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Income Tax Appellate Tribunal - Rajkot

Vijay Protins Ltd,, Junagadh vs The Acit,Circle-1,, Junagadh on 27 November, 2018

             आयकर अपील य अ धकरण: राजकोट यायपीठ: राजकोट
     IN THE INCOME TAX APPELLATE TRIBULAL: RAJKOT BENCH:
                             RAJKOT

        ी सी एमगग, या यक सद य एवं ी ओपीमीना, लेखा सद य के सम
          BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND
              SHRI O.P.MEENA, ACCOUNTANT MEMBER

                   आयकरअपीलसं. / ITA No.471/RJT/2005
                    नधारणवष/ Assessment Year: 1993-94

M/s. Vijay Proteins Ltd.,                   Vs. Asst. Commissioner of Income
Outside Majevadi Gate,                          Tax,
Junagadh.                                       Circle - 1,
[PAN: AABCV 1648P]                              Junagadh.
(अपीलाथ /Appellant)                               (   यथ /Respondent)


नधा रती क ओरसे/Assessee by                    :   Shri Vimal Desai, A.R
राज वक ओरसे/Revenue by                        :   Shri Praveen Verma, Sr. DR
सन
 ु वाईक तार ख/Date of Hearing                 :   26-11-2018
घोषणाक तार ख /Date of Pronouncement           :   27-11-2018

                                 आदे श /ORDER

PER C.M. GARG, JUDICIAL MEMBER:

This appeal has been filed by the Assessee against the order of Commissioner of Income Tax (Appeals)-IV, Rajkot ('CIT(A)' for short) dated 20.01.2005 for the Assessment Year (A.Y) 1993-94.

2. The grounds raised by the Assessee read as follows:

"1. The learned Assessing Officer has erred on facts and in law in disallowing Rs. 8,62,021/- on account of freight paid and Rs. 50,000/-

M/s. Vijay Proteins Ltd.

on account of brokerage paid and the honourable CIT(A) has erred on facts and in law in confirming the same.

2. The learned Assessing Officer has erred on facts and in law in charging interest u/s. 234A and 234B of the Income Tax Act and the CIT(A) has erred on facts and in law in confirming the same."

3. We have heard the arguments of both sides and carefully perused the relevant material placed on the record of the Tribunal. The ld. Assessee's Representative (AR) submitted that the learned Assessing Officer has erred on facts and in law in disallowing Rs. 8,62,021/- on account of freight paid and Rs. 50,000/- on account of brokerage paid and the ld. CIT(A) has erred on facts and in law in confirming the same. Placing copy of the order of ITAT 'A' Bench, Ahmedabad dated 06.10.1997 for AY 1992-93, the ld. AR, in all fairness pointed out that the issue is covered against the assessee by the order of the Tribunal and the appropriate order may kindly be passed in this regard.

4. Replying to the above, the ld. Departmental Representative (DR) submitted that from para 12 of this order of the Tribunal for AY 1992-93 (supra), it is clearly discernable that the ground of Revenue pertaining to the disallowances on account of freight paid and brokerage paid is squarely covered against the assessee and in favour of the Department and therefore, the same may kindly be followed by restoring the order of the AO.

ITA No.471/RJT/2005 (A.Y: 1993-94)

M/s. Vijay Proteins Ltd.

5. On careful consideration of above rival submissions, from para 12 of the Tribunal order dated 06.07.1997 (supra), we observe that on both the issues, the Tribunal dismissing the ground of the assessee and upholding the order of the AO observed as follows:

"12. We find that in the A.Y 1991-92, the assessee made similar purchase of oil cakes for Solvent Oil Extraction from 33 suppliers from outside State of Gujarat for a consideration of Rs. 70,03,826/- and on detailed enquiries made such purchases were found to be bogus. The freight claim of Rs.5,02,752/- was also not found genuine and accordingly the Revenue disallowed such expenses claimed on purchase of oil cake and transportation charges. The matter came up for consideration before the Tribunal and the same was decided by the Tribunal in its order dated 18th January, 1996 in ITA No. 5898/Ahd/94. The Tribunal in the detailed and elaborate order passed for AY 1991-92 considered all relevant facts and material evidence brought on record and came to the consulsion that the purchases shown in the names of outside parties were not genuine, and the amount of payments made came back to the assessee through Pooja Traders, who got the cheques issued encashed from its bank account maintained for the purpose. The Id. counsel for the assessee during the course of hearing for the current AY 1992-93 did not prefer any weighty arguments and he rather conceded to the Revenue having treated the said purchases of oil cake from 47 outside suppliers. as not genuine. Purchases being not genuine the expenses claimed on transportation and brokerage also could not be justified, We need not go into the detailed facts and material evidence brought on record for the current A.Y. and respectfully following the findings given by the Tribunal for A.Y 1991-92, we hold that the purchase of oil cake shown to have been made from 47 outside suppliers on a consideration of Rs. 1,90,01,729/- is not genuine and the expenses claimed on account of their freight charges and brokerage are also fake without there being any supporting evidence. We, therefore, confirm the disallowance made of the claim for transportation charges, at Rs. 8,67,012/- and brokerage charges at Rs. 58,430/- and as a result the findings given by the first appellate authority in this respect are uphold."

6. In view of above, we have no hesitation to hold that on the similar set of facts and circumstances, the Tribunal for AY 1992-93 has confirmed the disallowance made by the AO on account of claim for 4 ITA No.471/RJT/2005 (A.Y: 1993-94) M/s. Vijay Proteins Ltd.

transportation charges and brokerage charges pertaining to the purchase of oil cake shown to have been made by the assessee from outside suppliers. Therefore, respectfully following the order of the co-ordinate of the Tribunal in assessee's own case for AY 1992-93 (supra), we allow the ground No.1 of the Revenue. Consequently, findings of ld. CIT(A) are uphold confirming both the disallowances. Accordingly, ground No.1 of assessee is dismissed.

Ground No.2:

7. On ground No.2, the ld. DR, in all fairness, agreed to the submission of the ld. AR that the provision of s. 234A of the Act are applicable in the cases where return has not been filed within due date and the same has been filed beyond the prescribed date of filing return and the in the present case the claim of the assessee that return has been filed within prescribed date requires examination and verification at the end of the AO. In view of above submission of both the sides the issue involved in ground No.2, being consequential, is restored to the file of AO for necessary examination and verification especially on applicability of provisions of s. 234A of the Act as to whether the return was filed by the assessee within prescribed time limit for filing the return for AY 1993-94. Accordingly, ground No.2 of assessee is disposed off with the above directions to the AO.

ITA No.471/RJT/2005 (A.Y: 1993-94)

M/s. Vijay Proteins Ltd.

8. In the result, appeal of the assessee is dismissed. Order pronounced in the open court on this day of 27th November, 2018 Sd/- Sd/-

(ओ.पी.मीना/O.P.MEENA) (सी.एम.गग /C.M.GARG) लेखासद य के सम / Accountant Member लेखासद य के सम /Judicial Member Rajkot/राजकोट; &दनांक/Dated : 27th November, 2018/ EDN, Sr. P.S आदे श क! त#ल$प अ%े$षत/Copy of the Order is forwarded to :

1.अपीलाथ*/The Appellant;

2.+,यथ*/The Respondent;

3.आयकर आय. ु त(अपील)/The concerned CIT(A);

4.The concerned Prl. CIT;

5./वभागीय + त न ध, आयकर अपील य अ धकरण, / DR, ITAT, राजकोट/Rajkot;

6. गाडफाईल / Guard file.

// By order // Assistant Registrar, ITAT, Rajkot Bench, Rajkot