Deepak Gopinath Jadhav, Pune V. Income-tax Officer,

CO 58/PUN/2013

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1330 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 15-10-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Assessee Lawyers: C V CHITALE
• Keywords: Gift; Principle of natural justice; Assessment record
• Section: 143(3); 142(1); 133(6); 194C; 28; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 1794 /PN/201 2 / ASSESSMENT YEAR : 200 9 - 1 0 THE INCOME TAX OFFICER , WARD 9(2) , PUNE. . APPELLANT VS. SHRI DEEPAK GOPINATH JADHAV, FLAT NO.105, GAYATRI ELITE, PLOT NO.516, SECTOR NO.25, NIGDI, PUNE . RESPONDENT PAN : AA OPJ3528J . / C . O . NO. 5 8 /PN/201 3 . / C . O . NO. 5 8 /PN/201 3 / ASSESSMENT YEAR : 200 9 - 1 0 SHRI DEEPAK GOPINATH JADHAV, FLAT NO.105, GAYATRI ELITE, PLOT NO.516, SECTOR NO.25, NIGDI, PUNE . CROSS OBJECTOR PAN : AAOPJ3528J VS. THE INCOME TAX OFFICER, WARD 9(2), PUNE. . RESPONDENT ASSESSEE BY : SHRI C.V. CHITALE DEPARTMENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 08 .0 9 .2015 / DATE OF PRONOUNCEMENT: 11 .0 9 .2015 2 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 / ORDER PER SUSHMA CHOWLA, JM : PER SUSHMA CHOWLA, JM : THE CAPTIONED APPEAL FILED BY THE REVENUE IS AGAINST THE ORDER OF CIT(A) - V , PUNE , DATED 19 . 06 .201 2 RELATING TO ASSESSMENT YEAR 20 09 - 1 0 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961. THE ASSESSEE HAS ALSO FILED CROSS OBJECTION AGAINST THE APPEAL OF THE REVENUE. 2. BOTH THE APPEAL OF THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE RELATING TO THE SAME ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE S AKE OF CONVENIENCE. 3. THE REVENUE IN ITA NO. 1794 /PN/201 2 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1 . WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) WAS JUSTIFIED 1 . WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE U/S 40(A)(IA) BY HOLDING THAT TDS DISALLOWANCE APPLIES ONLY TO AMOUNTS PAYABLE AS ON 31 ST MARCH AND NOT TO AMOUNTS ALREADY PAID DURING THE YEAR ? . 2 . THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE ABOVE GROUNDS OF APPEAL. 4. THE ASSESSEE IN CO NO. 58 /PN/201 3 HAS RAISED THE FOLLOWING GROUN DS OF OBJECTIONS: - A) WITHOUT CONSIDERING THE FACT THAT IN A NUMBER OF CASES PAYMENTS MADE TO A) WITHOUT CONSIDERING THE FACT THAT IN A NUMBER OF CASES PAYMENTS MADE TO TH E T R ANSPO RT S U BCONTRACTORS DO NOT EXCEED RS . 20 , 000 AT ONE TIME OR RS.50 , 000 I N AGGREGATE IN THE FINANC I A L YEAR 2008 - 09 BEING RELEVANT TO THE A . Y . 2009 - 10 AND TH EREFORE T DS I S NOT REQUIRED UNDE R SECTION 194 C OF THE INCOME TAX ACT, 1961 (THE ACT), THE ASSESSING OFFICER HAS E RR ED IN DISAL L OWING PAYMENTS MADE TO TRANSPORT CONTRACTORS UNDER PROVIS I ONS OF SEC TI ON 40 ( A) (I A ) OF TH E AC T . B) WI T HO U T CONSIDERING THE FACT THAT ON FURN I SHING OF PERMANENT ACCOUNT N UMBER BY THE CONTRAC T O R DUR I NG THE COURSE OF BUSINESS OF PLYING , H I RING OR LEASING GOODS CARR I AGES AND THEREFO R E TDS IS N OT ATTRACTED UNDER SUB - SECTION (6) OF SECTION 194 C OF THE AC T, THE ASSESS I NG OFF I CER H AS E R R E D I N DISALLOWING PAYMENTS MADE TO TRANSPORT CONTRACTORS UNDER PROVISIONS OF SECTION 40(A)(IA ) OF THE AC T . SECTION 40(A)(IA ) OF THE AC T . 3 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 C) WITHOUT CONSIDERING THE FACTS OF THE CASE , BUSINESS OF THE ASSESSEE AND NATURE OF TRANSPORTATION EXPENSES INCURRED AND PROVISIONS OF SECTION 28 OF THE I N COME TAX ACT , 1961 ( TH E AC T), THE ASSESS I NG OFFICER HAS ERRED I N D I SALLOWING EXPEND I TURE UNDE R SECTION 40(A)(IA) OF THE ACT . D ) WITHOUT CONSIDERING THE FACT T H AT PROVISION OF SECT I ON 40(A ) (IA) OF THE I NCOME TAX AC T, 1 9 6 1 (THE , AC T) ARE NOT APP LICABLE FOR EXPENSES IF PAYMENT THEREOF HAS BEEN MADE DURING TH E PREV I O U S YEAR, THE INCOME TAX OFFICER WARD 9 (2) , PUNE HAS ERRED IN MAKING D I SALLOWANCE AGGREGAT ING R S . 1 , 68 , 99 , 010 / - . E) WITHOUT CONSIDERING THE FACTS THAT WIFE HAS MADE GIFT OF RS . 5 . 00 LA KH , WHICH IS DECLARED I N H E R R E TUR N OF INCOME AND WHICH IS ON RECORD OF THE I TO , THE ASS E SSING OFFICER HAS E R RED IN MAK IN G DISA LL OWANCE UNDER SECT I ON 68 OF THE ACT OF AN AGG R EGATE A M O U NT O F RS.5 , 00 , 000 / - AND T H E COMMISSIONER OF INCOME TAX (APPEALS) - V , PU NE HAS ERRED I N NOT CONF I RM I NG THE SAME. F) WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ASSESSING OFFICER HAS ERRED IN MAKING DISALLOWANCE UNDER SECTION 68 OF THE ACT OF AN OFFICER HAS ERRED IN MAKING DISALLOWANCE UNDER SECTION 68 OF THE ACT OF AN AGGREGATE AMOUNT OF RS . 5 , 00,000 / - A N D THE CIT (A) - V , PUNE HAS ERRED IN NOT APPRECIATING THE ASSESSEE ' S CASE. G) THE APPELLANT CRAVES LEAVE TO ADD , AMEND OR ALTER ANY OF T HE ABOVE CROSS OBJECTIO N S . 5. THE ONLY ISSUE RAISED IN THE APPEAL FILED BY THE REVENUE IS AGAINST THE DELETION OF DISALLOWANCE MADE UNDER SE CTION 40(A)(IA) OF THE ACT BY HOLDING THAT THE SAID PROVISIONS WERE APPLICABLE ONLY TO THE AMOUNTS PAYABLE AS ON 31 ST MARCH AND NOT THE AMOUNTS ALREADY PAID DURING THE Y E AR. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT THE I SSUE IS SETTLED BY THE ORDER OF TRIBUNAL IN SANGAMNER TALUKA SAHAKARI DUDH UTPADAK AND PRAKRIYA SANGH MARYADIT VS. TRO IN ITA NO.1752/PN/2013, RELATING TO ASSESSMENT YEAR 2007 - 08 , DATED 20.02.2015, WHEREIN IT HAS BEEN HELD THAT THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT ARE TO BE APPLIED IRRESPECTIVE OF THE AMOUNT BEING PAID DURING THE YEAR OR BEING PAYABLE AS ON 31 ST MARCH. 7. