Shri Shekar Chokalingam Madaliar, Ahmedabad V. The Income tax officer,Ward-9(4), Ahmedabad

CO 99/AHD/2013

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 9508 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S N DIVETIA
• Keywords: Additional evidence
• Section: 40A(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NOS.311 & 312/AHD/2013 A.Y. 2008-09 & 2009-10 THE ITO, WARD-9(4), AHMEDABAD. VS SHRI SHEKHAR CHOCKALINGAM MADALIAR (PROP. GANESH ROADLINES), 22, BANSIDHAR APARTMENT, B/H. DENA BANK, AMRAIWADI, AHMEDABAD. PAN: AHIPM 8556C (APPELLANT) (RESPONDENT) CO NOS.98 & 99/AHD/2013 A.YS. 2008-09 & 2009-10 SHRI SHEKHAR CHOCKALINGAM MADALIAR (PROP. GANESH ROADLINES), 22, BANSIDHAR APARTMENT, B/H. DENA BANK, AMRAIWADI, AHMEDABAD. PAN: AHIPM 8556C VS THE ITO, WARD-9(4), AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. ASSESSEE(S) BY : SHRI S.N. DIVETIA, A.R. / DATE OF HEARING : 26/05/2014 / DATE OF PRONOUNCEMENT: 30/05/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THESE TWO APPEALS FOR A.Y. 2008-09 AND 2009-10 HAVE BEEN FILED BY THE REVENUE AND THE ASSESSEE IN CROSS-OBJECTION ARISING FROM THE ORDERS OF LEARNED CIT(A)-XV, AHMEDABAD, BOTH DATED 30 TH NOVEMBER, ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 2 - 2012. ISSUE RAISED IN THE GROUNDS OF APPEAL BY THE REVENUE ARE IDENTICAL; HENCE, THESE APPEALS AND CROSS OBJECTIONS ARE CONSO LIDATED AND HEREBY DECIDED BY THIS COMMON ORDER. 2. FOR BOTH THE ASSESSMENT YEARS, GROUND NO.1 OF TH E REVENUE IS AS UNDER: THE LD. COMMISSIONER OF INCOME-TAX(APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF (RS.3, 72,34,228/- FOR A.Y. 2008- 09)& (RS.5,70,38,630/- FOR A.Y. 2009-10) MADE ON AC COUNT OF FREIGHT CHARGES U/S.40(A)(IA) OF THE ACT. 3. THE ASSESSEE IS IN TRANSPORT BUSINESS IN INDIVID UAL CAPACITY. IT WAS NOTED BY THE AO THAT THE ASSESSEE HAD DEBITED FREIG HT EXPENSES BUT FAILED TO DEDUCT THE TDS. IN COMPLIANCE OF SHOW CAUSE NOTI CE, THE ASSESSEE HAS GIVEN THE EXPLANATION AS UNDER: DURING THE YEAR, I HAVE SHOWN HIRECHARGES INCOME & EXPENDITURE OF RS.3,72,34,228/- ON DIRECT WORK AS PER USE OF OUR B UILTY. MY BUILTY ARE USED FOR TRANSPORTATION WORK, SO HIRECHARGES INCOME & EX PENDITURE SHOWN IN MAY AUDITED ACCOUNTS I SIMPLY EARNED COMMISSION ON SUCH TRANSACTION. HIRE CHARGE RECEIVED/PAID DIRECTLY TO TRUCK OWNER. STATE MENT REGARDING TDS DEDUCTED ON SUCH HIRECHARGES INCOME SUBMITTED. IN ANOTHER TYPE OF TRANSACTION MY BUILT WAS NOT USE D BUT MANAGE FOR TRANSPORTATION ON COMMISSION BASIS SO MEMO BOOK USE D FOR SUCH TRANSACTION. YOUR