M/S M/S AJAY CONSTRUCTION,,KORBA(CG) vs. THE DY. COMMISSIONER OF INCOME TAX,, KORBA(CG)

This appeal is filed by the assessee aggrieved from the order of the Commissioner of Income Tax (Appeal), Bilaspur (CG) [ Here in after referred as Ld. CIT(A) ] for the assessment year 2012-13 dated 28.03.2016 which in turn arises from the order passed by the assessing officer under Sec.143(3) of the Income tax Act, 1961 (in short 'the Act') dated 03.02.2015.

Before us the assessee has assailed the impugned order on the following grounds of appeal:

The fact as culled out from the records that the original return of income for the assessment year 2012-13 was filed by the assessee on 17.01.2013 declaring total income of Rs. 13,53,090/-, which was duly processed under section 143(1). The assessee is a contractor and maintain regular books of accounts which was duly audited by the Chartered Accountant. Subsequently, the case was selected for scrutiny through CASS and notices u/s 143(2)/142(1) were issued from time to time.

The only grievance raised by the assessee in this appeal is on account of an addition of Rs. 21,69,382/- made by the Assessing Officer made under section 40(a)(ia). Aggrieved from the said addition assessee preferred an appeal before the ld. CIT(A). Ld. CIT(A) sustained the addition and thus, the assessee is in appeal before us.

In connection with this appeal an application under rule 29B of the ITAT Rules, 1963 made by the assessee praying to permit additional evidence as the assessee which the assessee has to acquire from the payee on which the tax has not been deducted by the assessee. The assessee has to acquire the required certificate from the Chartered Accountant in the prescribed form. The assessee further submitted that as they were defaulted in making payment of EMI, due to financial crunch, they were unable to obtain required certificate from the payee’s chartered accountant which is to be certified from the books of the payee NBFC in the prescribed form. This being the reason, they were prevented with sufficient cause in not submitting the certificate earlier and the Tribunal being final fact-finding authority requested to allow the additional evidence in the interest of justice which were not presented before the lower authorities.

Based on these set of facts and plausible cause adduced by the assessee prayed in the petition to allow these additional evidence to be placed on record.

Per contra, the ld. DR has not objected to the fact but objected to the petition admitting the additional evidence on the reason that this is the responsibility of the assessee to obtain the evidence in the time provided by the lower authority. He also stated that these being the issue of verification of the exact disallowance made of Rs. 21,69,382/- and the certificate produced by the assessee by way of additional evidence is for an amount of Rs. 20,56,357/-. Therefore, these facts are required to be verified by the Assessing Officer.

We have heard both the parties, perused materials available on record. We aptly agree with the contentions raised by the assessee in petition filed under rule 29 of ITAT Rules, 1963 and the additional evidence is admitted for adjudication on merits. But at the same time swayed from the argument of the ld. DR that the matter is required to be restored back to the file of the Assessing Officer to decide about the admissibility of the amount of interest. As the amount disallowed in the assessment order and amount reflected in the certificate of accountant under first provision to sub-section (1)of Section 201 of the Income Tax Act, 1961 for certifying the furnishing of return of income, payment of taxes by the payee SREI Equipment Pvt. Ltd., which has been disallowed by the assessing officer based on account of non- deduction of tax by the assessee. Based on these difference of the amount disallowed and the amount for which the assessee submitted in support for allowability of the interest based on these certificate produced by the assessee needs verification at the end of the assessing officer. Thus, ld. Assessing Officer is directed to pass a speaking order in accordance with law after giving proper opportunity to the assessee as per the evidence placed on record with a reasonable time and allow the interest to that extent.

In the result, the appeal of the assessee is allowed for statistical purpose.