Income Tax Appellate Tribunal - Jodhpur
Mata Deen Ram Chandra Agarwal, Mount Abu vs Acit, Circle-2, Jodhpur on 31 January, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
JODHPUR BENCH, JODHPUR.
BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER &
SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER
I.T.A. No. 133/Jodh/2023
Assessment Year: 2017-18
Mata Deen Ram Chandra Agarwal Vs. ACIT,
Sadar Bazar, Mount Abu. Circle-2,
[PAN:AADFM 5362J] Jodhpur.
(Appellant) (Respondent)
Appellant by Sh. Rajendra Jain-Adv.
Respondent by Ms. Nidhi Nair, Sr. DR
Date of Hearing 29.01.2024
Date of Pronouncement 31.01.2024
ORDER
Per:DR. S. Seethalakshmi, JM:
This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 28.02.2023 [here in after "ld.CIT(A)(NFAC)"] for assessment year 2017-18 which in turn arise from the order dated 21.12.2019 passed under section 143(3) of the Income Tax Act, by the AO, Jodhpur.
2. In this appeal, the assessee has raised following grounds: -
I.T.A. No.133/Jodh/2023 Mata Deen Ram Chandra Agarwal 2 " 1. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in violating the principal of natural justice by rejecting the addition evidences furnished by the assessee.
2. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in upholding the additions made by the ld. AO without taken to consider the legal and valid additional evidences furnished by the assessee.
3. That on the facts and in the circumstances of the case, the CIT(A)/NFAC out to have accepted the additional evidences and deleted the addition made by the ld. AO.
4. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in sustaining addition of Rs. 25,26,389/- u/s 40A(ia) of the Act.
5. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in upholding the assessee is a defaulter without considering the provisions of the law and submission of the assessee in right perspective and judicious manner.
6. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in sustain addition of Rs. 13,00,000/- in respect of unexplained cash credit u/s 68 of the Act.
7. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in not considering the explanations and evidences furnished by the assessee in judicious manner.
8. That on the facts and in the circumstances of the case, the CIT(A)/NFAC has grossly erred in confirming the additions made by the ld. AO without analyzing the facts and legal position in right perspective and judicious manner.
9. That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing.
10. The petitioner prays for justice & relief."
3. Brief facts of the case are that the assessee has filed his return of income for the assessment year 2017-18 on 29.10.2017 at Rs. 73,24,250/-. The case was selected for scrutiny through CASS. During the year under consideration, the assessee firm derives income from business profession as assessment firm as a civil contractor and is engaged in business relating to construction. Accordingly, I.T.A. No.133/Jodh/2023 Mata Deen Ram Chandra Agarwal 3 notice u/s 143(2) of the Act was issued on 11.08.2018 through income Tax Business Application platform and duly served on the assessee's registered e- mail. Accordingly, notices u/s 142(1) were issued to the assessee on 16.04.2019, 18.07.2019, 12.09.2019, 16.11.2019 & 25.11.2019 for getting information along with necessary documents required for the assessment proceedings, Accordingly, the assessee complied on 25.07.2019, 02.09.2019, 11.09.2019, 21.11.2019, 29.11.2019 and 12.12.2019 through e-proceedings module. That the ld. AO has made addition of 30% for transportation expenses in total income on ground of non deduction of TDS, whereas our plea that TDS is not deductable for due to amendment in finance bill 2015 which required no TDS is required to be deducted whereas transported held 10 or less than 10 goods carriages. An unsecured loan of Rs. 13,00,000/- was received by Mr. Sanjay Agarwal, a confirmation of the same was also submitted to the ld. AO but he has not considered the confirmation and addition of Rs. 13,00,000/- was made.
