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TMI Blog2016 (11) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order dated 8th December, 2011 passed by the learned Assessing Officer (hereinafter called "the AO") u/s 143(3(ii) r.w.s. 147 of the Income Tax Act,1961 (Hereinafter called "the Act"). 2. The grounds of appeal raised by the assessee company in the memo of appeal filed with the Income Tax Appellate Tribunal, Mumbai (hereinafter called "the Tribunal") read as under:- "1. On the facts and in the circumstances of the case and in law, the assessment order passed u/s 143(3)(ii) r.w.s. 147 of the I.T. Act is invalid and bad in law. 2. On the facts and in the circumstances of the case and in law, the learned C I T(A) erred in dismissing the appeal without giving full and proper opportunity of being heard in the matter. 3. On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing reasons for reopening the assessment:- "In the instant case, return of income was filed on 28.10.2005 declaring total income of Rs. 66,54,560/-. Assessment was completed u/s 143(3) assessing total income at Rs. 66,54,560/- on 24.12.2007. Subsequently, it has been noticed that the gross receipts credited to the P&L a/c amount to Rs. 6,86,78,419/- whereas, the gross receipts as per TDS certificates amounted to Rs. 13,31,69,110/- on which TDS credit of Rs. 28,66,207/- is claimed. Therefore, I have reason to believe that income of Rs. 6,44,90,691 (133169110 - 68678419) has escaped assessment within the meaning of section 147 of the Act due to failure on the part of the assessee to disclose truly and fully all material facts. Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the A.O. . The assessee was asked by the AO to furnish the details of freight paid and TDS thereon along with documentary evidences and on perusal of the details furnished by the assessee vide letter dated 02.12.2011, various discrepancies were noticed in respect of deduction of tax at source from the freight payments, the details of which are as under:- FREIGHT AND TDS DETAILS MISMATCH The assessee submitted that the provisions of chapter XVII-B of the Act were duly complied with and there was no discrepancy. It was submitted that in the case the payment or credit was less than Rs. 20,000/- or the parties submitted Form No. 15H, no TDS was deducted. From the perusal of the above table, the A.O. observed that tax has not been deducted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was duly submitted and produced the copy of letter dated 18-12-2007 addressed to the AO which was submitted before the A.O. with respect to reconciliation of TDS on freight payments. However, the ld. CIT(A) observed that nothing as such has been mentioned in that letter nor there is a reference of any enclosure thereto, hence, the assessee has not substantiated its claim of deduction of TDS on freight payments. Thus, the ld. CIT(A) observed that the assessment order u/s 143(3) of the Act dated 24th December, 2007 was passed by the A.O. without application of mind on the issue of reconciliation of TDS on freight payments. The ld. CIT(A) also rejected the contentions of the assessee that the A.O. has not given the reasons recorded, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted the details in support of contentions before the learned CIT(A) as additional evidences which was rejected by the learned CIT(A) on the grounds that the assessee was given sufficient opportunity by the AO and the assessee failed to produce these evidences before the AO and as per Rule 46A of Income Tax Rules, 1962, the assessee does not satisfy the requirements of Rule 46A of Income Tax Rules, 1962 for admission of additional evidences and hence the same were not admitted by learned CIT(A) vide appellate order dated 09-03-2012. 6. Aggrieved by the appellate order dated 09-03-2012 passed by the ld. CIT(A), the assessee is in further appeal before the Tribunal. 7. The ld. Counsel for the assessee, at the outset, submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the TDS certificate, while additions have been made on account of non-deduction of TDS under Chapter XVII-B of the Act. The decision of Hon'ble Bombay High Court in the case of CIT v. Jet Airways (I) Ltd., [2011] 331 ITR 236 (Bom) is clearly applicable to the instant case and the additions are not sustainable. The re-opening is not valid as no addition has been made by the authorities on account of the reasons on which the assessment was reopened u/s 147/148 of the Act. 8. The ld. D.R., on the other hand, relied upon the order of the ld. CIT(A). 9. We have considered the rival contentions and also perused the material available on record. We have observed that the assessee has duly filed the return of income u/s. 139 of the Act which w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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