9911796707
TMI Blog2016 (12) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 32 of the Income Tax Act. 3. That the appellant craves leave to add, alter, amend or abandon any of the grounds of appeal either before or at the time of hearing. 2.1 None attended the proceedings on behalf of the assessee on the date of hearing the appeal. However, the written submission was filed by the ld. AR of the assessee with the prayer to decide the appeal on merit accordingly. 3.1 Apropos Ground No. 1 of the assessee, the facts as emerges from the order of the ld. CIT(A) is as under:- 3.1.2 (i) I have duly considered the submissions of the appellant, assessment order and the material placed on record. The appellant is engaged in the business of transportation of goods using own truck as well as hired trucks and other heavy goods vehicles owned by others. The original assessment was completed u/s 143(3) on 25-10- 2010 determining total income of Rs. 5,07,380/ against returned income of Rs. 4,07,380/-. Subsequently, the case of the appellant was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 29-08-2012 i.e. within a period of 4 years from the end of the relevant assessment year and the total income of the appellant was determined at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law is now being considered by a larger Bench of this court. There can be no dispute that the audit party is entitled to point out a factual error or omission in the assessment. Reopening of the case on the basis of a factual error pointed out by the audit party is permissible under law. In view of that we hold that reopening of the case under section 147(b) in the facts of this case was on the basis of factual information given by the internal audit party and was valid in law. The judgment under appeal is set aside to this extent.'' (v) Thus it is clear from the above referred decision of Hon'ble Apex Court that it upheld the reopening uu147 of the Act on the basis of factual matters brought to the notice of AO through audit para. It is a mater of fact that the appellant has not deducted tax at source while making payment to sub-contractor (Shri Arihant Jain) and in view of the provision of Section 40(a)(ia) of the Act, the said amount is to be added to be added to the income of the appellant. Further, in the case of Raymond's Woolen Ltd. 236 ITR 34 (SC), it has been held in the Hon'ble Apex Court that the sufficiency of the reasons for re-opening of the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings u/s 147 as null and void. Thus this ground of appeal is decided in favor of the assessee assessee and direct the AO to restore the total income as determined u/s 143(3) vide order dated 25.10.2010 as the assessed income for the AY 2008-09. 4.1 Apropos Ground No. 2 (a) and 2(b) of the assessee, the facts as emerges from the order of the ld. CIT(A) is as under:- 3.2.2 Determination 2(A) (i) I have duly considered the submissions of the appellant, material placed on record and the assessment order. The appellant made payment of Rs. 3,60,000/- to Shri Arihant Jain without TDs in violation of provisions of Section 40(a)(ia) of the Act and the appellant failed to file Form No. 15-I within the stipulated time with the prescribed authority. It would be appropriate to reproduce the provisions of Section 194(c(3) of the Act and the Rule 29D of the IT Rules as under:- 194C (3) No deduction shall be made under sub-section (1) or sub-section 2(2) from - (i) The amount of any sum credited or paid or likely to be credited or paid to the account of, or to, the contractor or sub-contractor, if such sum does not exceed twenty thousands rupees. Provided that where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor for non-deduction of tax at source, then the said 15-I shall be furnished to the designated Commissioner within the stipulated time. (iii) It was the contention of the appellant that at the original assessment stage, the original form 15-I were produced before the AO and being fully satisfied, the AO did not draw any adverse inference, however, the appellant failed to substantiate its contention with any evidence. During appellate proceedings, the A.R. was required to file the evidence when the Form No.15-I was issued by Shri Arihant Jain were filed with the prescribed authority, however, the same was not furnished and it was submitted that the same is not traceable. Thus the appellant did not comply with the requirements of Rule 29D and it has not deducted tax at source and thus violated the provisions of Section 40(a)(ia) of the Act. (iv) During the appellate proceedings, the A.R. relied upon the case of Shyam Sunder Kailash Chand vs. ITO (ITAT-Jaipur), ITO vs. Rajesh Kr Garg (ITAT- Kolkata) and Karwat Steel Traders vs. ITO (ITAT - Mumbai). I have gone through the said decisions and found them to be distinguishable on facts as in all of them, the relevant forms were f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