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IN THE ALTERNATE TO ITS CLAIM OF DEDUCTION ON ACCOUNT OF EXPENDITURE, THE GROUNDS OF APPEAL HAVE BEEN RAISED BY WAY OF CROSS - OBJECTIONS TO POINT OUT THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE SINCE THE INITIAL PROVISIONS OF OF SECTION 40(A)(IA) OF THE ACT ARE NOT APPLICABLE SINCE THE INITIAL PROVISIONS OF SECTION 194C OF THE ACT ARE NOT ATTRACTED. 4 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 8. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE WAS PROPRIETOR OF THREE CONCERNS VIZ. (1) M/S. DEEJAY ENTERPRISES, WHICH IS ENGAGED IN THE BUSINESS OF PROCESSING AND SUPPLY OF SILICA AND SAND, (2) M/S. DEESHA CARGO MOVERS AND (3) M/S. SHIVAM TRANSPORT CO., CA RRYING ON THE BUSINESS AS TRANSPORT CONTRACTOR. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD DEBITED SUM OF RS. 17,51,627/ - UNDER THE HEAD O THER /MISCELLANEOUS EXPENSES WHICH INCLUDE TRANSPORT CHARGES OF RS.15,60,000/ - IN RESPECT OF M/S. DEEJAY ENTE RPRISES. AS REGARDS THE OTHER FIRMS I.E. M/S. DEESHA CARGO MOVERS AND M/S. SHIVAM TRANSPORT CO. ARE CONCERNED, AN AMOUNT OF RS.1,50,77,123/ - AND RS.2,61,887/ - RESPECTIVELY HAVE BEEN DEBITED TO THE RESPECTIVE P & L ACCOUNT UNDER THE HEAD TRANSPORT CHARGES . THE ASSESSEE WAS CONFRONTED WITH THE APPLICABILITY OF PROVISIONS OF SECTION 194C OF THE ACT IN RESPECT OF TRANSPORT CHARGES CLAIMED. THE ASSESSEE IN REPLY, SUBMITTED THE DETAILS INCLUDING LIST OF MORE THAN 1200 TRUCK DRIVERS TO WHOM THE TRANSPORT CHAR GES HAD BEEN PAID BY THE ASSESSEE. THE ASSESSING OFFICER NOTES THAT THOUGH THE ASSESSEE BEEN PAID BY THE ASSESSEE. THE ASSESSING OFFICER NOTES THAT THOUGH THE ASSESSEE HAD GIVEN THE DETAILS OF TRUCK DRIVERS, BUT HAD FAILED TO FURNISH ANY EXPLANATION REGARDING APPLICABILITY OF TDS PROVISIONS. FURTHER, THE LIST FURNISHED BY THE ASSESS EE DISCLOSES ONLY THE NAMES OF TRUCK DRIVERS AND THE TRUCK NUMBERS AND PAN NUMBERS AND AMOUNT CLAIMED TO HAVE BEEN PAID. HOWEVER, COMPLETE DETAILS I.E. FULL NAME, ADDRESS, ETC. WERE NOT FURNISHED. THE ASSESSING OFFICER IN ORDER TO VERIFY THE CORRECTNESS OF THE CLAIM, MADE CERTAIN PAN VERIFICATIONS FROM THE COMPUTER SYSTEM, WHICH REVEALED THAT IN SOME CASES THE PAN GIVEN WERE INVALID AND IN SOME CASES, PAN GIVEN DID NOT TALLY WITH THE NAMES GIVEN IN THE LIST. THE ASSESSING OFFICER AT PAGE 2 OF THE ASSESSM ENT ORDER HAS ENLISTED CERTAIN DISCREPANCIES IN THIS REGARD. THE ASSESSING OFFICER WAS THUS, OF THE VIEW THAT THE DETAILS GIVEN BY THE ASSESSEE WERE NOT CORRECT. FURTHER, IT WAS NOTED THAT SOME OF THE NAMES APPEARED REPEATEDLY IN THE LIST I.E. NAME OF S. RAJU APPEARED 50 TIMES, NAME OF BAZEE APPEAR ED 38 TIMES, NAME OF SHREENU APPEARED 83 TIMES AND SO ON. FURTHER 5 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 ENQUIRIES WERE MADE IN RESPECT OF CERTAIN LOCAL PARTIES BY DEPUTING THE INSPECTOR OF THE WARD AND ALSO ENQUIRIES WERE MADE WITH THE LOCAL RTO OFF ICE. THE LOCAL ENQUIRIES REVEALED THAT THE TRUCK NUMBERS GIVEN BY THE ASSESSEE IN SOME CASES BELONGS TO SOME OTHER PARTIES AND NOT TO THE NAMES GIVEN BY THE ASSESSEE. SUCH PARTIES COULD NOT CONFIRM / QUANTIFY THE TRANSPORT CHARGES RECEIVED BY THEM FROM T HE ASSESSEE. FURTHER, THE ENQUIRIES MADE FROM THE RTO AUTHORITIES REVEALED THAT SOME OF THE TRUCK NUMBERS WERE IN FACT CAR NUMBERS AND SCOOTER NUMBERS, WHICH ARE ENLISTED UNDER PARA 7 AT PAGE 3 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER, I N VIEW THER EOF, OBSERVED THAT THE LIST GIVEN BY THE ASSESSEE COULD NOT BE ACCEPTED IN TOTO AS THE DETAILS GIVEN WERE NOT CORRECT IN RESPECT OF SOME OF THE CASES. ANOTHER ENQUIRY IN THE CASE OF SHRI RAJKUMAR R DHOTRE REVEALED THAT HE WAS OWNER OF FOUR VEHICLES HAVING REGISTRATION NUMBERS MH14 F 7580, MH14 CP 7580, MH14 BJ 7580 AND MH12 FC 7488 AND AS PER THE DETAILS SUBMITTED BY THE ASSESSEE, THESE VEHICLES WERE REFLECTING AGAINST DIFFERENT NAMES. THOUGH THE ASSESSEE HAS GIVEN DIFFERENT NAMES AGAINST THE VEHICLES, HO WEVER, THE ENQUIRY ASSESSEE HAS GIVEN DIFFERENT NAMES AGAINST THE VEHICLES, HO WEVER, THE ENQUIRY REVEALED THAT OWNER OF ALL THESE FOUR VEHICLES WAS ONE PERSON AND THE TOTAL AMOUNT OF TRANSPORTATION CHARGES PAID IN RESPECT OF THESE FOUR VEHICLES OWNED BY SHRI RAJKUMAR R DHOTRE WAS RS.2,52,180/ - AND EVEN THEN, THE ASSESSEE HAD NOT DED UCTED TAX AT SOURCE. SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE IN THIS REGARD, WHICH IS REPRODUCED UNDER PARA 10 AT PAGE 4 OF THE ASSESSMENT ORDER. IN REPLY, THE ASSESSEE FURNISHED SUBMISSIONS WHICH ARE REPRODUCED UNDER PARA 11, PAGES 5 TO 9 OF THE AS SESSMENT ORDER. 9. THE FIRST OBJECTION RAISED BY THE ASSESSEE WAS THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WERE APPLICABLE TO THE AMOUNT PAYABLE AND NOT PAID. THIS ARGUMENT OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER IN VIEW OF THE VARIOUS DECISIONS. IN RESPECT OF OBJECTIONS OF THE ASSESSEE TO VARIOUS DEFECTS POINTED OUT IN THE SHOW CAUSE NOTICE, THE ASSESSING OFFICER CONSIDERED THE 6 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 ARGUMENTS OF THE ASSESSEE AND DELIBERATED UPON THE ISSUE. THE PLEA OF THE ASSESSEE THAT IT HAD NOT MADE PAYMENTS EXCEEDING RS.20,000/ - ON ANY SINGLE DAY AND THE AMOUNT INVOLVED IN AGGREGATE DID NOT EXCEED RS.50,000/ - , WAS REJECTED BY THE ASSESSING OFFICER SINCE THE ASSESSEE HAD FAILED TO MAINTAIN PARTY - WISE / INDIVIDUAL - WISE LEDGER ACCOUNTS OF THE TRANS PORT CHARGES. HENCE, THIS CLAIM OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER. IN RESPECT OF THE LIST OF TRUCK NUMBERS GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER NOTED THAT MOSTLY THE SAID TRUCKS WERE OF STATES OUTSIDE MAHARASHTRA AND ONLY WITH THE SINGLE NAME AND TRUCK NUMBER ETC. VERIFICATION OF THE CLAIM WITH THE PARTIES LOCATED