HONOUR HAS EXAMINED MY DETAILS REGARDING STATE MENT OF COMMISSION EARNED RS.5,70,300/- AS PER BUILTY USED AND MEMO BO OK. YOUR HONOUR HAS BEEN REQUESTED TO ACCEPT OUR INCOME & EXPENDITURE OF HIRECHARGES AS THE SAME ARE ACCOUNTED IN OUR BOOKS. AS PER SECTION 194-C OF THE ACT, TDS ON RS.3,72,34, 228/- HAS TO BE DEDUCTED AND PAID IN TIME AS PER LAW. BUT SECTION 194-C ALSO PROVIDED THAT NO TDS SHALL BE MADE DURING COURSE OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGE ON PRODUCTION OF AN DECLARATION TO THE PERSON EARNE D IN FORM NO.15-I, IF SUCH CONTRACTOR IS AN INDIVIDUAL WHO HAS NOT OWNED MORE THAN TWO GOODS CARRIAGES AT ANY TIME DURING THE PREVIOUS YEAR. YOUR HONOUR HAS EXAMINED THE CERTIFICATES RECEIVED IN FORM NO.15-I OF HIRECHARGES PAID TO VARIOUS INDIVIDUALS OF RS.3,72, 34,228/-. AS PER LAW I AM ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 3 - NOT LIABLE FOR DEDUCTION OF TDS ON SUCH AMOUNT. AIM OF TDS DEDUCTION IS GENERATE INCOME-TAX PAYERS. 4. HOWEVER, THE AO WAS NOT CONVINCED AND HELD THAT IN ACCORDANCE OF THE PROVISIONS OF SECTION 40(A)(IA) THE ASSESSEE HAD DEFAULTED BY NOT DEDUCTING THE TDS; HENCE, THE EXPENDITURE WAS DISAL LOWED. 5. BEING AGGRIEVED THE MATTER WAS CARRIED BEFORE TH E FIRST APPELLATE AUTHORITY. LEARNED CIT(A) HAS DISCUSSED THE ISSUE A T LENGTH. A REMAND REPORT HAS ALSO BEEN CALLED FOR FROM THE AO AND THE ASSESSEES EXPLANATION HAS ALSO BEEN FORWARDED FOR REMARKS. TH E EXPLANATION OF THE ASSESSEE IN RESPECT OF THE NATURE OF BUSINESS THE A SSESSEE HAS SUBMITTED AS FOLLOWS: IN ORDER TO APPRECIATE THE ISSUE INVOLVED IN THIS APPEAL, IT WOULD BE USEFUL TO POINT OUT THE NATURE OF BUSINESS CARRIED OUT BY THE APPELLANT AND ACCOUNTING PRACTICE FOLLOWED BY HIM. THE APPELLANT IS CARRYING ON BUSINESS AS TRANSPORT COMMISSION AGENT BY ARRANGING TRANSPORT VEHICLES AN D EARN SIMPLY COMMISSION, SAY OF RS.300/- PER TRUCK WHICH IS CRED ITED TO BROKERAGE/COMMISSION A/C. HOWEVER, THERE ARE DIFFER ENT SOLUTIONS IN THIS BUSINESS ON ACCOUNT OF THE MODE OF RECEIPT OF FREIG HT AND THE ISSUANCE OF BUILTY. (I) THE FIRST SITUATION IS WHEN THE APPELLA NT ISSUES HIS WON BUILTY, THE AMOUNT OF FREIGHT IS CREDITED TO FREIGHT INCOME AND DEBITED TO FREIGHT RECEIVABLE ACCOUNT WITH THE SAME VALUE, WHEREAS THE BROKERAGE OF RS.300 IS ACCOUNTED AS ABOVE. IN THIS SITUATION, THE PAYMENT OF FREIGHT CHARGES WOULD BE RECEIVED BY CHEQUE. (II) THE SECOND SITUATION IS WH EN THE BUILTY IS ISSUED BY THE APPELLANT AND FREIGHT IS RECEIVED IN CASH. IN THIS CASE FREIGHT INCOME IS CREDITED AND LORRY FREIGHT EXPS IS