2016 (11) TMI 376 - AT - Income Tax

Reopening of assessment - mis-match of receipts between TDS certificate and profit and loss account - Held that - We have observed that the assessee has duly filed the return of income u/s. 139 of the Act which was selected for scrutiny and assessment u/s 143(3) of the Act was duly completed on 24th December, 2007 accepting the returned income. The case was reopened u/s 147/148 of the Act on the ground that there was a mis-match in the gross receipts as declared in return of income filed with Revenue vis- -vis gross receipts as reflected as per TDS certificates. The reasons recorded for reopening were duly supplied to the assessee. The assessee has given reply explaining that the freight paid to the attached vehicles was reduced from the freight received from the attached vehicles and the net amount was credited to the P&L account along with the freight received from own vehicles. Thus the reason for the mis-match has been duly explained by the assessee which was accepted by the Revenue and no addition has been made by the Revenue on this ground. The Revenue has made the addition on some other ground i.e. non deduction of TDS on payment of freight. In our considered view, the ratio of the decision of Hon ble Bombay High Court in the case of Jet Airways (I) Ltd.(2010 (4) TMI 431 - HIGH COURT OF BOMBAY ) is directly applicable to the instant case and the addition made by the Revenue cannot be sustained.

Summary

Issues:
Reopening of assessment validity, Dismissal of appeal without proper opportunity, Disallowance under section 40(a)(ia), Admission of additional evidence under Rule 46A.

Reopening of Assessment Validity:
The appeal challenged the reopening of the assessment under section 147/148 of the Income Tax Act, citing a mis-match in gross receipts as per the P&L account and TDS certificates. The assessee contended that the original assessment had accepted the explanation for the mis-match, and no additions were made on that basis. The Tribunal observed that the reasons for reopening were duly explained by the assessee, and no additions were made by the Revenue on that ground. Relying on the decision of the Hon'ble Bombay High Court in a similar case, the Tribunal held that the addition made by the Revenue was unsustainable. Consequently, the Tribunal ordered the deletion of the addition, allowing the appeal.

Dismissal of Appeal Without Proper Opportunity:
The assessee raised concerns about the dismissal of the appeal by the CIT(A) without adequate opportunity to be heard and without considering the evidence submitted. The CIT(A) was criticized for not addressing additional grounds of appeal raised during the proceedings. However, the Tribunal's analysis focused on the validity of the reopening of the assessment and the disallowance under section 40(a)(ia), rendering the issues related to the dismissal of the appeal by the CIT(A) secondary.

Disallowance under Section 40(a)(ia):
The disallowance of ?2,13,52,044 under section 40(a)(ia) was a significant issue in the appeal. The AO disallowed this amount for non-deduction of tax at source from freight payments, adding it to the total income of the assessee. The assessee argued that the provisions of Chapter XVII-B were complied with, and no discrepancies existed. However, the AO found that tax had not been deducted as required, leading to the disallowance. The CIT(A) upheld this disallowance, rejecting the additional evidence submitted by the assessee under Rule 46A. Ultimately, the Tribunal ordered the deletion of this disallowance, emphasizing that the addition made by the Revenue was not sustainable.

Admission of Additional Evidence under Rule 46A:
The assessee attempted to submit additional evidence before the CIT(A) to support its contentions regarding TDS deductions. However, the CIT(A) rejected this additional evidence, stating that the assessee had failed to produce it before the AO and did not meet the requirements of Rule 46A of the Income Tax Rules, 1962. The Tribunal did not delve deeply into this issue, as the focus was primarily on the validity of the reopening of the assessment and the disallowance under section 40(a)(ia).

In conclusion, the Tribunal allowed the appeal, primarily focusing on the validity of the reopening of the assessment and the disallowance under section 40(a)(ia). The Tribunal found that the reasons for reopening were adequately explained by the assessee, and the addition made by the Revenue was unsustainable, leading to the deletion of the disallowance amount. The issues related to the dismissal of the appeal without proper opportunity and the admission of additional evidence under Rule 46A were not extensively addressed in the Tribunal's analysis.