OUTSIDE MAHARASHTRA W ERE NOT POSSIBLE. FURTHER, THE ASSESSING OFFICER OBSERVED THAT THE LOCAL ENQUIRIES FROM THE RTO OFFICE REVEAL ED CERTAIN DISCREPANCIES AND WHERE THE ASSESSEE HAD FAILED TO ESTABLISH THE CORRECTNESS AND GENUINENESS OF ITS CLAIM, THE SAME COULD NOT BE ALLOWED. IN RELATION TO THE PAN NUMBERS GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER SEARCHED FOR AD DRESSES OF THE PAN HOLDERS AND INFORMATION WAS SOU GHT UNDER SECTION 133(6) OF THE ACT. HOWEVER, NONE OF THE PARTIES REPLIED TILL THE UNDER SECTION 133(6) OF THE ACT. HOWEVER, NONE OF THE PARTIES REPLIED TILL THE COMPLETION OF ASSESSMENT EXCEPT IN THE CASE OF ONE SHRI POPAT JAGANNATH SHENDE, WHO VIDE REPLY DATED 21.12.2011 SAID THAT HE WAS OWNER OF TWO TRUCKS AND HAD NOT KEPT ANY BO OKS OF ACCOUNT DURING THE FINANCIAL YEAR. HE FURTHER STATED THAT THE ASSESSEE WAS UNKNOWN PERSON AND HE HAD NO BUSINESS RELATION WITH HIM. SINCE THE ASSESSEE HAD FAILED TO DEDUCT TDS AS PER PROVISIONS OF SECTION 194C OF THE ACT ON THE TRANSPORT / HIRE CH ARGES DEBITED TO THE BOOKS OF ACCOUNT, THE EXPENDITURE CLAIMED BY THE ASSESSEE WAS HELD TO BE NOT ALLOWABLE AS DEDUCTION, IN VIEW OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND SUM OF RS. 1,68,99,010/ - WAS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 10 . THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE RELYING ON THE SPECIAL BENCH DECISION OF VISAKHAPATNAM IN M/S. MERLIN SHIPPING AND TRANSPORTERS VS. ACIT (2012) 2 0 T AXMANN.COM 224 (VISHAKHAPATNAM) . SINCE THE AMOUNT OF RS.1.69 7 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 CRORES WAS PAID TO THE RESPECTIVE PARTIES DURING THE FINANCIAL YEAR ITSELF, THE CIT(A) HELD THAT THE CASE WAS SQUARELY COVERED BY THE SPECIAL BENCH DECISION AND NO DISALLOWANCE WAS WARRANTED UNDER SECTION 40(A)(IA) OF THE ACT . 1 1 . THE REVENUE IS IN APPEAL AGAINST THE SAID FINDING OF CIT(A). 1 2 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE OF PAID OR PAYABLE AS ENVISAGED UNDER SECTION 40(A)(IA) OF THE ACT HAS BEEN CONSIDERED BY PUNE BENCH OF TRIBUNAL IN VARIOUS DECISIONS AND IT HAS BEEN HELD THAT I N VIEW OF THE DECISIONS OF VARIOUS HONBLE HIGH COURTS ON THIS ISSUE, THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE ATTRACTED EVEN WHERE THE PAYMENTS IN RESPECT OF THE EXPENDITURE CLAIMED IS MADE BEFORE THE CLOSE OF YEAR. WE FIND THE ISSUE OF PAID / PAYABLE AS ENVISAGED UNDER SECTION 40(A)(IA) OF THE ACT HAS BEEN DEALT WITH BY PUNE BENCH OF TRIBUNAL IN SANGAMNER TALUKA SAHAKARI DUDH UTPADAK AND PRAKRIYA SANGH MARYADIT VS. TRO (SUPRA) , WHEREIN, VIDE PARA 10 AND 11 , THE ISSUE WAS DECIDED AGAINST THE ASS ESSEE . 1 3 . FOLLOWING THE SAME PARITY OF REASONING, WE REVERSE THE ORDER OF CIT(A) IN THIS REGARD AND ALLOW THE GROUNDS OF APPEAL RAISED BY THE REVENUE. 1 4 . NOW, COMING TO THE ALTERNATE PLEA RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE VIDE ITS GROUNDS OF OBJECTIONS. THE FIRST OBJECTION RAISED BY THE ASSESSEE WAS THAT IN NUMBER OF CASES, THE PAYMENT MADE TO THE TRANSPORT SUB - CONTRACTORS DID NOT EXCEED RS.20,000/ - AT ONE TIME OR RS.50,000/ - IN AGGREGATE IN THE FINANCIAL YEAR AND HENCE, TDS WAS NOT REQUIRED TO BE DEDUCTED UNDER SECTION 194C OF THE ACT. THE SECOND OBJECTION RAISED BY THE ASSESSEE IS THAT WHERE THE PAN NUMBER OF CONTRACTORS HAVE BEEN FURNISHED, TDS WAS NOT ATTRACTED UNDER SUB - SECTION (6) OF SECTION 194C OF THE ACT AND THE ASSESSING OFFICER HAD ERRED IN DISALLOWING THE SAID PAYMENTS UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF 8 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 THE ACT . THE NEXT OBJECTION RAISED BY THE ASSESSEE VIDE ITS CROSS OBJECTIONS WAS THAT THE BUSINESS OF ASSESSEE AND THE NATURE OF TRANSPORTATION EXPEN SES INCURRED AND IN VIEW OF THE PROVISIONS OF SECTION 28 OF THE ACT, NO DISALLOWANCE WAS WARRANTED UNDER SECTION 40(A)(IA) OF THE ACT . THE PLEA VIDE GROUND OF OBJECTION (D) IS IN RESPECT OF PAID / PAYABLE, WHICH WE HAVE ALREADY ADJUDICATED WHILE DECIDING THE APPEAL OF THE REVENUE. 1 5 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE DURING THE COURSE OF HEARING POINTED OUT THAT PERUSAL OF BILLS AND TRANSPORT DETAILS AT PAGE 36 ONWARDS OF PAPER BOOK REFLEC T THAT THE INDIVIDUAL PAYMENTS DID NOT EXCEED RS.20,000/ - AND ALSO AGGREGATE PAYMENTS DID NOT EXCEED RS.50,000/ - . ANOTHER ASPECT RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE ASSESSEE HAD RECEIVED FORM NO.15I FROM THE RESPECTIVE TRANSPORT ER S FOR NON - DEDUCTION OF TDS. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THOUGH THE SAID FORM NO.15I WAS NOT FILED BEFORE THE C OMMISSIONER , HOWEVER, IN VIEW OF THE SAID FORM NO.15I WAS NOT FILED BEFORE THE C OMMISSIONER , HOWEVER, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF GUJARAT IN CIT VS. VALIBHAI KHANBHAI MANKAD (20 13) 92 DTR (GUJ) 267 , NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT COULD BE MADE. IN THIS REGARD, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER , COPY OF WHICH IS PLACED AT PAGE 1 3 OF PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE COPIES OF FORM NO.15I WERE ALREADY AVAILABLE ON THE RECORD OF ASSESSING OFFICER. HOWEVER, NONE OF THOSE COPIES WERE AVAILABLE WITH THE ASSESSEE. IN RESPECT OF O BJECTION (C) RAISED IN CROSS OBJECTIONS I.E. WHETHER IN VIEW OF THE PROVISIONS OF SECTION 28 OF THE ACT, NO DISALLOWANCE WAS WARRANTED. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FAIRLY ADMITTED THAT THE SAID GROUND OF OBJECTION IS TO BE DISMI SSED. ANOTHER PLEA RAISED IS WITH REGARD TO FURNISHING OF PAN NUMBERS OF RESPECTIVE TRUCK OWNERS. 