DEBITED WITH THE SAME AMOUNT. THEN A JOURNAL ENTRY IS PASSED FOR THE SAME AMOUNT OF DEBI TING LORRY FREIGHT EXPS A/C AND CREDITING LORRY HIRE PAYABLE A/C. IN SHORT, IN BOTH THE SITUATIONS, THE FREIGHT AMOUNT IS NEITHER INCOME NOR EXPENSE OF THE APPELLANT AND THE SAID ACCOUNTS ARE SQUARED UP WITH THE APPELLANT EARNING COMMISSIONS ONLY. TO ILLUSTRATE THE AFORESAID SITUATIONS IF THE BOOKS OF ACCOUNT ARE EXAMINED, SAY ON 20.08.2007. 5.1 THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE FO LLOWING ORDERS: (I) CIT VS. UNITED RICE LAND LTD. (217 CTR 332 (PH) (II) RAKSHIT TRANSPORT VS. ACIT (DATED 11.9.2009) (KOL.) (III) MRS. KAVITA CHUG VS ITO (45 DTR 146) (KOL.) ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 4 - (IV) MYTHRI TRANSPORT CORP. VS. ACIT (124 TTJ 970) (VISK) 5.2 AFTER CONSIDERING THE FACTS AS WELL AS LEGAL PO SITION, LEARNED CIT(A) HAS GRANTED RELIEF AS PER THE CONCLUDING PAR A AS UNDER: IT IS THEREFORE, THE APPELLANTS CONTENTION HAS FO RCE THAT EVEN IF HE HAS NOT FILED FORM NO.15-J, HE IS EXCLUDED FROM THE RIGORS OF DISALLOWANCE U/S. 40(A)(IA) OF THE ACT. THE AOS CONTENTION THAT APPE LLANT TILL DATE NOT MAINTAINED & GIVEN DETAILS PARTY WISE FOR PROPER JU STIFICATION OF FORM 15-I HAD NO FORCE SINCE AO HAD ALREADY EXAMINED SUCH FOR M IN REMAND REPORT. WITH DUE RESPECT, EVEN IF SUCH DEFAULT IS TAKEN AGA INST APPELLANT AND SECTION 40(A)(IA) OF THE ACT IS APPLIED THEN AS PER HONBLE SPECIAL BENCH OF VISHAKHAPATNAM ORDER IN THE CASE OF MARILYN SHIPPIN G & TRANSPORT SUCH DISALLOWANCE CANNOT BE MORE THAN RS.2,87,620/-. IN RESPECT OF BALANCE EXPENDITURE OF RS.13,72,450/-. I AM INCLINED WITH T HE CONTENTION OF APPELLANT THAT EACH GR HAS TO BE TREATED AS SINGLE CONTRACT. HONBLE ITAT AHMEDABAD IN THE CASE OF LEADER TRANSPORT CO. 6 ITR (TRIB.) 2 29 AHMEDABAD THOUGH ON THE ISSUE RELATED TO SECTION 40A(3) OF THE ACT, FOL LOWING THE HONBLE ORISSA HIGH COURT JUDGMENT IN THE CASE OF ALOO SUPLY CO., 121 ITR 680 FOLLOWED THIS PRINCIPLE. ALTERNATIVELY, THE DISALLOWANCE ARE LIMI TED TO AMOUNT REMAINED PAYABLE OUT OF SUCH PAYMENTS. IT IS THEREFORE IN TO TALITY OF FACTS, CASE LAWS RELIED ON AND ANALYSIS AS DISCUSSED ABOVE, THERE IS NO JUSTIFICATION FOR ANY DISALLOWANCE U/S. 40(A)(IA) OF THE ACT AND ADDITION SO MADE BY AO. THE APPELLANT IN HIS REPLY TO AO DURING ASTT. SUBMITTED ABOUT COLLECTION OF FORM 15-I FROM THE TUCK OWNER THEREFORE THERE IS NO ISSU E IN REFERENCE OT ADMISSION OF ADDITIONAL EVIDENCES. OTHERWISE ALSO SUCH EVIDEN CES ARE CONTEMPORANEOUS AND CRUCIAL TO THE ISSUE UNDER DISPUTE CAN BE VERIF IED