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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM &DR. A.L.SAINI, AM
सुनवाईकीतारीख/ Date of Hearing : 13/12/2021 घोषणाकीतारीख/Date of Pronouncement : 09/03/2022 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee pertaining to the assessment year 2011-12, is directed against the order passed by the ld.Commissioner of Income Tax(Appeals)-II, Surat[‘CIT(A)’ for short] dated 22.02.2016, which in turn arises out of an assessment order passed by the Assessing Officer (AO for short) u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide order dated 27.03.2014.
2. Grounds of appeal
raised by the assessee are as follows:- “1. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of income Tax (Appeals) has erred in confirming the action of assessing officer in rejecting book results u/s 145 of the I.T. act, 1961.
2. On the facts and in circumstances of the case as well as law on the subject, the learned CIT(Appeals) has erred in partly confirming the action of assessing officer in making the disallowance out of job charges by sustaining addition to the tune of Rs.6704324/- as against addition of Rs.12259837/- made by assessing officer.
3. It is therefore prayed that additions made by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted.”
Brief facts qua the issue are that assessee is engaged in the business of trading of cloth and sarees. During the course of assessment proceedings, Assessing Officer issued notice u/s 133(6) of the Act in respect of embroidery job work done by assessee. These notices u/s 133(6) were unserved in respect of the following parties: Sr. No Name of the Sale Party Amount ( In Rs) 1 4 X U Fashion 4,98,905 2 Kudrat Creation 6,26,310 3 Satyam Creation 17,01,850 4 Om Art 24,80,333 5 Vraj Fashion 23,07,280 6 Deep Creation 4,49,045 7 Angel Fabrics 10,12,523 8 Darshan Fashion 1,77,180 9 Shree Ganesh Fashion 7,74,870 10 Maruti Nandan Textile 8,44,988 11 Jahanvi Fashion 37,24,291 12 Brahmani Creation 12,61,495 13 Guru Krupa Fashion 9,03,560 14 Payal Fashion 7,58,290 15 Rasha Swami Creation 1,52,840 Total 1,76,73,760 4.The assessee also failed to furnish necessary documents in support of purchase and sales, therefore a final show cause notice dated 15.03.2014 was issued to the assessee to furnish the explanation alongwith complete documents in support of contention of assessee. The said show cause notice issued by Assessing Officer is reproduced as below:- “You are well aware that time barring scrutiny assessment proceedings under section 143(3) of the I.T. Act 1961 for the A.Y. 2010-11 are going on in your case. In response to this notice on various date your authorized representative filed submission. After perusal the submissions, notice have been issued to various persons for verification of genuineness of transaction and dispatched through speed post. The postal authority has returned noticed in the following cases. 4 X U Fashion Embroidery Job Exp. 4,98,905 UNSERVED Kudrat Creation Embroidery Job Exp. 6,26,310 UNSERVED Om Art Embroidery Job Exp. 17,01,850 UNSERVVED Vraj Fashion Embroidery Job Exp. 23,07,280 UNSERVED Deep Creation Embroidery Job Exp. 4, 49, 045 UNSERVED Angel Fabrics Embroidery Job Exp. 10, 12, 523 UNSERVED Darshan Fashion Embroidery Job Exp. 1,77,180 UNSERVED Shree Ganesh Embroidery Job Exp. 7,74,870 UNSERVED Fashion Maruti Nandan Embroidery Job Exp. 8,44,988 UNSERVED Textile Jahanvi Fashion Embroidery Job Exp. 37,24,291 UNSERVED Brahmani Creation Embroidery Job Exp. 12,61, 495 UNSERVED Guru Krupa Embroidery Job Exp. 9,03,560 UNSERVED Fashion Payal Fashion Embroidery Job Exp. 7,58,290 UNSERVED Rasha Swami Embroidery Job Exp. 1,52,840 UNSERVED Creation 2. Therefore, you are requested to produce above said persons on or before 20.03.2014, before the undersigned, for verification of genuineness of transaction carried out with them with, supporting documentary evidences. You are also requested to….. Produce all books of accounts, Bank book, Cash Book which is maintained by you for F.Y.2010-11 and all bank accounts details maintain during F.Y.2013-14. Please submit copy of resident evidences of all partners submit list of partners movable/immovable assets own by them as on 10.03.2014, with necessary evidences. Submit copy of firm's trial balance as on 10.03.2014, with necessary evidences. Submit copy of Firm's trial balance as on 20.03.2014, with copies of trading account, profit and loss account, and capital account.