9 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 1 6 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE CROSS OBJECTIONS FILED BY THE ASSESSEE IS ALTERNATE TO THE MAIN I SSUE RAISED IN THE PRESENT APPEAL IS THAT WHETHER THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE TO THE PAYMENTS WHICH HAVE BEEN MADE DURING THE YEAR OR STILL PENDING TO BE PAID AT THE CLOSE OF YEAR. WE HAVE ALREADY ADJUDICATED THE FIRST IS SUE IN THIS REGARD AND HELD IN THE PARAS HEREINABOVE THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE ATTRACTED IRRESPECTIVE OF THE AMOUNT BEING PAID / PAYABLE AT THE CLOSE OF YEAR. 1 7 . NOW , COMING TO THE PLEA RAISED BY THE ASSESSEE THAT IT HAD M ADE INDIVIDUAL PAYMENTS TO THE TRUCK OWNERS, WHICH WERE LESS THAN RS.20,000/ - , EVEN IN SOME CASES, WHETHER THE PAYMENTS WERE MORE THAN ONE , THE AGGREGATE OF PAYMENTS DURING THE YEAR DID NOT EXCEED RS.50,000/ - . 1 8 . UNDER THE PROVISIONS OF SECTION 194C OF T HE ACT, IT IS PROVIDED THAT WHERE A PERSON IS RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK, IN PURSUANCE OF CONTRACT BETWEEN THE CONTRACTOR AND THE SPECIFIED PERSON, THEN, SUC H PERSON AT THE TIME OF CREDIT OF SUCH AMOUNT, TO THE ACCOUNT OF CONTRACTOR OR AT THE TIME OF PAYMENT WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO 1% IN THE CASE OF ADVERTISING AND IN ANY CASE 2% OF SUCH SUM AS INCOME TAX ON INCOME COMPRISED THEREIN. A DMITTEDLY, IN THE CASE OF ASSESSEE BEFORE US, THE PROVISIONS OF SECTION 194C OF THE ACT WERE ATTRACTED IN RESPECT OF TRANSPORT CHARGES PAID BY THE ASSESSEE TO DIFFERENT ENTITIES. THE ASSESSEE IN ITS PAPER BOOK HAS ATTACHED THE LIST OF PERSONS TO WHOM IT H AS PAID THE TRANSPORT CHARGES FOR HIRING THE TRUCKS, IN THE COURSE OF CARRYING ON ITS BUSINESS OF TRANSPORTATION OF SILICA SAND FROM MINES. THE SAID DETAILS ARE ENCLOSED 10 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 AT PAGES 36 TO 54 OF THE PAPER BOOK TOTALING RS.1,50,77,123/ - AND AT PAGES 55 TO 57 T OTALING RS. 15,60,000/ - AND AT PAGE 58 TOTALING RS.2,00,000/ - . 1 9 . THE ASSESSEE WA S CARRYING ON THE BUSINESS OF TRANSPORTATION UNDER THREE PROPRIETARY CONCERNS. THE PERUSAL OF DETAILS REFLECT THAT THE ASSESSEE HAS FURNISHED THE INFORMATION DATE - WISE OF VE HICLE NUMBER, NAME OF THE PARTY, PAN NUMBER AND THE AMOUNT PAID TO THE SAID PARTY. THE SAID LIST WAS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER WHO IN TURN, HAD CARRIED OUT CERTAIN INVESTIGATION AND HAD MADE ELABORATE ENQUIRIES FROM THE LOCAL RT O IN RESPECT OF OWNERSHIP OF THE TRUCKS, FROM THE PERSONS WHOSE PAN NUMBERS WERE DECLARED BY THE ASSESSEE AND HAD ALSO ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT TO THE RESPECTIVE PARTIES WHOSE PAN NUMBERS WERE GIVEN. THE ASSESSING OFFICER HAD ALSO FOU ND FROM THE VERIFICATION EXERCISE THAT THE PAN NUMBERS GIVEN BY THE ASSESSEE DID NOT TALLY WITH THE NAME OF PERSONS AVAILABLE ON THE COMPUTER SYSTEM. THE ASSESSING OFFICER ALSO FOUND FROM LOCAL ENQUIRIES THAT THE TRUCK NUMBERS GIVEN BY THE ASSESSEE IN SOM E FOUND FROM LOCAL ENQUIRIES THAT THE TRUCK NUMBERS GIVEN BY THE ASSESSEE IN SOM E CASES BELONGED TO SOME OTHER PARTIES AND NOT THE NAMES GIVEN BY THE ASSESSEE , S UCH PARTIES ALSO DID NOT CONFIRM OR QUANTI FIED THE TRANSPORT CHARGES RECEIVED BY THEM FROM THE ASSESSEE. FURTHER ENQUIRIES WERE MADE WITH THE RTO, WHICH REVEALED THAT SOME OF THE TRUCK NUMBERS GIVEN BY THE ASSESSEE WERE IN FACT THE CAR NUMBERS AND SCOOTER NUMBERS. THE EXAMPLE OF SUCH INCIDENTS ARE REPRODUCED UNDER PARA 7 OF THE ASSESSMENT ORDER. ANOTHER ASPECT NOTED BY THE ASSESSING OFFICER IN RESPECT OF ENQUIRIES MADE FROM ONE SHRI RAJKUMAR R DHOTRE WAS, WHOSE PAN NUMBER WAS GIVEN BY THE ASSESSEE, THAT HE WAS OWNER OF FOUR VEHICLES AND THE TOTAL RECEIPTS IN RESPECT OF THE SAID FOUR VEHICLES WERE RS. 2,52,180/ - . THE INVESTIGATION EXERCISE CARRIED OUT BY THE ASSESSING OFFICER WAS CONFRONTED TO THE ASSESSEE AND IN THE REPLY, THE ASSESSEE HAD ONLY STRESSED THAT NO INDIVIDUAL PAYMENT OF RS.20,000/ - OR MORE ON ANY SINGLE DAY WAS MADE, HENCE, NO LIABILITY TO DEDUCT TAX AT SOURCE UNDER THE PROVISIONS OF SECTION 194C(3) OF THE ACT. A NOTHER 11 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 PLEA RAISED BY THE ASSESSEE WAS THAT THE TRUCKS / LORRIES GENERALLY BELONGED TO THE DRIVERS AND THEY DID NOT OWN MORE THAN TWO TRUCKS OR VEHICLES. IN RESPECT OF VARIOUS DISCREPANCIES POINTED OUT BY THE ASSESSING OFFICER THAT THE PAN NUMBERS DID NOT MA TCH, THE ASSESSEE STATED THAT IT HAD COMPLIED WITH THE SAID INFORMATION AT THE REQUEST OF THE ASSESSING OFFICER AND THERE MIGHT BE SOME TYPOGRAPHICAL ERRORS, SPELLING MISTAKES OR ERRORS IN INPUTS. HOWEVER, JUST BECAUSE SOME INFORMATION DO NOT MATCH WI TH THE DATA AVAILABLE WITH YOU ON COMPUTER SYSTEM, WE ARE OF THE OPINION THAT IT WILL BE INCORRECT TO TERM THAT THE ENTIRE INFORMATION GIVEN WAS WRONG, SUCH WAS THE PLEA RAISED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. THE ASSESSEE ALLEGED THAT IN CA SE SPECIFIC CASES WERE POINTED OUT, HE WOULD CHECK THE RECORDS AND RECTIFY WHEREVER NECESSARY. IN RESPECT OF ALLEGATION OF THE ASSESSING OFFICER THAT THE AGGREGATE AMOUNT OF TRANSPORTATION CHARGES EXCEED RS.50,000/ - OR NOT THOUGH DIFFERENT PAN NUMBERS WER E GIVEN BY THE ASSESSEE, IT WAS EXPLAINED THAT IN VIEW OF THE VOLUM INOUS NATURE OF THE BUSINESS IT MAY BE POSSIBLE THAT SOME LORRIES / TRUCKS HAD BEEN ALLOTTED MORE THAN ONE TRIP. HOWEVER, CONSIDERING THE LORRIES / TRUCKS HAD BEEN ALLOTTED MORE THAN ONE TRIP. HOWEVER, CONSIDERING THE VOLUM INOUS NATURE OF THE BUSINESS, IT WAS PRACTICA LLY IMPOSSIBLE TO KEEP A TRACK OF EACH AND EVERY TRUCK TO DETERMINE WHETHER THEY HAD BEEN ALLOTTED TRIPS BY THE ASSESSEE PREVIOUSLY. 