BY MY OFFICE FOR ITS MERIT AND CREDIBILITY. SINCE THE AO OBJECTED FOR ADMISSIO N OF SUCH EVIDENCE, TO SATISFY THE OBJECTION, DISCUSSED IN DETAIL IN EARLI ER PARA THE SAME ARE ADMITTED AND CONSIDERED TO ADJUDICATE THE ISSUE IN DISPUTE I N JUDICIOUS MANNER. THE AO IS THEREFORE DIRECTED TO ALLOW SUCH EXPENSES AND DE LETE THE ADDITION SO MADE OF RS.3,72,34,228/- THE APPELLANT GETS RELIEF ACCOR DINGLY. 6. WE HAVE HEARD BOTH THE SIDES. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW FOR BOTH THE YEAR. WE FOUND THAT LEARNED CIT(A) HAS DISCUSSED AN ORDER OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF VALIBHAI KHANBHAI MANKAD, 28 TAXMANN.COM, 119 (GUJA RAT) AND REPRODUCED THE RELEVANT PORTION. FOR READY REFE RENCE, RELEVANT PORTIONS ARE EXTRACTED BELOW: 2.3 THE ASSESSEE CARRIED THE MATTER IN APPEAL. BEF ORE CIT (APPEALS), HE DID PRODUCE THE REQUISITE FORM NO.15J. THE APPEL LATE AUTHORITY, ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 5 - HOWEVER, DID NOT ACCEPT THE ASSESSEE'S APPEAL, UPON WHICH, THE ASSESSEE APPROACHED THE TRIBUNAL. THE TRIBUNAL, BY THE IMPUG NED JUDGMENT, REVERSED THE VIEW OF THE REVENUE AUTHORITIES AND HE LD THAT DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT WAS NOT JUSTIFIE D. THE TRIBUNAL RELIED ON ITS EARLIER DECISION IN THE CASE OF ACIT V. SHRE E PRAMUKH TRANSPORT CO. LTD. [IT APPEAL NO. 1717 (AHD.) OF 2010, DATED 31-8-2010]. THE TRIBUNAL ALSO GAVE ITS OWN INDEPENDENT FINDINGS AND CONCLUSIONS. THE TRIBUNAL WAS OF THE VIEW THAT THE REQUIREMENT OF FU RNISHING FORM NO.15J WAS NOT RELATED TO THE LIABILITY TO DEDUCT TAX AT S OURCE. ANY INFRACTION OF SUCH REQUIREMENT WOULD NOT RESULT INTO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. IT IS THIS VIEW OF THE TRIBUN AL, WHICH THE REVENUE HAS CHALLENGED BEFORE US IN THE PRESENT TAX APPEAL. 7. THE EXCLUSION PROVIDED IN SUB-SECTION (3) OF SEC TION 194C FROM THE LIABILITY TO DEDUCT TAX AT SOURCE UNDER SUB-SECTION (2) WOULD THUS BE COMPLETE THE MOMENT THE REQUIREMENTS CONTAINED THER EIN ARE SATISFIED. SUCH REQUIREMENTS, PRINCIPALLY, ARE THAT THE SUB-CO NTRACTOR, RECIPIENT OF THE PAYMENT PRODUCES A NECESSARY DECLARATION IN THE PRESCRIBED FORMAT AND FURTHER THAT SUCH SUB-CONTRACTOR DOES NOT OWN M ORE THAN TWO GOODS CARRIAGES DURING THE ENTIRE PREVIOUS YEAR. THE MOME NT, SUCH REQUIREMENTS ARE FULFILLED, THE LIABILITY OF THE ASSESSEE TO DEDUCT TAX ON THE PAYMENTS MADE OR TO B E MADE TO SUCH SUB- CONTRACTORS WOULD CEASE. IN FACT HE WOULD HAVE NO A UTHORITY TO MAKE ANY SUCH DEDUCTION. 