3. Please note that if you will fail to comply this notice then you are hereby shown cause, please explain why the discussed amount should not be add to returned income of the firm for the year under consideration.”
5.In response to the show cause notice, the assessee has submitted its reply to the Assessing Officer dated 20.03.2014, which is reproduced below: "On behalf of our subject client, we acknowledge with thanks the receipt of your show cause notice dated 15.03.2014 bearing reference No.PAN: AAJFR4447/File No.51 requiring our subject client to produce the parties listed therein whose show cause notices u/s 133(6) have been returned unserved. In this connection, 1. We have furnished the addresses as they appeared in our records which were furnished to us;
On inquiry, we have learnt that some parties have closed their business and moved out the premises where they were carrying on the business;
3. Some parties have moved out of Surat; 4. Two parties have been reported dead; In view of the above, to prove the genuineness of our transactions with the said parties, we are enclosing herewith: Ledger a/c. copy of each party with whom we had the transactions; Form No.l6A of each party issued by us quarter-wise indicating the amount of transaction, TDS deducted, PAN/TAN no. of the Deductor, PAN No. and the address of the Deductee, assessment year for which the TDS pertained, sec. under which TDS was deducted, date of payment; BSR code of the bank branch and the date of deposit etc.
Sir you would kindly appreciate that we have discharged our onus to a large extent to prove the bona fides and the genuineness of transactions. Besides, as all the parties are the assessees of Surat, with the help of their PA no. you can test check their returns.
As to other requirements listed therein, the partner, Shri Girish Lakkad, is out of Surat and would return on 23.03.2014 and on his return the same would be complied with.
In view of the above, we request you to kindly accept the above referred papers enclosed herewith in testimony of our transaction with the said parties, out of which some of them have furnished their confirmations with reconciliation of difference, if any. Kindly therefore, do not make any addition to the returned income and oblige.”
6.The Assessing Officer, after going through the reply of the assessee, noted that letter issued u/s 133(6) were returned unserved and the assessee also did not produce those parties during the assessment stage. Therefore assessee could not discharge the onus by producing the said parties, hence Assessing Officer, held that assessee is not, in possessionof any creditable evidence to evenindicate that alleged job work from the above parties are genuine. More importantly, the assessee was also not able to substantiate any corresponding to the above job work expenses. It is, thus, clear that the assessee does not maintain job work register and only summary of job work are available with it. In the absence of any quantitative records maintained item wise, it is absolutely impossible to believe the claim of job work expenses from the above said parties. Therefore, AO treated alleged job work expense,as bogus.
In view of the above, sum of Rs.1,11,84,297/- out of Rs.1,76,73,760/- was found to be a bogus claim of expense and is accordingly rejected, disallowed and added back to the total income of the assessee. During the assessment proceedings, the assessee has filed three confirmations on 25.03.2014 of Kudrat Creation of Rs.6,26,310/-, Vraj Fashion of Rs.23,07,850/- and Om Art of Rs.24,80,333/-. Therefore, addition is made only for Rs.1,11,84,297/- out of Rs.1,76,73,760/-.
Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before Ld. CIT(A) who has granted part relief to the assessee by observing as under: “6.1.6. On the perusal of the details, it is found that the appellant was issued a show cause notice on 15.03.2014 and the date of compliance was 20.03.2014 and therefore the appellant was given insufficient time to produce the details. Keeping in view this fact of insufficient time given to produce the details before the AO and the principles of natural justice, the additional evidences under Rule 46A of the IT Rules is being admitted and the ground of appeal is adjudicated accordingly. 6.1.7. The details on the record show that the appellant had claimed job work expenses which was investigated by the AO and it was found that the 15 parties to whom the payment of Rs. 1,76,73,760/- has been made were found to be non- existent at the given address. The appellant inresponse to the show cause notice was able to furnish the confirmations, bank statement, return of income, etc. from 3 parties namely Kudrat Creation, Om Art and Vraj Fashion which was considered as explained and therefore the AO made the addition in respect of 12 parties amounting to Rs.1,11,84,297/-. The AO rejected the books of account u/s 145(2) of the Act as the appellant had failed to establish the genuineness of the job Work expenses. The appellant was given opportunity during the assessment proceedings to produce the parties for verification which the appellant failed. The issue of rejection of books of accounts on the basis of the appellants’ failure regarding the genuineness of the expenses has been examined and found to be correct. The appellant was able to furnish evidence regarding 3 parties, only out of 15 parties and therefore the rejection of the books of accounts by the AO is upheld. 6.1.8. The appellant was provided opportunity regarding the verification of the job work expenses pertaining to 15 parties. The appellant was able to produce evidence in form of confirmations, etc. from M/s Kudrat Creations of Rs.6,26,310/-, Vraj Fashion of Rs.23,07,850/- and Om Art of Rs.24,80,333/- during the assessment proceedings. The appellant during the appellate proceedings submitted that the 2 parties have closed the business and moved out the Surat and 2 parties have been reported dead. But the details and the names of these 4 parties were not specified during the assessment proceedings nor the appellate proceedings. On the perusal of the assessment order and on the basis of the additional evidences filed the following are the 4 parties regarding which no evidences has been furnished during the assessment as well as appellate proceedings. Name of the party Nature of Amount of Remarks payment payment Shree Ganesh Embroidery 7,74,870/- No details furnished Fashion Job Work expenses Maruti Embroidery 8,44,988/- No details furnished NandanTextile Job Work expenses Payal Fashion Embroidery Job 7,58,290/- No details furnished Work expenses Radha Swami Embroidery Job 1,52,840/- No details furnished Creation Work expenses Total 25,30,988/- The appellant failed to furnish any evidence pertaining to the above 4 parties of Rs.25,30,988/-regarding genuineness of the job work expenses inspite of opportunities given during theassessment proceedings as well as appellate proceedings. This amount of Rs.25,30,988/- is considered to be unverifiable expenses. 6.1.9. In regard to the other 8 parties to whom job work expenses have been paid it is beingdiscussed in the subsequent para. 1. 4XU Fashion: The AO in the remand report submitted that the appellant had filed the confirmation with the PAN regarding the job charges of Rs.4,98,905/- but no other evidence was given. The appellant submitted that the party has filed confirmation alongwith the complete address and the PAN. The contra account filed by the party matches with the amount debited by the appellant and the payments had been made to this party by account payee cheque on which TDS has been deducted. On the perusal of the details it is observed that the party has filed the confirmation alongwith the address and PAN. In the remand report the AO could not point out any discrepancy except that no other documents, such as bank statements, ITR, etc. had not been filed. The AO had the full opportunity to examine the party during the remand report proceedings, in case he had doubts regarding the confirmation. The confirmation filed by the party is considered to be satisfactory and the addition to the extent of Rs.4,98,905/- is deleted.