20 . IN RESPECT OF INFORMATION GATHERED FROM THE RTO THAT THE VEHICLE NUMBERS GIVEN BY THE ASSESSEE WERE OF CARS AND SCOO TERS, THE ASSESSEE EXPLAINED THAT THE STAFF MAY HAVE GIVEN THE VEHICLE NUMBERS OF PERSON S WHO HAD COME TO COLLECT THE BALANCE PAYMENT AND THERE MAY BE ERRORS IN PRONOUNCING AND WRITING BY HIS STAFF. THE ASSESSEE ASKED THE ASSESSING OFFICER TO GIVE SPECIFI C INFORMATION AVAILABLE WITH HIM. IN RESPECT OF PAN NUMBERS NOT BEING MATCHING, THE ASSESSEE EXPLAINED THAT MAY BE THE PERSONS HAD SOLD / DISPOSE D OFF HIS VEHICLE AT TIME AFTER PROVIDING TRANSPORT SERVICES AND THERE MAY BE A POSSIBILITY THAT THE PERSONS W HO BOUGHT THE SAID VEHICLES FROM OTHER PERSONS MIGHT NOT HAVE CHANGED THE INFORMATION IN THE 12 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 DATA BASE AS AVAILABLE WITH THE RTO. ANOTHER OBJECTION RAISED BY THE ASSESSEE WAS WITH REGARD TO FORM NO.15I FILED IN RESPECT OF CERTAIN TRANSPORTERS, COPIES OF W HICH WERE NOT FILED BEFORE US, BUT WERE CLAIMED TO BE FILED BEFORE THE ASSESSING OFFICER. 21. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THOUGH WE FIND MERIT IN THE PLEA OF THE ASSESSEE THAT THERE IS NO REQUIREMENT FOR DEDUCTION OF TAX A T SOURCE, WHERE THE INDIVIDUAL PAYMENT TO A PERSON DID NOT EXCEED RS.20,000/ - AND EVEN IF IT EXCEEDED RS.20,000/ - , WHERE THE AGGREGATE PAYMENT TO A PERSON DID NOT EXCEED RS.50,000/ - IN A YEAR, HOWEVER, ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CASE IN TOT ALITY. BY MERELY FILING THE LIST OF TRUCK NUMBERS AND THE PAYMENT MADE ON DAY - TO - DAY BASIS, THE PLEA OF THE ASSESSEE CANNOT BE ACCEPTED AT FACE VALUE, ESPECIALLY IN A CASE WHERE ELABORATE EXERCISE OF VERIFICATION HAS BEEN CARRIED OUT BY THE ASSESSING OFFI CER. THE ASSESSING OFFICER HAS COLLECTED INFORMATION AND CONFRONTED THE SAME TO THE ASSESSEE, WHICH COULD NOT BE EXPLAINED BY THE CONFRONTED THE SAME TO THE ASSESSEE, WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE, EXCEPT FOR STATING THAT THERE MAY BE ERRORS, SOME MISTAKES IN COMPILING THE DETAILS OR IN WRITING THE INFORMATION, BUT IT DOES NOT ABSOLVE THE ASSESSEE OF ITS ONUS. THE ASSESSING OFFICER VIDE PARA 6 NOTES THAT THE ASSESSEE HAD FURNISHED THE LIST OF MORE THAN 1200 TRUCK DRIVERS AND HAD TRIED TO CORRELATE THE PAN NUMBERS GIVEN BY THE ASSESSEE WITH THE PAN NUMBERS AVAILA BLE ON COMPUTER SYSTEM. THE VERIFICATION EXERCISE REVEALED THAT IN CASES OF THE UNDER - MENTIONED PERSONS, THE PAN GIVEN DID NOT TALLY W ITH THE NAMES GIVEN IN THE LIST: - SR NO NAME AS GIVEN PAN GIVEN PAN PERTAINS TO IN THE LIST AS PER SYSTEM 1 S RAJU BIBPP7864F SREEDEVI PODILI 2 S RAJU AMFPT9962R SHRINU TIRUMANI 3 S RAJU AGPPV3671 VENU GOPAL REDDY VEMIREDDY 4 BAZEE AHSPM4570E KAILASH MEGHWANSHI 5 BAZEE AISPT2997D VINOD MANIKLAL TIWARI 6 BAZEE AJJPP4039Q GHANSHAM H TIWARI 7 BAZEE AF GPB9058N HARI KRISHNA BOLINENI 13 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 2 2 . THE ASSESSING OFFICER FURTHER NOTED THAT SOME OF THE NAMES APPEARED REPEATEDLY IN THE LIST I.E. NAME OF S. RAJU APPEARED 50 TIMES, NAME OF BAZEE APPEARED 38 TIMES, NAME OF SHREENU APPEARED 83 TIMES AND SO ON. FURTHER , THE TRUCK NUMBERS ALSO REPEATED AGAINST VARIOUS NAMES AND IN VIEW THEREOF, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE LIST GIVEN BY THE ASSESSEE CANNOT BE RELIED UPON. IN THE ABSENCE OF COMPLETE DETAILS , THE ASSESSING OFFICER WAS OF THE VIEW THAT TH E LIST GIVEN BY THE ASSESSEE COULD NOT BE TAKEN AS SACROS CENT. FURTHER, THE ASSESSING OFFICER MADE LOCAL ENQUIRIES BY DEPUTING THE INSPECTOR AND OBSERVED AS UNDER: - 8. FROM THE ABOVE, IT IS CLEAR THAT THE DETAILS GIVEN BY THE ASSESSEE IN THE LIST CANNO T BE ACCEPTED IN TOTO AS THE DETAILS GIVEN WERE NOT CORRECT IN RESPECT OF SOME OF THE CASES AS NARRATED ABOVE. THE DETAILS GIVEN BY THE ASSESSEE CONTAINS VARIOUS TRUCK NUMBERS BELONGING TO VARIOUS OTHER PLACES (OUT OF MAHARASHTRA/PUNE) AND HENCE, VERIFICA TION WAS CARRIED OUT IN RESPECT OF SOME OF THE LOCAL PARTIES. HOWEVER, SUCH VERIFICATION REVEALED THAT THE DETAILS GIVEN IN THE LIST WERE NOT CORRECT IN MOST OF THE CASES; 9. ALSO AS PER THE ENQUIRIES IN THE CASE OF SHRI RAJKUMAR R DHOTRE (PAN 9. ALSO AS PER THE ENQUIRIES IN THE CASE OF SHRI RAJKUMAR R DHOTRE (PAN AJ XPD 577 5B) IT IS REVEALED THAT, HE IS OWNER OF FOUR VEHICLES HAVING REGISTRATION NUMBERS MH14 F 7580, MH14 CP 7580, MH14 BJ 7580 AND MH12 FC 7488 AN D AS PER THE DETAILS SUBMITTED BY THE ASSESSEE, THESE VEHICLE NUMBERS ARE REFLECTING AGAINST DIFFERENT NAMES. THOU GH THE ASSESSEE HAS GIVEN DIFFERENT NAMES AGAINST THESE VEHICLE NUMBERS, HOWEVER, SINCE ON ENQUIRY IT IS REVEALED THAT THE OWNER OF ALL THESE FOUR VEHICLES IS ONE SHRI RAJKUMAR R. DHOTRE, AND NOT DIFFERENT PERSONS AS STATED BY THE ASSESSEE. IT IS ALSO SEE N FROM THE DETAILS GIVEN BY THE ASSESSEE THAT TOTAL AMOUNT OF TRANSPORTATION CHARGES PAID IN RESPECT OF THESE 4 VEHICLES OWNED BY SHRI RAJKUMAR DHOTRE IS RS.2,52,180/ - AND EVEN THEN THE ASSESSEE HAS NOT MADE ANY TDS AT ALL. 23. THE ASSESSING OFFICER SHOW CAUSED THE ASSESSEE AND CONTENTS OF SHOW CAUSE NOTICE ARE REPRODUCED UNDER PARA 10 ON PAGE 4 OF THE ASSESSMENT ORDER . THE PERUSAL OF SHOW CAUSE NOTICE REFLECTS THAT THE ASSESSING OFFICER DID NOT SHOW CAUSE THE ASSESSEE AS TO THE EXACT OUTCOME OF THE INVE STIGATION CARRIED OUT BY THE ASSESSING OFFICER. THE REPLY FILED BY THE ASSESSEE, WHICH IS ALSO REPRODUCED IN THE ASSESSMENT ORDER ALSO REFLECTS THAT THE ASSESSEE TIME AND AGAIN ASKED THE ASSESSING OFFICER TO GIVE COMPLETE DETAILS OF THE INVESTIGATION AND ITS RESULTS. THE 14 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 ASSESSING OFFICER VIDE PARA S 21 TO 24 DISMISSED THE PLEA OF THE ASSESSEE OBSERVING AS UNDER: - 21. THE ARGUMENTS PUT FORTH