8. THE LATER PORTION OF SUB-SECTION (3) WHICH FOLLO W THE FURTHER PROVISO IS A REQUIREMENT WHICH WOULD ARISE AT A MUCH LATER POINT OF TIME. SUCH REQUIREMENT IS THAT THE PERSON RESPONSIBLE FOR PAYI NG SUCH SUM TO THE SUBCONTRACTOR HAS TO FURNISH SUCH PARTICULARS AS PR ESCRIBED. WE MAY NOTICE THAT UNDER RULE 29D OF THE RULES, SUCH DECLA RATION HAS TO BE MADE BY THE END OF JUNE OF THE NEXT ACCOUNTING YEAR IN QUESTION. 9. IN OUR VIEW, THEREFORE, ONCE THE CONDITIONS OF F URTHER PROVISO OF SECTION 194C(3) ARE SATISFIED, THE LIABILITY OF THE PAYEE TO DEDUCT TAX AT SOURCE WOULD CEASE. THE REQUIREMENT OF SUCH PAYEE T O FURNISH DETAILS TO THE INCOME TAX AUTHORITY IN THE PRESCRIBED FORM WIT HIN PRESCRIBED TIME WOULD ARISE LATER AND ANY INFRACTION IN SUCH A REQU IREMENT WOULD NOT MAKE THE REQUIREMENT OF DEDUCTION AT SOURCE APPLICA BLE UNDER SUB- SECTION (2) OF SECTION 194C OF THE ACT. IN OUR VIEW , THEREFORE, THE TRIBUNAL WAS PERFECTLY JUSTIFIED IN TAKING THE VIEW IN THE IMPUGNED JUDGMENT. IT MAY BE THAT FAILURE TO COMPLY SUCH REQ UIREMENT BY THE PAYEE MAY RESULT INTO SOME OTHER ADVERSE CONSEQUENC ES IF SO PROVIDED UNDER THE ACT. HOWEVER, FULFILMENT OF SUCH REQUIREM ENT CANNOT BE LINKED TO THE DECLARATION OF TAX AT SOURCE. ANY SUCH FAILU RE THEREFORE CANNOT BE ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 6 - VISUALIZED BY ADVERSE CONSEQUENCES PROVIDED UNDER S ECTION 40(A)(IA) OF THE ACT. 6.1 AS PER THE PROVISIONS OF SECTION 194C ANY PERSO N RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK WHICH INCLUDES CARRIAGE OF GOODS BY ANY MODE OF TRANSPORT, IN PURS UANCE OF CONTRACT THEN AT THE TIME OF CREDIT OF SUCH SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF ANY CASH; SHALL DEDUCTED AN AMOUNT AS PRESCRIBED. SUB SECTION 5 OF SECTION 194C PRESCRIBE S THAT NO DEDUCTION SHALL BE MADE FROM THE AMOUNT OF ANY SUM CREDITED O R PAID IF SUCH SUM DOES NOT EXIST RS.20,000/-. IT IS FURTHER PROVIDED THAT WHERE THE AGGREGATE OF THE AMOUNTS OF SUCH SUM CREDITED OR PAID EXCEEDS RS.50,000/- THE PERSON RESPONSIBLE FOR PAYING SUCH SUM SHALL BE LIA BLE TO DEDUCT INCOME TAX UNDER THE SECTION. IN SUB SECTION 3 OF SECTION 194C, IT WAS ALSO PROVIDED AS UNDER: PROVIDED FURTHER THAT NO DEDUCTION SHALL BE MADE U NDER SUB-SECTION (2), FROM THE AMOUNT OF ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID DURING THE PREVIOUS YEAR TO THE ACCOUNT OF THE SUB-CONTRACTOR DURING THE COURSE OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGES, ON PRODUCTION OF A DECLARATION TO THE PE RSON CONCERNED PAYING OR CREDITING SUCH SUM, IN THE PRESCRIBED OF A