground that the assessee explained that
Rs.2,65,000/- was received from Jagnath Engineering Works but the
assessee did not show any income from such firm and also did not produce
any evidence of withdrawal of amount from such firm.
Before me, ld Authorised Representative has filed bank statement of
Jagannath Engineering Works and has demonstrated that a sum of
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Rs.2,65,000/- was credited to the account of the assessee by cheque on
16.8.2008 drawn on State Bank of India, Sikharpur Branch and it was
credited on the same date i.e. 16.8.2008. Further, the assessee has shown
by filing ledger account of two firms i.e. Sidhivinayak Tyres and Tarini
Engineering works that a sum of Rs.4 lakhs was paid by Sidhivinayak Tyres
during the period from 24.12.2008 to 2.3.2009 to the assessee in cash,
which was credited by Tarini Engineering in its books of account. Thus, the
credit of Rs.6,65,000/- was duly explained by the assessee. The
explanation of the assessee has not been controverted by ld Departmental
Representative. Hence, I am of the considered opinion that the ld CIT(A)
was not justified in confirming the addition of Rs.6,65,000/- u/s.68 of the
Act. I, therefore, set aside the orders of lower authorities and delete the
addition of Rs.6,65,000/- made u/s.68 of the Act and allow this ground of
appeal of the assessee.
In Ground No.4 of the appeal, the grievance of the assessee is that
the CIT(A) erred in confirming the addition of Rs.5,64,521/- under the head
“labour charges” and “job works” u/s. 40(a)(ia) of the Act.
I have heard the rival submissions and perused the orders of lower
authorities and materials available on record. In the instant case, the
Assessing Officer found that the assessee has debited Rs.5,64,521/- under
the head “labour charges” and “job works. The Assessing Officer observed
that it was contract payment and no TDS was deducted u/s.194C of the Act
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and, therefore, by invoking the provisions of section 40(a)(ia) of the Act,
he disallowed Rs.5,64,521/- and added the same to the income of the
assessee.
On appeal, the CIT(A) confirmed the action of the Assessing Officer.
Before me ld Authorised Representative of the assessee submitted
that it was explained before the Assessing Officer as well as the CIT(A) that
entire amount was paid during the year itself and that provisions of section
194C of the Act were not applicable as the payment during the year did not
exceed Rs.50,000/-. It was also argued that no amount was outstanding
and payable at the end of the year. Therefore, in view of the decision of
Hon’ble Allahabad High Court in the case CIT vs. Victor Shipping Services
(P) Ltd., (2013) 357 ITR 642(All), wherein, it has been held that for
disallowing expenses from business and profession on the ground that tax
has not been deducted at source, the amount should be payable and not it
has been paid by the end of the year, ), no disallowance u/s.40(a)(ia) was
warranted in the case of the assessee. He further submitted that the SLP
filed against the judgment of Hon’ble Allahabad High Court has been
dismissed by the Hon’ble Supreme Court vide judgment dated 2.7.2014 in
CC No.(s) 8068/2014. He submitted that where there are contrary
decisions of Hon’ble High Courts on an issue and none of which is Hon’ble
Jurisdictional High court, then the decision in favour of the assessee should
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be followed in view of the decision of Hon’ble Supreme Court in the case of
CIT vs.Vegetable Products Ltd., 88 ITR 192 (SC).
In the facts and circumstances of the case, I find that there is no
amounting outstanding and payable at the end of the year. Therefore, I
set aside the orders of lower authorities and respectfully following the
decision of the Hon’ble Allahabad High Court in the case of CIT vs. Victor
Shipping Services (P) Ltd(supra) delete the disallowance of Rs.5,64,521/-
made u/s.40(a)(ia) of the Act and allow this ground of appeal of the
assessee.
In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 22/03/2017 in the presence of parties. Sd/- (N.S Saini) ACCOUNTANT MEMBER Cuttack; Dated 22/03/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Chandan Kumar Sahoo, N.H.5, Marshaghai, Kendrapara. 2. The Respondent. ITO, Ward-2, Paradeep. 3. The CIT(A) Cuttack 4. Pr.CIT, Cuttack 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// BY ORDER,
SR.PRIVATE SECRETARY ITAT, Cuttack