BY THE ASSESSEE IN OTHER PARA OF THE SUBMISSION DATED 15.12.2011 ARE DEALT WITH AS UNDER: IN PARA 1.A THE ASSESSEE CLAIMS THAT THE TRUCKS / L ORRIES ARE ALLOTTED TO DIFFERENT TRUCK OWNERS BY THE MINES AND NOT BY THE ASSESSEE. IT IS FURTHER STATED THAT THE ASSESSEE HAS NO SAY IN ALLOTMENT OF TRUCK/LORRIES AS THE SAME IS DONE ON A DAY TO DAY BASIS BY THE MINES AS PER THEI R LIST AND THERE IS NO CONTRACT BETWEEN THE ASSESSEE AND THE DIFFERENT TRUCK OWNERS AND HENCE DISALLOWANCE U/S.40(A)(IA) IS NOT WARRANTED AS HELD IN THE CASE OF ITO VS INDIAN ROADLINES (CITED SUPRA) SINCE EACH JOB UNDERTAKEN BY A TRUCK OWNER WAS A SEPARATE JOB FOR THE SAME PERSON AT DIFFERENT RATES AND TERMS AND HENCE DIFFERENT JOB WILL NOT TURN INTO SINGLE CONTRACT. IN THIS CONTEXT, IT IS PERTINENT TO NOTE HERE THAT THE DECISION OF ITAT JODHPUR BENCH IN THE CASE OF SHREE CHOUDHARY TRANSPORT CO. VS ITO REFE RRED TO IN PARA 19 ABOVE, HAS TAKEN A CONTRARY VIEW AND AS HELD IN THE SAID DECISION AND ALSO IN VIEW OF CB D T CIRCULAR NO . 715 DATED 8.8.1995 GOODS CARRIED UNDER SEPARATE RECEIPT/BIL L WOULD CONSTITUTE A SEPARATE CONTRACT AND ASSIGNMENT OF SUCH 'CONTRACT BY ASSESSEE TO TRUCK OWNER/OPERATORS HAS TO BE CONSIDERED AS SUB CONTRACT AND 'SECTION 194C WAS APPLICABLE. THE ARGUMENT OF THE ASSESSEE IN PARA 1.B IS MORE OR LESS SIMILAR TO THE ARGUMENTS IN PARA 1.A AND IN VIEW OF THE REASONING GIVEN ABOVE, I.E. IN VIEW OF THE DECISIONS IN THE CASE OF SHREE CHOUDHARY TRANSPORT CO. AND IN VIEW OF CBOT CIRCULARS 715 DATED 8.8.1995, THIS PLEA OF THE ASSESSEE IS ALSO REJECTED. THE ARGUMENTS IN PARA 1.C ARE CONCERNED, IT IS PERTINENT TO NOTE HERE THAT THE ASSESSEE WAS ASKED T O GIVE FULL DETAILS OF ALL EXPENSES CLAIMED, DETAILS OF TDS AND RELEVANT SUPPORTING DOCUMENTS ETC. VIDE QUESTIONNAIRE ISSUED ALONGWITH NOTICE U/S. RELEVANT SUPPORTING DOCUMENTS ETC. VIDE QUESTIONNAIRE ISSUED ALONGWITH NOTICE U/S. 142(1) DATED 16/8/2011 AND THE ASSESSEE WAS ASKED TO GIVE THE DETAILS BY 30.8.2011. HOWEVER, THE ASSESSEE HAS SUBMITTED THE SO CALLED LIST OF TRANSPORT CHARGES PAID ONLY ON 19.10.2011, HENCE, THE PLEA OF THE ASSESSEE THAT INFORMATION WAS ASKED ON A VERY SHORT NOTICE IS NOT CORRECT. IN ANY CASE, IT IS THE ASSESSEE WHO HAS CLAIMED THAT AN EXPENDITURE OF RS.1,68,99, 010/ - HAS BEEN INCURRED TOWARDS TRANSPORTATION CHARGES AND THAT NO TDS WAS LIABLE TO BE DEDUCTED ON THE SAME AND HENCE IT IS THE RESPONSIBILITY OF THE ASSESSEE TO FURNISH FULL AND COMPLETE DETAILS SO AS TO ENABLE THE ASSESSING OFFICE R TO COMPLETE THE ASSES SMENT AFTER VERIFYING THE CORRECTNESS OF THE CLAIM. IN THE INSTANT CASE, THE ASSESSEE HAS FILED ONLY A LIST OF MORE THAN 1200 SO CALLED TRUCK DRIVERS. THE SAID LIST DOES NOT SHOW FULL DETAILS SUCH AS THE FULL NAME AND ADDRESSES OF THE SO CALLED TRUCK DRIVE RS, HENCE IT IS NOT POSSIBLE FOR THE A.O TO VERIFY THE SAME. THE CONTENTION OF THE ASSESSEE IN PARA 1.D THAT NO TRUCK DRIVER HAS BEEN PAID RS . 20000 OR MORE IN ANY DAY IS ALSO NOT BORNE OUT OF FACTS. FIRST OF ALL, THE LIST GIVEN BY THE ASSESSEE DOES NOT SH OW FULL DETAILS AS STATED ABOVE, HENCE VERIFICATION OF THE CONTENTS THERE IS NOT POSSIBLE. MOREOVER, AS NARRATED IN THE SHOW CAUSE NOTICE DATED 12.12.2011 REPRODUCED ABOVE, THE LIST SUFFERS FROM VARIOUS APPARENT DEFICIENCIES SUCH AS SAME NAME REPEATED MANY TIMES, PAN NUMBER GIVEN BY THE ASSESSEE DID NOT TALLY IN SOME CASE AND THE VEHICLE NUMBER GIVEN BY THE ASSESSEE PERTAINS TO TWO WHEELERS, CARS ETC IN SOME CASES AS VERIFIED FROM LOCAL RTO. HENCE THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED. THE CONTENTI ON OF THE ASSESSEE IN PARA 1.E ALSO CANNOT BE ACCEPTED SINCE THE ASSESSEE HAS NOT PRODUCED ANY PROOF OF HAVING SUBMITTED THE SO CALLED FORM N O15 - I IN THE OFFICE OF THE CI T - V, PUNE . 15 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 THE CONTENTION OF THE ASSESSEE IN PARA 1.F, ALSO CANNOT BE ACCEPTED BECAUS E THE DETAILS I.E. LIST OF DRIVERS WERE GIVEN BY THE ASSESSEE AND THE ASSESSEE HAS GIVEN PANS AGAINST EACH AND EVERY NAME IN THE LIST. AS STATED ABOVE, CERTAIN NAMES WERE REPEATED AND THE PANS GIVEN DID NOT MATCH WITH THE NAME AND THE ASSESSSEE'S PLEA THAT SOME MISTAKE MIGHT HAVE BEEN HAPPENED WHILE PREPARING THE LIST IS AN AFTERTHOUGHT ALSO CANNOT BE ACCEPTED. THE CONTENTION OF THE ASSESSEE IN PARA 1. G , 1.H AND 1.I ARE ALSO MORE OR LESS SIMILAR AND REPETITIVE IN NATURE. IN ANY CASE, THE ASSESSEE HAS FAILE D TO ESTABLISH THE CORRECTNESS AND GENUINENESS OF THE CLAIM AND HENCE THESE ARGUMENTS CAN ALSO BE NOT ACCEPTED. 22. FURTHER VIDE QUESTIONNAIRE DATED 16.8.2011 THE ASSESSEE WAS ASKED TO PRODUCE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS IN SUPPORT OF VARIOUS EX PENSES / CLAIM MADE. HOWEVER, THE ASSESSEE ATTENDED ON 26.12.2011 AND STATED THAT BOOKS OF ACCOUNTS ARE AVAILABLE IN HIS LAPTOP ON TALLY PACKAGE. HE HAS ALSO GIVEN A HARD COPY OF LEDGER ACCOUNT OF 'TRANSPORT CHARGES'. HOWEVER, THE SAID LEDGER ACCOUNT IS A SINGLE LEDGER FOR ALL THE TRA NSPORT CHARGES. AS NOTED IN THE ORDER SHEET ENTRY DATED 26.12.2011, THE AR STATED THAT NO INDIVIDUAL / PARTYWISE LEDGER ACCOUNT HAS BEEN MAINTAINED IN RESPECT OF TRANSPORT CHARGES CLAIMED. IN THE ABSENCE OF PARTYWISE LEDGER ACC OUNT, IN RESPECT OF TRANSPORT CHARGES PAID THE CLAIM OF THE ASSESSEE THAT THE TRANSPORT CHARGES PAID TO ANY INDIVIDUAL TRUCK OWNER DID NOT EXCEED R S .20000 / - ON ANY SINGLE DAY CANNOT BE VERIFIED. THE CONSOLIDATED SO CALLED LEDGER ACCOUNT SUBMITTED BY THE AR DO NOT REFLECT ANY NAME OF THE PARTY AND IT ONLY REFLECTS DATEWISE PAYMENTS MADE IN CASH. IN ANY CASE, THE LIST GIVEN BY THE ASSESSE E IS INCOMPLETE AND ON GOING THOUGH THE LIST IT IS SEEN THAT NAMES HAVE BEEN REPEATED AND TAKING THIS ASPECT INTO CONSIDER ATION, THE AMOUNT INVOLVED EXCEED RS. 50000/ - IN AGGREGATE IN RESPECT OF VARIOUS INDIVIDUAL CASE(AFTER TAKING THE REPEATED NAMES IN TO CONSIDERATION) AND HENCE THE ASSESSEE WAS LIABLE TO MAKE TDS . 