DECLARATION TO THE PERSON CONCERNED PAYING OR CREDITING SUCH SUM, IN T HE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND WITHIN SU CH TIME AS MAY BE PRESCRIBED, IF SUCH SUB-CONTRACTOR IS AN INDIVIDUAL WHO HAS NOT OWNED MORE THAN TWO GOODS CARRIAGES AT ANY TIME DURING TH E PREVIOUS YEAR. 6.2 WE, THEREFORE, ON THE SHORT ISSUE THAT IN A SIT UATION WHEN ACCEPTED FACTUAL POSITION WAS THAT THE ASSESSEE HAD COLLECTE D FORM15-I FROM DIFFERENT TRUCK OWNERS AND THE LIST WAS FURNISHED B EFORE THE LOWER AUTHORITIES FOR AN AMOUNT TOTALING RS.3,58,61,008/- WHICH WAS DULY ACKNOWLEDGED BY THE AO AS WELL IN THE ASSESSMENT OR DER THEN MERELY ON THE GROUND THAT THE ASSESSEE HAD FAILED TO SUBMIT F ORM 15-J AS PRESCRIBED ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 7 - THEN ACCORDING TO US THE ISSUE IS DIRECTLY COVERED BY THE AFORECITED DECISION OF HONBLE GUJARAT HIGH COURT. 6.3 UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANC ES OF THE CASE, WE HEREBY CONFIRM THE FACTUAL AS WELL AS LEGAL FINDING S OF LEARNED CIT(A). RESULTANTLY, THIS GROUND OF THE REVENUE IS HEREBY D ISMISSED. 7. GROUND NO.2 FOR THE BOTH THE YEARS READ AS UNDER : THE LD. COMMISSIONER OF INCOME-TAX(APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF (RS.23 ,98,280/- FOR A.Y 2008-09) AND (RS.6,16,800/- FOR A.Y. 2009-10) OUT OF TOTAL A DDITION OF RS.24,13,280/- FOR A.Y.2008-09) AND (RS.6,23,499/- FOR A.Y.2009-10 ) MADE ON ACCOUNT OF UNDISCLOSED RECEIPT. 8. THE OBSERVATION OF THE AO WAS THAT ON VERIFICATI ON OF FREIGHT MEMO, BILLS AND DETAILS IT WAS NOTICED THAT THE ASS ESSEE HAD NOT SHOWN THE RECEIPT FROM VARIOUS PARTIES. THE CLAIM OF THE ASSE SSEE WAS THAT ONLY COMMISSION WAS RECEIVED. HOWEVER, THE AO WAS NOT CO NVINCED AND TAXED THE AMOUNT ON THE GROUND THAT THE IMPUGNED AM OUNT WAS NOT DISCLOSED AS INCOME BY THE ASSESSEE. 9 WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPE LLATE AUTHORITY, PART RELIEF WAS GRANTED AS UNDER: I AM NOT INCLINED TO ACCEPT THE CONTENTION OF APPE LLANT THAT HE HAS NOTHING TO DO WITH THE RECEIPTS REFLECTED IN SUCH I TS DETAIL AND EVIDENCES IN THE FORM OF UNRECORDED ADVANCES MADE T O TRUCK OWNER AS REFLECTED FROM TRANSFER MEMO. THE APPELLANT WAS DUL LY CONFRONTED WITH THIS FACT AND HE DO ADMITTED IN ASSTT. PROCEEDINGS ABOUT SUCH DISCREPANCY. HOWEVER, I AM INCLINED TO ACCEPT THE C ONTENTION OF APPELLANT THAT ENTIRE RECEIPT CANNOT BE TREATED HIS INCOME AS PER SETTLED LEGAL PREPOSITION. IT IS ONLY THE INCOME COMPONENT OUT OF IT WHICH CAN BE LEGALLY SAID TO BE APPELLANTS UNDECLARED AND UNDIS CLOSED