4. Aggrieved from the order of the assessing officer, assessee preferred an appeal before the ld. CIT(A). A propos to the grounds of the appeal so raised by the assessee, the relevant finding of the ld. CIT(A) is reiterated here in below:-
"6. Decision I have considered the facts mentioned in the assessment order, grounds of appeal, statement of facts and written submission filed by the appellant. As per provisions of section 194C(6), TDS is not required to be deducted on payments made to a I.T.A. No.133/Jodh/2023 Mata Deen Ram Chandra Agarwal 4 contractor during the course of business of plying, hiring and leasing goods carriage where such contractor owns 10 or less goods carriages and furnishes a declaration to that effect along with his PAN to the person paying or crediting such sum. In the present case, the appellant has claimed transport expenses of Rs. 84,21,297/- which is covered by 194C. Therefore, it was mandatory requirement for the assessee to furnish declaration from the transporters that they own 10 or less goods carriages since no TDS was deducted by the assessee. The appellant failed to submit the said declaration in the assessment proceedings. The appellant has filed declarations from 11 parties during the appellate proceedings. These are additional evidences. The assessee has not filed any application or justification under Rule 46A requesting admission of these additional evidences. Moreover, facts of the case reveal that these declarations were not available with the assessee even till the time of passing the assessment order because the assessee failed to produce even a single declaration before the AO even when the AO asked the assessee to file the declarations. Further, as per section 194C(7), the person responsible for paying or crediting any sum to the person referred to in sub-section (6) shall furnish, to the prescribed income-tax authority or the person authorised by it, such particulars, in such form and within such time as may be prescribed. The appellant has failed to show as to how provisions of section 1940(7) was fulfilled in this case. Therefore, the additional evidences in the form of declarations filed now are not admitted and it is held that the appellant has failed to deduct TDS u/s 194C without any justification. In view of above, the disallowance of Rs. 25,26,389/- made by the AO u/s 40a(ia) is hereby confirmed. The relevant grounds of appeal are dismissed.
6.2 The second issue is regarding addition of Rs. 13,00,000/- claimed to have been taken as unsecured loan from Sh. Sanjay Agarwal. The AO had asked the assessee to file ITR, PAN, confirmation of account, Balance Sheet and bank statement of Sh. Sanjay Agarwal. All the three ingredients of section 68 will be satisfied only in a case where all the aforesaid required documents are furnished by the assessee. During the assessment proceedings, the assessee has not furnished the aforesaid documents proving identity, creditworthiness and genuineness of the loan. During the appellate proceedings, the assessee has filed Copy of PAN and account confirmation and bank details of Sh. Sanjay Agarwal. These are additional evidences. The assessee has not filed any application or justification under Rule 46A requesting admission of these additional evidences. Therefore, these additional evidences are not admitted. Even otherwise, copy of ITR of Shri Sanjay Agarwal has not been filed by the assessee. Therefore, the bank statement or the account confirmation does not prove the creditworthiness of the lender for the reason that perusal of the bank statement reveals a fund transfer of Rs. 30 Lakhs in the said account before the loan of Rs. 13 Lakhs was given to the assessee. In view of above, the addition of Rs. 13,00,000/- made by the AO u/s 68 r.w.s. 115BBE is hereby upheld. The relevant grounds of appeal are dismissed.
I.T.A. No.133/Jodh/2023
Mata Deen Ram Chandra Agarwal 5
7. Accordingly, the appeal of the assessee treated as dismissed."
5. During the course of hearing, the ld. AR for the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO in the interest of equity and justice.
6. Per contra, the ld. DR supported the order of the lower authorities.
7. We have heard both the parties and perused the materials available on record. The Bench noted that the additional evidences has not been accepted by the ld. CIT(A) during the appellate proceedings before us, the ld. AR of the assessee submits that the additional evidences may be admitted and remand back to the AO. We noted that the ld. CIT(A) has passed the order as rejected the appeal on technical reasons. On contra the ld. DR submitted that the ld. CIT(A) passed the order on merits in spite of not accepting the additional evidences which has been reproduce in para 6.2 herein above. However, the Bench feels that the assessee because of any reasons could not advance his arguments/submissions to contest the case before the lower authorities and the ld. AR for the assessee also prayed to give one more opportunity to submit the evidences concerning the issue in question, with grounds so raised by the assessee, to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld. AO.
I.T.A. No.133/Jodh/2023 Mata Deen Ram Chandra Agarwal 6
8. 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 appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on. 31/01/2024 Sd/- Sd/-
(Rathod Kamlesh Jayantbhai) (DR. S. Seethalakshmi)
Accountant Member Judicial Member
Santosh
(On Tour)
Copy of the order forwarded to:
(1)The Appellant
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.
True Copy
By order
I.T.A. No.133/Jodh/2023
Mata Deen Ram Chandra Agarwal 7
Date Initia
l
1. Draft dictated on 29.01.24 Sr.PS/
PS
2. Draft placed before author 30.01.24 Sr.PS/
PS
3. Draft proposed & placed JM/A
before the Second Member M
4. Draft discussed/approved by JM/A
Second Member M
5. Approved Draft comes to Sr.PS/
the Sr. P.S./P.S. PS
6. Kept for pronouncement on Sr.PS/
PS
7. File sent to the Bench Clerk Sr.PS/
PS
8. Date on which file goes to
the Head Clerk
9. Date on which file goes to
the AR
10. Date of dispatch of Order
B