23. IT IS ALSO PERTINENT TO NOTE HERE THAT THE LIST GIVEN BY THE ASSESSEE 23. IT IS ALSO PERTINENT TO NOTE HERE THAT THE LIST GIVEN BY THE ASSESSEE CONTAINS VARIOUS TRUCK NUMBERS WHICH ARE MOSTLY OF OUTSIDE STATES OF MAHARASHTRA AND ONL Y WITH THE SINGLE NAME AND TRUCK NUMBER ETC. VERIFICATION OF THE CLAIM WITH THE PARTIES LOCATED OUTSIDE MAHARASHTRA IS NOT POSSIBLE AND MORE OVER AS STA TED ABOVE ENQUIRIES MADE WITH LOCAL RTOS AND LOCAL AREA RESULTED IN CERTAIN DISCREPANCIES AND HENCE, IT IS THE DUTY OF THE ASSESSEE TO ESTABLISH THE CORRECTNESS AND GENUINENESS OF THE CLAI M WHICH THE ASSESSEE FAILED TO DO SO. 24. IT IS ALSO PERTINENT TO M ENTION HERE THAT AS PER THE PAN NUMBERS GIVEN B Y THE ASSESSEE, THE ADDRESS OF SUCH PAN HOLDERS WERE FOUND OUT FROM THE 'SYSTEM AN INFORMATION U/S. 133(6) OF THE I.T ACT, 1961 WAS SOUGHT FOR. HOWEVER, NONE OF TH E PARTIES HAVE REPLIED TILL NOW EXCEPT IN THE CASE OF SHRI POPAT JAGANNATH SHEND E. HOWEVER, THE SAID JAGANNATH SHENDE VIDE HIS REPLY DATED 21.12.2011 HAS STATED AS UNDER: ' I, MR. POPAT JAGANNATH SHENDE, HEREBY REQUEST TO THE CONCE RNED AUTHORITY THAT I AM OWNER OF 2 TRUCKS AND HAVING INCOME FROM TRUC K BUSINESS HAVE NOT KEPT ANY BOOKS OF ACCOUNTS DURING THE FINANCIAL Y E AR 1.4.2008 31.3.2009. THAT MR. DEEPAK GOPINATH JADHAV IS UNKNOWN PERSON TO ME AND DONT HAVE ANY BUSINESS RELATION WITH HIM. 24. THE MAIN OBJECTION OF THE ASSESSING OFFICER WAS THAT SINCE THE ASSESSEE HAS FAILED TO KEEP INDIVIDUAL TRUCK - WISE / INDIVIDUAL OWNER - WISE DETAILS OF TRANSPORTATION, IT WAS NOT POSSIBLE TO IDENTIFY WHETHER THE ASSESSEE IN A PARTICULAR YEAR HAD PAID 16 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 TRANSPORTATION CHARGES WITHIN RS.50,000/ - ESPECIALLY IN VIEW O F REPETITION OF NAMES AND TRUCK NUMBERS IN THE LIST FURNISHED BY THE ASSESSEE. THE ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CLAIM THAT IT HAD NOT PAID THE TRANSPORTATION CHARGES EXCEEDING RS.20,000/ - ON EACH DAY AND ALSO THE AGGREGATE PAYMENT TO A PERSO N DID NOT EXCEED RS.50,000/ - . THE ASSESSEE CANNOT SHY AWAY FROM FURNISHING THE REQUISITE DATA IN VIEW OF THE MULTIPLICITY OF TRANSACTIONS . I N ORDER TO CLAIM BENEFIT OF THE SECTION, NECESSARY DETAILS ARE TO BE FURNISHED. IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ASSESSING OFFICER HAD COLLATED INFORMATION AND CARRIED OUT THE VERIFICATION EXERCISE, WHICH WAS AGAINST THE ASSESSEE, THE SAME SHOULD HAVE BEEN CONFRONTED TO THE ASSESSEE BEFORE TAKING ANY ADVERSE VIEW AGAINST THE ASSESS EE. FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER BEFORE USING ANY INFORMATION AGAINST THE ASSESSEE, SHOULD HAVE CONFRONTED THE ASSESSEE WITH THE COMPLETE INFORMATION IN ORDER TO ENABLE HIM TO MEE T / CORRECT DEFECTS IN THE VERIFICATION EXERCISE CARRIED ON. THOUGH THE PROPOSITION OFFERED BY THE ASSESSEE THAT IN CASE THE INDIVIDUAL ON. THOUGH THE PROPOSITION OFFERED BY THE ASSESSEE THAT IN CASE THE INDIVIDUAL PAYMENTS ARE LESS THAN RS.20,000/ - AND AGGREGATE PAYMENTS ARE LESS THAN RS.50,000/ - , NO TAX IS TO BE TAXED AT SOURCE, IS ACCEPTABLE, BUT ENTIRE ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CASE AND ESPECIALLY IN VIEW OF THE VERIFICATION EXERCISE AND THE ORDER OF ASSESSING OFFICER, WHERE IT HAS BEEN POINTED OUT THAT IN SOME CASES, THE TRUCK OWNERS OWNED MORE THAN 4 TRUCKS AND THE TOTAL PAYMENT TO THE SAID PERSONS W ERE FAR IN EXCESS OF RS.50,000/ - , DURING THE YEAR . W E FIND NO MERIT IN THE PLEA OF THE ASSESSEE THAT NO DISALLOWANCE CAN BE MADE UNDER SECTION 40( A )(I A ) OF THE ACT. THE ASSESSEE CLAIMS THAT IS HAD MADE PAYMENTS TO I NDIVIDUAL TRUCK DRIVERS, BUT THE INDIVIDUAL TRUCK DRIVERS ARE NOT THE OWNERS OF TRUCKS IN CERTAIN CASES AND THOUGH THE TRUCKS ARE DRIVEN BY DIFFERENT TRUCK DRIVERS, BUT CUMULATIVELY THEY BELONGED TO ONE OWNER I.E. IN THE CASE OF SHRI RAJKUMAR R DHOTRE (PAN AJXPD 5775B) AND HE WAS OWNER OF FOUR VEHICLES AND THE TOTAL TRANSPORTATION CHARGES PAID IN RESPECT OF THE SAID FOUR VEHICLES WAS RS.2,52,180/ - . IN SUCH CASES, THE 17 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 PROVISIONS OF SECTION 194C OF THE ACT WERE SQUARELY ATTRACTED AND HENCE, WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE. SECONDLY, IN RESPECT OF SOME OF TRUCK NUMBERS GIVEN BY THE ASSESSEE, THE SAME RELATED TO CERTAIN CARS AND SCOOTERS. THE PAYMENTS SHOWN AGAINST SUCH NUMBERS CANNOT BE ALLOWED AS A DEDUCTION, WHERE THE ASSESSEE HAS FAILED TO F URNISH THE INFORMATION. SIMILARLY, THE VERIFICATION EXERCISE CARRIED OUT BY THE ASSESSING OFFICER REVEALED THAT THE PAN NUMBERS GIVEN BY THE ASSESSEE DID NOT MATCH WITH THE PAN NUMBERS AVAILABLE IN THE COMPUTER SYSTEM AND IN VIEW OF THE SAID DISCREPANCIES , ONUS WAS UPON THE ASSESSEE TO EXPLAIN THE SAME AND TO ESTABLISH ITS CASE OF HAVING INDIVIDUALLY PAID THE AMOUNTS TO DIFFERENT PEOPLE OF AMOUNTS NOT EXCEEDING RS.50,000/ - IN A YEAR . W HERE THE ASSESSEE FAILS TO DISCHARGE THE ONUS CAST UPON HIM, THEN NO BE NEFIT OF PROVISIONS OF THE ACT CAN BE ALLOWED TO THE ASSESSEE. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, WE DEEM IT FIT TO RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER, WHO SHALL CONFRONT THE ASSESSEE WITH THE RESULTS OF VERIF ICATION EXERCISE CARRIED OUT AND AS REFERRED IN THE ASSESSMENT ORDER AND AFTER CONSIDERING THE REPLY CARRIED OUT AND AS REFERRED IN THE ASSESSMENT ORDER AND AFTER CONSIDERING THE REPLY OF ASSESSEE, TO DECIDE THE ISSUE AS PER FACT S AND IN ACCORDANCE WITH LAW. 2 5 . ANOTHER ASPECT OF THE ISSUE IS THE FORM NO.15I SUBMITTED BY THE ASSESSEE I N RESPECT OF CERTAIN TRANSPORT ERS. WE FIND THAT THOUGH THE ASSESSEE HAD RECEIVED FORM NO.15I FROM THE TRANSPORTERS FOR NON - DEDUCTION OF TAX AT SOURCE, BUT THE SAME W ERE NOT FILED BEFORE THE COMMISSIONER. THOUGH THE REQUIREMENT OF THE ACT IS THAT THE SAID FORM NO.15I SHOULD BE FILED BEFORE THE C OMMISSIONER AND IN SUCH CASES, THERE IS NO REQUIREMENT FOR DEDUCTION OF TAX AT SOURCE . W E HOLD THAT EVEN WHERE THE ASSESSEE HAS FAILED TO FURNISH THE SAID FORM NO.15I BEFORE THE C OMMISSIONER WITHIN THE STIPULATED T IME, NO DISALLOWANCE COULD BE MADE UNDER SECTION 40(A)(IA) OF THE ACT, IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF GUJARAT IN CIT VS. VALIBHAI KHANBHAI MANKAD (2013) 92 DTR (GUJ) 267 . THE ASSESSEE CLAIMS THAT IT HAD FURNISHED THE SAID FORM NO.15I WITH THE ASSESSING OFFICER AND HE HAS 18 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 FAILED TO CONSIDER THE SAME . W E DIRECT THE ASSESSING OFFICER TO VERIFY THE ASSESSMENT RECORDS AND ALLOW THE CLAIM IN LINE WITH THE DIRECTIONS OF HONBLE HIGH COURT OF GUJARAT. THE CROSS OBJECTION NOS.(A) AND (B) RAISED BY THE ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES AND (C) AND (D) ARE DISMISSED . 2 6 . THE ISSUE IN CROSS OBJECTION NOS.(E) AND (F) RAISED BY THE ASSESSEE IS AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER OF RS.5,00,000/ - UNDER SEC TION 68 OF THE ACT. 2 7 . BRIEFLY, IN THE FACTS OF THE ISSUE, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD SHOWN LIABILITY OF RS.5,00,000/ - IN ITS ACCOUNTS. WHEN THE ASSESSEE WAS ASKED TO GIVE EXPLANATION, THE ASSESSEE SUBMITTED THAT IT HAD RECEIVED GIFT OF RS.5,00,000/ - FROM HIS WIFE ON VARIOUS DATES. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE SINCE THE ASSESSEE HIMSELF HAD RECOGNIZED THE LIABILITY OF RS.5,00,000/ - . IN CASE THE ASSESSEE HAD RECEIVED GIFT FROM HIS WIFE, THE RE WAS NO QUESTION OF DECLARING ANY LIABILITY OF RS.5,00,000/ - . FURTHER, THE ASSESSING OFFICER ALSO DISMISSED THE CLAIM OF THE ASSESSEE SINCE THE CORRECTNESS AND GENUINENESS OF TRANSACTION COULD NOT BE ESTABLISHED BY THE ASSESSEE VIS - - VIS THE AMOUNT RECE IVED FROM HIS WIFE. 2 8 . THE CIT(A) UPHELD THE SAID ADDITION, AGAINST WHICH THE ASSESSEE HAS RAISED THE CROSS OBJECTION NOS.(E) AND (F). 2 9 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE GIFT RECEIVED BY THE ASSESSEE WAS FR OM HIS WIFE WHO IN TURN, HAD DECLARED THE SAME IN HER HANDS. HOWEVER, BY AN ERROR, THE ASSESSEE HAD RECOGNIZED THE SAID GIFT AS LIABILITY IN ITS HANDS. OUR ATTENTION WAS DRAWN TO THE PAPER BOOK FILED, UNDER WHICH THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE RETURN OF 19 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 INCOME FILED BY THE WIFE OF ASSESSEE AND ALSO THE BALANCE SHEET AS ON 31.03.2009, IN WHICH SHE HAD DECLARED THE GIFT TO HER HUSBAND. 30 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDERS OF AUTHORITIES BELOW AND POINTED OUT THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE CREDITWORTHINESS OF GIFT OF RS.5,00,000/ - CLAIMED TO BE GIVEN BY THE WIFE OF ASSESSEE, TO THE ASSESSEE AND FURTHER IN ANY CASE, THE ASSESSEE HAS NOT ACCEPTED THE SAI D GIFT AS IT H AS CLAIMED AS LIABILITY OF RS.5,00,000/ - . 3 1 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE CONCEPT OF RECEIVING GIFT FROM WIFE IS ACCEPTABLE. HOWEVER, ONUS IS UPON THE ASSESSEE, TO ESTABLISH THE IDENTITY OF THE PERSON AN D ALSO THE CREDITWORTHINESS OF THE PERSON GIVING THE GIFT. THE FIRST ASPECT OF THE ISSUE IS THAT THE GIFT RECEIVED BY ANY PERSON SHOULD BE IRREVOCABLE. HOWEVER , IN THE CASE OF THE ASSESSEE BEFORE US, THE SAID GIFT IF CLAIMED TO BE RECEIVED FROM HIS WIFE, HAS BEEN DECLARED AS A LIABILITY BY THE ASSESSEE , I N CASE THE AMOUNT IS LIABLE TO BE PAID BY THE RECIPIENT, THEN IT CANNOT BE HELD TO BE A GIFT RECEIVED BY THE RECIPIENT, SINCE THERE IS NO LIABILITY IN TRANSACTION OF GIFT. SECONDLY, ONUS IS UPON THE ASSE SSEE TO ESTABLISH THAT THE PERSON WHO HAD GIVEN THE SAID GIFT HAS THE CAPACITY TO GIVE THE GIFT. THE PERUSAL OF RETURN OF INCOME FILED BY THE WIFE OF THE ASSESSEE, COPIES OF WHICH ARE PLACED AT PAGES 22 TO 29 OF THE PAPER BOOK REFLECTS THAT FOR ASSESSMENT YEAR 2006 - 07, NET INCOME OF THE WIFE OF ASSESSEE WAS RS.1,20,650/ - , FOR ASSESSMENT YEAR 2007 - 08, IT WAS RS.1,25,040/ - AND FOR ASSESSMENT YEAR 2008 - 09 , IT WAS RS.1,43,350/ - . FOR THE INSTANT ASSESSMENT YEAR I.E. ASSESSMENT YEAR 2009 - 10 , THE TOTAL INCOME DE CLARED BY THE WIFE OF ASSESSEE WAS RS.1,57,478/ - AS AGAINST RECEI PTS FROM BUSINESS OF RS.4,32,680/ - . UNDOUBTEDLY, WIFE OF THE ASSESSEE HAD SHOWN THE GIFT OF RS.5,00,000/ - AND DEBITED TO HER CAPITAL ACCOUNT IN THE BALANCE SHEET, BUT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF THE SAID GIFT. LOOKING AT THE INCOME 20 ITA NO.17 94 /PN/201 2 CO NO. 5 8/PN/201 3 DECLARED BY THE WIFE OF ASSESSEE FROM YEAR TO YEAR, WE FIND NO MERIT IN THE CLAIM OF THE ASSESSEE AND REJECTING THE SAME, WE UPHOLD THE ADDITION OF RS.5,00,000/ - ON ACCOUNT OF TWO ASPECTS OF T HE ISSUE AS DISCUSSED ABOVE. THE CROSS OBJECTION NOS.(E) AND (F) RAISED BY THE ASSESSEE ARE THUS, DISMISSED. 3 2. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED AND THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 11 TH DAY OF SEPTEMBER , 2015. SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER PUNE ; D ATED : 11 TH SEPTEMBER , 2015. GCVSR / COPY OF THE ORDER IS FORWARDED TO : / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - V , PUNE ; 4. / THE CIT - V , PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE