Shri Shirish S.Pandya, Ahmedabad v. The Income tax Officer,Ward-3(4),, Ahmedabad

MA 189/AHD/2009 | misc
Pronouncement Date: 18-02-2010 | Result: Dismissed

Appeal Details

RSA Number 18920524 RSA 2009
Bench Ahmedabad
Appeal Number MA 189/AHD/2009
Duration Of Justice 8 month(s) 13 day(s)
Appellant Shri Shirish S.Pandya, Ahmedabad
Respondent The Income tax Officer,Ward-3(4),, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 18-02-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 18-02-2010
Assessment Year misc
Appeal Filed On 04-06-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI T.K.SHARMA JM AND D.C.AGRAWAL AM INCOME-TAX OFFICER WARD-3(4) AHMEDABAD. V/S . SHRI SHIRISH S. PANDYA SHED NO.83/1 GIDC NARODA AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI J. M. TRIVEDI AR RESPONDENT BY:- SMT. NEETA SHAH SR.DR O R D E R PER D.C.AGRAWAL ACCOUNTANT MEMBER. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.1722/AH D/2003 FOR ASST. YEAR 1986-87 DATED 14.12.2007. 2. AS PER THE MISCELLANEOUS APPLICATION AND ARGUMEN TS OF LD. AR ONE OF THE GROUNDS IN RESPECT OF ADDITION OF RS.1 31 50 0/- BEING ADDITION UNDER SECTION 40A(3) REMAINED UNDISPOSED. THE CONT ENTION OF THE LD. AR IS THAT EACH PAYMENT MADE AT A TIME WAS LESS THAN R S.2 500/- WHICH IS SUPPORTED BY PRIMARY EVIDENCE SUCH AS STAMPED RECEI PTS STILL IT WAS HELD THAT IT CONTRAVENED PROVISIONS OF SECTION 40A(3). A CCORDING TO LD. AR CASE OF THE ASSESSEE IS COVERED BY THE DECISION OF HON. ORISSA HIGH COURT M.A. NO.189/AHD/2009 ARISING OUT OF ITA NO.1722/AHD/2003 ASST. YEAR : 1986-87 2 IN THE CASE OF CIT VS. ALOO SUPPLY CO. 121 ITR 680 (ORISSA) AGAINST WHICH SLP FILED BY THE DEPARTMENT HAS BEEN DISMISSE D. ACCORDING TO THE LD. AR THE TRIBUNAL MISSED TO CONSIDER THE ABOVE IM PORTANT JUDGMENT. FURTHER THE LD. AR SUBMITTED THAT ASSESSEE IS PROPR IETOR HIMSELF AND WAS WRITING ACCOUNT BOOKS AS AND WHEN HE FOUND TIME FRO M ONE-MAN-SHOW BUSINESS SCENARIO AND ACCORDINGLY HE ADOPTED THE ME THOD OF WRITING ACCOUNT BOOKS NOT ON DAILY BASIS BUT WROTE THEM ON MONTHLY BASIS. THE TRIBUNAL HAD MERELY RELIED ON ASSUMPTION. 3. ON THE OTHER HAND LD. DR SUBMITTED THAT THE TRI BUNAL HAS FOUND THAT RECEIPTS ISSUED BY THE PAYEES IN FAVOUR OF THE ASSESSEE SHOWING BROKEN PAYMENTS EACH PAYMENT BELOW RS.2 500/- WER E AN AFTER THOUGHT AND MIS-STATEMENT OF ACTUAL STATE OF AFFAIRS IN THE BOOKS. THE TRIBUNAL AFTER APPRISING THE FACTS CAME TO THE CONCLUSION TH AT RECEIPTS ETC. ISSUED BY THE SO-CALLED PAYEES WERE AFTER THOUGHT AND ACCORDI NGLY PAYMENT SO RECORDED IN THE BOOKS ABOVE RS.2 500/- COULD NOT BE ALLOWED UNDER SECTION 40A(3). IN ANY CASE THE TRIBUNAL CANNOT REV IEW THE JUDGMENT AS THERE IS NO MISTAKE OF FACT POINTED OUT BY THE LD. AR. 4. LD. DR ALSO POINTED OUT THAT ASSESSEES APPEAL U NDER SECTION 260A HAS NOT BEEN ADMITTED BY HON. GUJARAT HIGH COURT HO LDING THAT NO SUBSTANTIAL QUESTION AROSE AND ACCORDINGLY THE TRIB UNALS ORDER ON FACTS HAS ATTAINED THE FINALITY. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE DECL INE TO INTERFERE. THE TRIBUNAL IN PARA 12.2 OBSERVED AS UNDER :- 12.2 AS REGARDS THE BALANCE PAYMENTS AGGREGATING LO RS.1 31 500/- WE ARE UNABLE TO AGREE WITH THE ASSESSEES CONTENTIONS EVEN IN THE FACE OF 3 THE 'EVIDENCE FURNISHED BY IT. THE ASSESSEE MAINTA INS ITS CASH-BOOK ON A DAILY BASIS SO THAT THERE IS NO SCOPE FOR THE ARGU MENT THAT THE ACCOUNTANT HAD CLUBBED THE PAYMENTS OVER THE PRECEDING FEW DAY S AND RECORDED THE PAYMENT AT THE SAID CLUBBED (HIGHER) SUM ON A DATE WHICH IS EITHER THE LAST OF SAID DATES OR (EVEN) A DATE SUBSEQUENT THER ETO (PB PG.35 191- 195); A PRACTICE WHICH HAS NO BASIS IN EITHER THE T HEORY OR THE PRACTICE OF BOOK-KEEPING BESIDES BEING A MISREPRESENTATION OF FACTS. SECONDLY AND EQUALLY IMPORTANTLY THE ASSESSEE'S ACCOUNTANT CANN OT BE CONSIDERED AS BESTOWED WITH PRESCIENCE SO AS TO KNOW BEFOREHAND THAT A PAYMENT(S) TO A PARTICULAR PAYEE-CREDITOR WOULD FOLLOW I.E. WIT HIN FEW DAYS OF THE FIRST PAYMENT (WHICH IS BELOW RS.2 500/-) SO AS TO DEFER ITS RECORDING IN THE REGULAR BOOKS OF ACCOUNT AND FOR WHICH NO COGENT REASON STANDS EVEN OTHERWISE ADVANCED. FURTHER EVEN SO THE ASSESSEE HAVING BEEN ISSUED SEPARATE RECEIPTS (FOR EACH PAYMENT) BY EACH PAYEES AND ONLY ON THE BASIS OF WHICH COULD ACCOUNTANT POSSIBLY WRITE THE CASH-BOOK HE WOULD ONLY PROVIDE THE RELEVANT DETAILS BY WAY OF NARRATI ON TO THE RESPECTIVE ENTRIES IN THE CASH-BOOK AND WHICH WE FIND TO BE N OT THE CASE. FURTHER STILL THE ASSESSES MAY HE HAVING A PART-TIME ACCOU NTANT (THOUGH NOT CONTENDED SO BY IT) VISITING THE ASSESSEE WITH LES S THAN A DAILY FREQUENCY BUT THAT AGAIN WOULD NOT WARRANT; IT HAVING BEEN IS SUED SEPARATE RECEIPTS FOR EACH PAYMENT RECORDING THE SAID PAYMENTS BY DE FERRING THEM TO A LATER DATE AT A CLUBBED AMOUNT AND HE MAY AS WELL EVEN IF WORKING ON A PART-TIME BASIS RECORD THE SAID PAYMENTS ON A DATE -WISE BASIS; THE ONLY CONSEQUENCE BEING THAT THE BALANCE IN ITS CASH-BOOK WOULD NOT BE CURRENT AND WHICH IN ANY CASE IT WOULD NOT BE; THE BALANCE BEING STRUCK ONLY AFTER A TIME INTERVAL AS THE BOOKS ARE IN THA T CASE BEING KEPT THROUGH A PART-TIME ACCOUNTANT. AS SUCH THE EVIDEN CE ADDUCED BY THE ASSESSEE IN SUPPORT NOTWITHSTANDING I E. THE RECE IPTS ISSUED BY THE PAYEES IN ITS FAVOUR WE WOULD CONSIDER THE SAME TO BE ONL Y AN AFTER-THOUGHT IN THE ABSENCE OF ANY CONTEMPORANEOUS AND COGENT EVIDE NCE AND RATHER LEADING TO A MISSTATEMENT OF THE ACTUAL STALE OF AF FAIRS IN ITS BOOKS. WE THEREFORE ARE NOT IN AGREEMENT WITH THE DELETION O F THE DISALLOWANCE BY THE CIT(A) TO THE SAID EXTENT I.E. RS.1 31 500/- AND ACCORDINGLY REVERSE HIS ORDER TO THE SAID EXTENT. WE DECIDE ACCORDINGLY . THIS TRIBUNAL HAS APPRISED ALL THE EVIDENCES PRODUC ED BY THE ASSESSEE INCLUDING STAMPED RECEIPTS AND CASH BOOKS AND FINAL LY FOUND THAT STAMPED RECEIPTS ARE AFTER-THOUGHT AND THEREFORE THERE IS A MIS-STATEMENT OF ACTUAL STATE OF AFFAIRS. SINCE RECALLING THE ORDER OF THE TRIBUNAL WILL TENTAMOUNT TO REVIEW THE SAME WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE 4 ACT. SINCE THE FACTS MENTIONED IN THE ORDER HAVE AT TAINED FINALITY AND WHAT HAS BEEN OBSERVED BY THE TRIBUNAL IS A FINDING OF FACTS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE ON THIS I SSUE CANNOT BE ENTERTAINED AND IS THEREFORE REJECTED. 6. IN THE RESULT MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS REJECTED. SD/- SD/- (T. K. SHARMA) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED : 18/2/2010 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD ORDER PRONOUNCED IN OPEN COURT ON 18/2/2010