2. Satyam Creation: The AO reported that the party has filed the confirmation alongwith the PAN, ITR acknowledgment, copy of computation of income and balance sheet but the amount of job charges shown in the appellant's ledger is Rs.17,01,850/- but in the confirmation filed the amount shown is Rs. 9,03,639/- only, on the balance carry forward and on the credit side amount shown is Rs.8,89,663/-. The appellant submitted that the difference in the closing balance to the extent of Rs.13,976(9,03,639/- - 8,89,663/-) is due to fact that the appellant had passed the discount-entry amounting to Rs.13,976/- as on 31.03.2011 and this amount has already been offered as income by the appellant. On the perusal of the details, the contention of the appellant was found to be correct as the party had passed the discount entry of Rs.13,976/-. The observation of the AO that there is a huge disparity in the confirmations filed and the ledger account of the appellant is without any basis and therefore the addition of Rs.17,01,850/- is deleted.
3. Deep Creation: The AO reported that the party has filed the PAN, ITR acknowledgment, copy of computation of income, balance sheet and copy of bank statement but the amount of job charges shown in the appellant's ledger is Rs.4,49,045/- but in the confirmation filed the amount shown is Rs. 4,45,585/- only on the balance carry forward and the credit side shown Rs.1,92,8641-. The appellant submitted that the appellant has shown the closing balance of Rs.1,92,864/- as against the balance of Rs. 48,109/- appearing in the contra account of the Deep Creation. It was contended that the no addition can be made in respect of the difference as the record submitted by Deep Creation are no reliable and they are not audited and secondly even the cheque payment of Rs.17,820/- made through IDBI account on 20.10.2010 has not been accounted by the party in the contra account though the bank statement of Deep Creation shows that the cheque no. 254743 has been duly credited in the account on 21.10.2010. On the perusal of the details, it is observed that no confirmation has been filed by Deep Creation and the contra account figures do not tally with the ledger of the appellant. The contention of the appellant .that the accounts of the Deep Creation are not reliable is without any basis. In absence of any confirmation and the discrepancy in the contra account filed by the appellant, the contention of the appellant is rejected and the addition made by the AO in respect of Deep Creation job work expenses of Rs.4,49,045/- is upheld. 4.Angel Fabric: The AO reported that the party has filed the confirmation with PAN, but no other documents such as ITR acknowledgment, copy of computation of income and balance sheet, bank statement has been filed. The amount of job charges shown in the appellant's ledger is Rs.7,39,030/- and in the confirmation filed the amount shown is Rs.7,39,030/- only on the balance carry forward and the credit side shown Rs.4,32,963/-. The appellant submitted that there is no difference in the ledger account of the appellant and the contra confirmation filed by the Angel Fabrics. On the perusal of the details the contention of the appellant was found to be correct and the confirmation filed is matches with the ledger account of the appellant and therefore the addition of Rs.10,12,523/- is deleted.
5. Darshan Fashion: The AO reported that the party has filed the PAN details, ITR acknowledgment, copy of computation of income and balance sheet, has been filed. The amount of job charges shown in the appellant's ledger is Rs.1,77,180/- and the balance carry forward arid the credit side shown Rs.1,05,712/- but in the balance sheet of Darshan Fashion, the amount shown against the name of the appellant as sundry debtors is of Rs.1,06,323/- and there is a difference amount of Rs.611/-. The appellant submitted that there is small difference of Rs.611 only and Page | 7 adverse inference should be drawn in the ledger account of the appellant and the contra confirmation filed by the Darshan Fabrics. On the perusal of the details the contention of the appellant was found to be correct and on account of small difference of Rs.611/- no adverse inference is being drawn and it is held that confirmation filed is matches with the ledger account of the appellant and therefore the addition of Rs.1,77,180/-is deleted.
6. Jahanvi Fashion: The AO reported that the party has filed the confirmation with PAN, but no other documents such as ITR acknowledgment, copy of computation of income and balance sheet, bank statement has been filed. The amount of job charges shown in the appellant's ledger is Rs.37,24,291/- and in the confirmation filed the amount shown is Rs.37,73,581/- only on the balance carry forward and the credit side shown Rs.18,96,415/-. The appellant submitted that there is the difference of Rs.54,280/- as the party has wrongly debited appellant's account by amount of Rs.54,280/- on 17.05.2010 and the appellant had not given job work of such amount to this party and no adverse inference can be drawn due to the wrong posting by the Jahanvi Fashion in his books of accounts. The contention of the appellant that the accounts of the Jahanvi Fashion are not reliable is without any basis. In absence of any details such as bank statements, ITR details, balance sheet etc. and the discrepancy in the contra account filed by the appellant, the contention of the appellant is rejected and the addition made by the AO in respect of Jahanvi Fashion job work expenses of Rs.37,24,291/- is upheld.
7. Brahmani Creation: The AO reported that the party has filed the confirmation with PAN, along with ITR acknowledgment, copy of balance sheet, has been filed. The amount of job charges shown in the appellant's ledger is Rs.12,61,495/- and in the confirmation filedshows the balance brought down as per the appellant's books of Rs.3,70,384/- matches with the figure of the sundry debtors in the balance sheet of Brahmani Creation. The appellant submitted that there is no difference in the ledger account of the appellant and the contra confirmation filed by the Brahmani Creation. On the perusal of the details, the contention of the appellant was found to be correct and the confirmation filed is matches with the ledger account of the appellant and therefore the addition of Rs.12,61,495/- is deleted.
8. Guru Krupa Fashion: The AO reported that the party has filed the confirmation with PAN, without ITR acknowledgment, copy of balance sheet, etc. The amount of job charges shown in the appellant's ledger is Rs.9,03,560/- and in the confirmation filed shows the balance brought down as per the appellant's books of Rs.1,22,018/- matches with the figure of the sundry debtors in the balance sheet of Guru Krupa Fashion. The appellant submitted that there is no difference in the ledger account of the appellant and the contra confirmation filed by the GuruKrupa Fashion. On the perusal of the details the contention of the appellant was found to be correct and the confirmation filed is matches with the ledger account of the appellant and therefore the addition of Rs.9,03,560/- is deleted. 6.1.10. In view of the above facts, the addition made by the AO in- the case of the following parties is upheld/deleted as per the chart below:
Sr. Name of the party Amount Decision No. 1 M/s Shree Ganesh Fashion Rs.7,74,8701- Dismissed 2 M/s Maruti Nandan Textile Rs.8,44,988/- Dismissed 3 M/s Payal Fashion Rs.7,58,290/- Dismissed 4 M/s Radha Swami Creation Rs.1,52,840/- Dismissed 5 M/s 4XU Fashion Rs.4,98,905/- Allowed 6 M/s Satyam Creation Rs.17,01,850/- Allowed 7 M/s Deep Creation Rs.4,49,045/- Dismissed 8 M/s Angel Fabric Rs.10,12,523/- Allowed 9 M/s Darshan Fashion Rs. 1,77,180/- Allowed 10 M/s Jahanvi Fashion Rs.37,24,291/- Dismissed 11 M/s Brahmani Creation Rs.12,61,495/- Allowed 12 M/s GuruKrupa Fashion Rs.9,03,560/- Allowed 6.1.11. The addition to the extent of Rs.67,04,324/- is upheld and the addition of Rs.55,55,513/- is deleted. The AO in the assessment order has wrongly calculated the total amount of jobwork from the above 12 parties as Rs.1,18,58,607/- while the/correct total of the job work of the above 12 parties is Rs.1,22,59,837/- The totaling error of Rs.4,01,230/- is being corrected after bringing this error to the notice of the- appellant as per order sheet entry dated 22/02/2016 during the appellate proceedings. Hence, the grounds of appeal is partly allowed.”
9. Aggrieved by the order of Ld. CIT(A) the assessee is in appeal before us.
We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. Before us, Ld. Counsel for the assessee submits that in respect of M/s Shri Ganesh Fashion, (one of the parties), the payment was made through banking channel and respective bills of job charges are on the record and assessee also submitted contra accounts. Similar arguments were made by the Ld. Counselin respect of M/s Maruti Nandan Textile, M/s Payal Fashion, M/s Radha Swami Creation, and M/s Deep Creation.
For M/s Jahanvi Fashion, we note that assessee submitted additional evidences under Rule 29 of the Income Tax Appellate Tribunal Rules 1963. The assessee submitted copy of income-tax acknowledgement, Balance-Sheet, Profit and loss account and capital account for assessment year 2011-12, which are placed on paper book page 133-134. The assessee has requested to admit these additional evidences in respect of M/s Jahanvi Fashion. In this regard, assessee has also filed request letter dated 10.12.2021, before the Bench which is reproduced below: “May it please to your honur 1.The assessee has filed an appeal before Honourable ITAT for A.Y 2011-12 against the order of ld. CIT(A). The assessee hereby makes an application under Rule 29 of the ITAT Rules, 1963 & hereby prays for admission of documents enclosed herewith. 2. It is prayed that the documents enclosed with this application may kindly be admitted as the same is very much necessary to do substantial justice in the matter & are very much vital for proper adjudication of the issue involved in instant appeal. Assessee was unable to file these evidences before lower authorities due to reasons beyond his control. Assessee made his best possible efforts to obtain the I.T acknowledgement & other details of M/s Jahanvi Fashions (proprietory concern of Mahesh G Dakhara) but due to non-cooperative attitude of the party, assessee could not submit the same before lower authorities. Assessee managed to convince the party only recently for supplying the requisite details & hence, these evidences are filed for first time before Honourable ITAT. There is absolutely no intention on assessee’s part in not filing these evidence before assessing office or CIT(A). 3. In light of above facts, it is prayed that documents enclosed herewith may kindly be taken into consideration by Honourable tribunal in the interest of natural justice, equity & fair play.”
In rejoinder, Ld. Sr. DR for the Revenue opposed the plea taken by assessee and submits that these additional evidences should not be admitted at this belated stage because assessee was given sufficient opportunities by the Assessing Officer, during assessment stage, to produce documentary evidence before him.
13.We note that assessee was prevented by sufficient cause not to file these additional evidences before the lower authorities, due to circumstances beyond his control, as narrated by the assessee, in the above letter.We note that the Hon’ble Supreme Court in M.S.Gill vs The Chief Election Commission 1978 AIR SC 851 held “The dichotomy between administrative and quasi-judicial function vis-à-vis the doctrine of natural justice is presumably obsolescent after Kraipak (A.K. Kraipak vs UOI AIR 1970 SC 150) which makes the water-shed in the application of natural justice to administrative proceedings. The rules of natural justice are Page | 10 rooted in all legal systems and are not any new theology. They are manifested in the twin principles of nemo judex in partesua (no person shall be a judge in his own case) and audialterem partem (the right to be heard). It has been pointed out that the aim of natural justice is to secure justice. The ld Counsel submitted before us that in respect of the following parties Viz: M/s Shri Ganesh Fashion, M/s Maruti Nandan Textile, M/s Payal Fashion, M/s Radha Swami Creation, and M/s Deep Creation, the payments were made through banking channel and respective bills of job charges are on the record and assessee also submitted contra accounts, which were not properly considered by ld CIT(A). In respect of M/s Jahanvi Fashion, we note that assessee submitted additional evidences. Therefore, we are of the view that the matter should be remitted back to the file of the ld CIT(A) in respect of above noted six parties only, to examine the evidences and adjudicate the issue in accordance with law. Thus, we are of the view that one more opportunity should be given to the assessee to plead his case before the ld CIT(A) in respect of above noted six parties. The assessee should submit these additional evidences, including bank statements and job charges bills before ld CIT(A).We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits,in respect of above noted six parties. For statistical purposes, the appeal of the assessee is treated as allowed.
In the result, appeal of the assessee is allowed for statistical purposes in above terms.