INCOME. I AM ALSO INCLINED WITH THE CONTENTION OF THE APPELLANT THAT TDS SO DEDUCTED ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 8 - OUT OF SUCH RECEIPT AS APPEARING IN ITS DETAILS HAS TO BE GIVEN CREDIT SINCE THE SAME WAS NOT CLAIMED BY APPELLANT AND COR RESPONDING INCOME IS IF INCLUDED IN TOTAL INCOME. THE SAME CREDIT HAS TO BE GIVEN. IT IS THEREFORE THE APPELLANTS CONTENTION IS PARTLY ACCE PTED. AS FAR AS INCOME COMPUTATION OUT OF SUCH RECEIPT IS CONCERNED, THE A PPELLANT HIMSELF DURING THE PREVIOUS YEAR SHOWN COMMISSION/BROKERAGE INCOME OF RS.5,70,300/- OUT OF TOTAL FREIGHT RECEIPT OF RS.3, 72,34,228/- I.E. 0.6%, THEREFORE, CONSIDERING THE FACT THAT EXPENDITURE RE LATED TO THESE UNDISCLOSED RECEIPT HAD ALREADY BEEN DEBITED AND CL AIMED BY APPELLANT, 0.6% OF TOTAL SUCH RECEIPT OF RS.24,13,280/- I.E. R S.14,479.68/- SAY RS.15,000/- CAN BE TREATED AS APPELLANTS UNDISCLOS ED INCOME. THE AO IS THEREFORE DIRECTED TO DELETE THE BALANCE ADDITIO N OF RS.23,98,280/- (2413280 15000). THE APPELLANT GETS RELIEF ACCORD INGLY. 9.1 ON THE SAME LINES FOR A.Y. 2009-10, LEARNED CIT (A) HAS GRANTED RELIEF OF RS.6,16,800/- AND THE BALANCE RS.6,700/- WAS UPHELD AS UNDISCLOSED INCOME OF THE ASSESSEE. 10. WITH THE ABOVE BRIEF FACTUAL BACKGROUND, WE HAV E HEARD BOTH THE SIDES. UNDER THE TOTALITY OF THE FACTS AND CIRCUMST ANCES OF THE CASE AND CONSIDERING THE NATURE OF BUSINESS OF THE ASSESSEE, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF LEARNED CIT(A), THE SAME ARE HEREBY CONFIRM. RESULTANTLY, THIS GROUND OF THE REVENUE AS WELL IS HEREBY DISMISSED. 9. FOR THE BOTH THE YEARS THE ASSESSEE-RESPONDENT H AS FILED CROSS OBJECTION CHALLENGING ONE OF THE FINDINGS OF LEARNE D CIT(A) THAT THE PROVISIONS OF SECTION 194C WERE APPLICABLE ON THE A SSESSEE. HOWEVER, LEARNED AR, MR. S.N. DIVETIA HAS EXPRESSED DURING T HE COURSE OF HEARING THAT IN A SITUATION IF THE ASSESSEE IS ENTITLED FOR RELIEF ON THE ALTERNATE GROUND DECIDED IN ASSESSEES FAVOUR BY LEARNED CIT( A) THEN THIS ISSUE NEED NOT TO BE PRESSED. CONSIDERING THE VIEW TAKEN BY US IN ABOVE ITA NOS.311 & 312/AHD/2013 & CO NOS.98 & 99/AHD/201 3 ITO AHMEDABAD VS. SHRI SHEKHAR CHOCKALINGAM MADALIA R A.YS.2008-09 & 2009-10 - 9 - PARAGRAPHS, WE FIND NO MERIT IN THESE GROUNDS OF TH E CROSS OBJECTOR; HENCE, THE SAME ARE HEREBY DISMISSED. 10. IN THE RESULT, REVENUES APPEALS AS WELL AS ASS ESSEES CROSS OBJECTIONS, ALL ARE DISMISSED. SD/- SD/- (T.R. MEENA) (MUK UL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 30/05/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD