DCIT, Circle - 51, Kolkata, Kolkata V. Shri Arjun Bhowmick, Kolkata

ITA 1071/KOL/2010

• Counselvise Citation: 107123514 RSA 2010
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-06-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 25-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 37; 194C

Judgement Text

I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA BEFORE SHRI C.D. RAO (ACCOUNTANT MEMBER), AND SHRI GEORGE MATHAN (JUDICIAL MEMBER) I.T.A. NO.: 1071/ KOL. / 2010 ASSESSMENT YEAR : 2006-07 , DEPUTY COMMISSIONER OF INCOME TAX,..APPELLAN T CIRCLE-51, KOLKATA VS. SHRI ARJUN BHOWMICK, ..RESPONDENT 244, VIP NAGAR, P.O. VIP NAGAR, KOLKATA-700 100 [PAN : AGKPB 7279 C] APPEARANCES BY: SHRI L.K.S. DAHIYA, D.R. , FOR THE APPELLANT SHRI S.K. TULSIYAN, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JULY 03, 2012 DATE OF PRONOUNCING THE ORDER : JULY 03, 2012 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-XXXII, KOLKATA IN APPEAL NO. 126/CIT(A)-XXXII/CIR-51/08-09/KOL.DATED 22.01.2010, FOR THE ASSESSMENT YEAR 2006-07. 2. 2. IN REVENUES APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- (1) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) WAS NOT JUSTIFIED IN DIRECTING TO DELETE THE ADDITION OF RS .1,99,95,180/- I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 2 OF 10 AS LABOUR CHARGES WHEN THE ASSESSEE FAILED TO PRODU CE ALL THE LABOUR SUPERVISORS OR FURNISH THEIR ADDRESSES. (2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) WAS NOT JUSTIFIED IN DIRECTING TO DELETE OUT OF LABOUR CHAR GES OF RS.31,01,255/- WHICH WAS ADMITTED BY THE ASSESSEE B EFORE LD. CIT(A) AS NOT PAYMENTS TO THE SUPERVISORS BUT TO TH E CONTRACTORS. (3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) WAS NOT JUSTIFIED IN DIRECTING TO DELETE AMOUNT OF RS.8,15, 000/- ADDED U/S. 40(A)(IA) AS THE ASSESSEE FAILED TO MAKE ANY T DS U/S. 194I OF THE I.T. ACT ON PAYMENT HIRE CHARGES. (4) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING ONLY RS.88,900/- OUT OF DIS ALLOWANCES OF EXPENDITURE OF RS.10,37,500/- ON SLURRY REMOVAL EXP ENSES THOUGH THE ASSESSEE HAS FAILED TO FILE ANY EVIDENCE . (5) IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT (A) WAS NOT JUSTIFIED IN CONFIRMING ONLY RS.76,500/- OUT OF RS. 12,90,370/- DISALLOWED BY THE AO AS NO TDS WAS MADE ON PAYMENT OF REPAIRING CHARGES AND MAINTENANCE. 3. SHRI L.K.S. DEHIYA, LD. D.R. REPRESENTED ON BEHA LF OF THE REVENUE AND SHRI S.K. TULSIYAN, LD. COUNSEL APPEARED ON BEH ALF OF THE ASSESSEE. 4. IT WAS SUBMITTED BY THE LD. D.R. ON BEHALF OF TH E REVENUE THAT THE ASSESSEE IS A CIVIL CONTRACTOR DOING THE BUSINESS O F CONSTRUCTION. IT WAS THE SUBMISSION THAT THE ASSESSEE HAS CONSTRUCTION A CTIVITIES AT VARIOUS PROJECTS AT VARIOUS SITES. IT WAS ALSO THE SUBMISSI ON THAT IN THE COURSE OF ASSESSMENT, IT WAS NOTICED THAT THE ASSESSEE HAS CLAIMED LABOUR PAYMENTS TO VARIOUS PERSONS ON WHICH THE ASSESSEE H AD NOT DEDUCTED TDS. IT WAS THE SUBMISSION THAT AS THE ASSESSEE HAD NOT DEDUCTED TDS, THE PROVISIONS OF SECTION 40(A)(IA) OF THE INCOME T AX ACT HAD BEEN INVOKED AND THE LABOUR CHARGES HAD BEEN DISALLOWED. IT WAS THE SUBMISSION THAT ON APPEAL, THE ASSESSEE HAD PRODUCE D CERTAIN REGISTERS I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 3 OF 10 UNDER THE GUISE OF LABOUR REGISTER, WAGES REGISTER, WHICH HAD BEEN ACCEPTED BY THE LD. CIT(APPEALS) AND THE ADDITIONS HAD BEEN DELETED. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAS C ATEGORICALLY GIVEN A FINDING IN HIS REMAND REPORT THAT THE ASSESEE HAD N OT PRODUCED THE WAGES REGISTER. IT WAS THE SUBMISSION THAT THE SO-C ALLED REGISTER, WHICH HAD BEEN PRODUCED BY THE ASSESSEE, WAS NOT WAGE REG ISTER IN SO FAR AS THERE WAS NO SEAL AND SIGNATURE VERIFYING THE SAME BY THE LABOUR AUTHORITIES. IT WAS THE FURTHER SUBMISSION THAT THE ASSESSING OFFICER HAD ALSO EXAMINED ONE SHRI ANANT RAY, WHO HAD BEEN PRODUCED BY THE ASSESSEE, WHO WAS CLAIMED TO BE THE SUPERVISOR OF T HE ASSESSEE, WHO HAD MADE THE PAYMENTS TO THE LABOURERS. IT WAS THE SUBMISSION THAT THE SAID ANANT RAY WAS, IN FACT, A SUB-CONTRACTOR AND N OT AN EMPLOYEE OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE SAID A NANT RAY HAD ACQUIRED A HOUSE PROPERTY HAVING A VALUE OF MORE TH AN RS.5 LAKH DURING THE PERIOD AND WAS ALSO MAINTAINED FAMILY OF THREE MEMBERS AND PAYING HOUSE RENT OF RS.1,000/- PER MONTH. IT W AS THE FURTHER SUBMISSION THAT THE ASSESSEE HAS NOT DEDUCTED PF OR ESI CONTRIBUTION IN RESPECT OF LABOURERS. IT WAS THE SUBMISSION THAT IN THE AUDIT REPORT, WHICH WAS FOUND IN THE PAPER BOOK OF THE ASSESSEE A T PAGE 6, COLUMN 16(B) OF THE AUDIT REPORT, AGAINST THE COLUMN SHOWI NG THAT ANY SUM RECEIVED FROM EMPLOYEE TOWARDS CONTRIBUTIONS TO ANY PROVIDENT FUND SUPERANNUATING FUND, ETC., THE SAME HAS SHOWN AS NI L. IT WAS THE SUBMISSION THAT AS THE ASSESSEE HAD NOT DEDUCTED PF IN RESPECT OF THE EMPLOYEES AND AS THE NUMBER OF EMPLOYEES DURING THE YEAR EXCEEDED 110 AS PER THE STATEMENT OF THE ASSESSEE ITSELF, TH ERE WAS CLEAR VIOLATION OF THE PROVISIONS OF THE PROVIDENT FUND ACT. IT WAS THE FURTHER SUBMISSION THAT EVEN IF WE CONSIDER THE REGISTERS A S WERE PRODUCED BY THE ASSESSEE FOR THE PAYMENT OF THE ALLEGED LABOUR CHARGES, THERE WAS I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 4 OF 10 NO REVENUE STAMP AGAINST THE PAYMENTS MADE TO THE L ABOURERS. IT WAS THE SUBMISSION THAT ALL THESE CATEGORICALLY PROVE T HAT THE ASSESSEE WAS NOT EMPLOYING LABOURERS DIRECTLY AND THE PAYMENTS H AD BEEN MADE TO THE SUB-CONTRACTORS, WHO HAD PROVIDED THE ASSESSEE WITH THE LABOURERS. IT WAS THE SUBMISSION THAT AS THE ASSESSEE HAD NOT DEDUCTED TDS ON THE PAYMENTS TO THE SUB-CONTRACTORS, WHO HAD SUPPLIED T HE LABOURERS, AS PER THE PROVISIONS OF SECTION 194C OF THE ACT, THE ASSESSING OFFICER WAS RIGHT IN INVOKING THE PROVISIONS OF SECTION 40(A)(I A) OF THE ACT AND DISALLOWING THE SAID LABOUR CHARGES. IT WAS THE SUB MISSION THAT THE LD. CIT(APPEALS) ERRED IN DELETING THE SAID ADDITION. I T WAS, HOWEVER, FAIRLY AGREED THAT NO AMOUNT WAS DUE TO THE LABOURE RS AS ON THE END OF THE FINANCIAL YEAR AND THE ISSUE IN THE APPEAL IS S QUARELY COVERED BY THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN T HE CASE OF MERILYN SHIPPING & TRANSPORTS IN ITA NO. 477/VIZ./2008 DATE D 29.03.2012. . 5. IN REPLY, LD. A.R. SUBMITTED THAT VIOLATION OF T HE PROVISIONS OF THE PROVIDENT FUND ACT DOES NOT AFFECT THE PROCEEDINGS UNDER THE INCOME TAX ACT. IT WAS THE SUBMISSION THAT IF THERE WAS AN Y VIOLATION OF THE PROVISIONS OF THE P.F. ACT, IT WAS FOR THE P.F. AUT HORITY TO TAKE ACTION AGAINST THE ASSESSEE, IT WOULD NOT LEAD TO DISALLOW ANCE OF AN EXPENDITURE OR FINDING THAT THE PAYMENTS MADE BY TH E ASSESSEE WERE NOT TO THE LABOURERS DIRECTLY AND THAT THE PAYMENTS WERE THROUGH SUB- CONTRACTORS. IT WAS THE SUBMISSION THAT THE SAID AN ANT RAY WAS THE LABOUR SUPERVISOR OF THE ASSESSEE, WHO WAS PAID A S ALARY OF RS.3,000/- PER MONTH AND HE CATEGORICALLY ADMITTED THAT HE WAS DISTRIBUTING THE LABOUR CHARGES TO THE LABOURERS AT THE SITES, WHERE HE WAS IN-CHARGE. IT WAS THE SUBMISSION THAT THIS STATEMENT OF SHRI ANAN T RAY HAD NOT BEEN DISLODGED. IT WAS THE SUBMISSION THAT THERE WAS NO EVIDENCE AVAILABLE I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 5 OF 10 TO SHOW THAT ANANT RAY WAS NOT AN EMPLOYEE OF THE A SSESSEE AND THAT SHRI ANANT RAY WAS A SUB-CONTRACTOR ON HIS OWN TERM S. IT WAS THE SUBMISSION THAT THE ASSESSEE HAS NO PERMANENT LABOU RER. IT WAS THE SUBMISSION THAT AS AND WHEN THE PROJECT IS STARTED BY THE ASSESSEE, THE ASSESSEE EMPLOYED THE LABOURERS THROUGH THE SARDARS , WHO ARE ALSO THE EMPLOYEES OF THE ASSESSE IN RESPECT OF THE SITES, W HERE THE ASSESSEE HAS UNDERTAKEN THE PROJECTS. IT WAS THE FURTHER SUBMISS ION THAT NO ACTION HAS BEEN TAKEN AGAINST THE ASSESSEE FOR NON-DEDUCTI ON OF TDS UNDER THE PROVISIONS OF SECTION 201 & 201(1A) OF THE ACT. IT WAS THE SUBMISSION THAT NOWHERE A FINDING HAS BEEN GIVEN THAT THE ASSE SEE WAS LIABLE TO DEDUCT TAX, WHICH HAS NOT BEEN DEDUCTED. IT WAS THE SUBMISSION THAT AS NO PROCEEDINGS HAS BEEN INITIATED AGAINST THE ASSES SEE U/S. 201 & 201(1A) AND IT COULD NOT BE HELD THAT THE ASSESSEE WAS LIABLE FOR DEDUCTION OF TDS. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD PRODUCED WAGES REGISTER MAINTAINED BY THE VARIOUS S UPERVISORS OF THE ASSESEE IN RESPECT OF THE PROJECTS. IT WAS THE SUBM ISSION THAT THE VERACITY OF THE SAID WAGE SHEETS HAS NOT BEEN PROVE D AS NON GENUINE. IT WAS THE SUBMISSION THAT THE ONLY ISSUE WAS THAT THE SAID WAGE SHEETS DID NOT CONTAIN THE SIGNATURE AND SEAL OF THE LABOU RER DEPARTMENT. IT WAS THE SUBMISSION THAT IT WOULD NOT MAKE THE WAGE SHEETS MAINTAINED BY THE ASSESSEE IS NON-RELIABLE. 6. IN REPLY, LD. D.R. SUBMITTED THAT ORDER U/S. 201 & 201(1A) HAD NO BEARING TO THE CASE IN SO FAR AS THAT WAS AN ACTION WHICH WAS TO BE INITIATED AND PROCEEDINGS DONE BY AN ANOTHER WING OF THE DEPARTMENT. IT WAS THE SUBMISSION THAT THE ASSESSING AUTHORITY WAS NOT THE PERSON CONCERNED WITH THE INITIATION OF THE PROCEEDINGS UN DER SECTION 201 & 201(1A). IT WAS ALSO THE SUBMISSION THAT EVEN THOUG H THE ASSESSEE HAS I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 6 OF 10 CLAIMED THAT HE HAD MULTIPLE SUPERVISORS AT VARIOUS SITES, ONLY ONE PERSON ALLEGEDLY TO BE SUPERVISOR HAD BEEN PRODUCED FOR EXAMINATION. IT WAS THE SUBMISSION THAT NO EVIDENCE HAD BEEN PRO DUCED BEFORE THE ASSESSING OFFICER AND EVEN IN THE REMAND PROCEEDING S, ALL EVIDENCES HAVE NOT BEEN PRODUCED. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(APPEALS) WAS LIABLE TO BE REVERSED. ON A SPECIF IC QUERY BY THE BENCH AS TO WHY THE DECISION OF THE HONBLE JURISDI CTIONAL HIGH COURT IN THE CASE OF STUMM INDIA IN ITA NO. 127 OF 2009 D ATED 16.08.2010, WHEREIN IT HAD BEEN HELD THAT WHEN THE PAYMENTS ARE MADE TO THE INDIVIDUAL LABOURER THROUGH SUPERVISOR, WHO WAS ALS O EMPLOYED BY THE ASSESSEE IS NOT LIABLE FOR TDS UNDER SECTION 194C A ND CONSEQUENTIAL DISALLOWANCE UNDER SECTION 40(A)(IA) COULD NOT BE M ADE WAS PUT TO THE D.R, IT WAS SUBMITTED THAT THE UNREPORTED DECISION OF THE HONBLE HIGH COURT CANNOT BE HELD TO BE HAVING BINDING VALUE OVE R REPORTED DECISION. IT WAS ALSO SUBMITTED THAT THE FACTS IN R ELATION TO THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT H AD NOT BEEN GIVEN TO THE LD. DR FOR HIS REBUTTAL, THEREFORE, THE SAME SH OULD NOT BE FOLLOWED. AS THIS DECISION HAS NOT BEEN GIVEN TO THE LD. DR I T WAS FAIRLY AGREED THAT THIS DECISION WOULD NOT BE RELIED UPON FOR DEC IDING THE ISSUE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITT EDLY THE ISSUE IN REGARD TO APPLICABILITY OF THE PROVISIONS OF SEC TION 40(A)(IA) AND CONSEQUENTIAL DISALLOWANCE OF THE LABOUR PAYMENTS O N ACCOUNT OF NON- DEDUCTION OF TDS IN RESPECT OF LABOUR CHARGES, NOW STANDS SQUARELY COVERED BY THE DECISION OF THE SPECIAL BENCH OF THI S TRIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORTS REFERRED TO SUPRA ESPECIALLY IN VIEW OF THE FACT THAT THE BALANCE-SHEET OF THE ASSESSEE CATEGORICALLY SHOWS NO PAYMENT IS OUTSTANDING . THUS ON THE BASIS OF THE S AID DECISION THE I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 7 OF 10 FINDING OF THE LD. CIT(APPEALS) IS UPHELD. HOWEVER, AS IT HAS BEEN SPECIFICALLY PRAYED FOR BY THE REVENUE THAT A DECIS ION ON THE FACTS OF THE CASE WOULD ALSO BE REQUIRED, IN THESE CIRCUMSTA NCES, THOUGH WE HAVE ALREADY DECIDED THE ISSUE IN FAVOUR OF THE ASS ESSEE BY FOLLOWING THE DECISION OF THE HONBLE SPECIAL BENCH OF THIS T RIBUNAL IN THE CASE OF MERILYN SHIPPING & TRANSPORT, CONCEDING TO THE SUBM ISSION OF THE LD. DR THAT THE FINDING ON FACTS IS ALSO REQUIRED, WE P ROCEED TO DECIDE THE ISSUE ON FACTS. 8. ADMITTEDLY, ASSESSEE HAS PRODUCED A REGISTER, WH ICH CONTAINED PAYMENTS TO VARIOUS LABOURERS. ADMITTEDLY, THIS REG ISTER DOES NOT CONTAIN THE ADDRESSES OF THE LABOURERS NOR IT CONTA INS REVENUE STAMP, NOR IS IT SIGNED BY THE LABOUR DEPARTMENT, NO PF HA S ALSO BEEN DEDUCTED. DOES ALL THESE WRONGS IN ITS ENTIRETY OR INDIVIDUALITY MAKE THE EXPENSES INCURRED BY THE ASSESSEE DENIABLE? CAN THIS DEFECT BE HELD TO BE CHANGING THE MODE OF PAYMENT OF THE ASSESSEE FROM ONE MODE TO ANOTHER? HERE WE WOULD ANSWER NO. THE NAMES OF TH E PERSONS ARE AVAILABLE, THE PROJECT IS AVAILABLE. NO BUSINESSMAN , WHO IS HAVING MULTIPLE PROJECTS, CAN BE EXPECTED TO KNOW THE NAME AND ADDRESS OF EACH OF THE WORKERS. MORE SO, WHEN SUCH WORKERS ARE NOT PERMANENT EMPLOYEES AND WHO ARE WORKING IN THE PROJECT ONLY D URING THE DURATION OF SUCH PROJECT. A VIOLATION OF THE PROVISIONS OF P ROVIDENT FUND ACT COULD HAVE BEST LEAD TO INITIATION OF PROCEEDINGS U NDER THE P.F. ACT. NOT MAINTAINING THE LABOUR REGISTER AS PER THE REQU IRED LAWS OF THE LABOUR LAWS IS A VIOLATION OF THE LABOUR LAWS AND N OT OF THE INCOME TAX ACT. IN SHORT, VIOLATION OF ANY LAW AS LONG AS THE PAYMENT DOES NOT BECOME ILLEGAL ON ACCOUNT OF SUCH VIOLATION; THE SA ME CANNOT BE HIT UNDER THE INCOME TAX ACT. THIS IS JUST THE REASON W HY THE EXPLANATION 1 I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 8 OF 10 TO SECTION 37 HAS BEEN BROUGHT IN. ASSUMING, THE SU PERVISOR ANANT RAY, WHO APPEARED, WAS NOT A SUPERVISOR. SUCH WITNESS HA S NOT BEEN DISLODGED AS THE STATEMENT HAS NOT BEEN SHOWN TO BE WRONG. THAT HE HAS BUILT A HOUSE WORTH RS.5 LAKHS DOES NOT GO AGAI NST THE SAID ANANT RAY AS IF THIS IS TO BE EXPECTED, NO LABOUR IN THE COUNTRY CAN OWN A HOUSE. THE ASSESSEE HAS PRODUCED THE EVIDENCES. SUC H EVIDENCES MIGHT NOT BE TO THE SATISFACTION OF THE ASSESSING OFFICER , BUT WHAT IS TO BE KEPT IN MIND IS THAT SUCH EVIDENCE HAS NOT BEEN FOU ND TO BE FALSE. IT HAS ONLY BEEN PRESUMED TO BE WRONG. IT MIGHT ALSO BE FO UND INCOMPLETE STILL THIS SUBMISSION OF THE ASSESSEE THAT THE PAYM ENTS WERE MADE DIRECTLY BY THE ASSESSEE TO THE EMPLOYEES/ LABOURER S THROUGH THE SUPERVISOR, DOES NOT STAND DISLODGED. IN THESE CIRC UMSTANCES, WE ARE OF THE VIEW THAT THE FINDING OF THE LD. CIT(APPEALS) O N THIS ISSUE ON MERITS IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INT ERFERENCE. 9. IN REGARD TO GROUND NO. 2, AT THE TIME OF HEARIN G, LD. D.R. VEHEMENTLY SUPPORTED THE ORDER OF ASSESSING OFFICER . IN REPLY, LD. AR SUBMITTED THAT THIS GROUND IS MISC ONCEIVED AND DOES NOT ARISE ON THE ORDER OF THE LOWER AUTHORITIE S. A PERUSAL OF THE GROUND CLEARLY SHOWS THAT THE ISSUE RAISED IN GROUN D NO. 2 DOES NOT ARISE OUT OF THE ORDER OF THE LOWER AUTHORITIES. CO NSEQUENTLY, GROUND NO. 2 OF THE REVENUES APPEAL STANDS DISMISSED. 10. IN REGARD TO GROUND NO. 3,LD. DR VEHEMENTLY SUP PORTED THE ORDER OF ASSESSING OFFICER AND IN REPLY, LD. AR SUBMITTED THAT THE PROVISIONS OF SECTION 194I WAS AMENDED TO INCLUDE THE RENTAL P AYMENT/ HIRE CHARGES IN RESPECT OF PLANT AND MACHINERY W.E.F. JU LY, 2006 AND CONSEQUENTLY THE FINDING OF THE LD. CIT(APPEALS) TH AT THE SAID I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 9 OF 10 PROVISION DOES NOT APPLY FOR THE ASSESSMENT YEAR UN DER APPEAL BEING THE ASSESSMENT YEAR 2006-07 WAS LIABLE TO BE UPHELD . 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE PROVISIONS OF SECTION 194I HAS BEEN AMENDED TO ENCOMPASS WITHIN ITS PROVISION, THE HIRE CHARGES IN RESPECT OF PLANT AND MACHINERY W.E.F. JULY,2006, WE ARE OF THE VIEW THAT THE FINDING OF T HE LD. CIT(APPEALS) IN DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFF ICER IS ON A RIGHT FOOTING AND DOES NOT CALL FOR ANY INTERFERENCE. 12. IN REGARD TO GROUNDS NO. 4 & 5, IT WAS THE SUBM ISSION BY THE LD. DR THAT THE SAID DISALLOWANCE WAS IN RESPECT OF SLU RRY REMOVAL EXPENSES, WHICH THE ASSESSEE HAD CLAIMED TO BE REIM BURSEMENT OF EXPENSES. IT WAS THE SUBMISSION THAT A PERUSAL OF T HE CHART PRODUCED BY THE ASSESSEE, WHICH WAS SHOWN AT PAGES 112 TO 114 O F THE PAPER BOOK CLEARLY SHOWS THAT THE ASSESSEE HAS SHOWN A BREAK-U P IN RESPECT OF THE REIMBURSEMENT OF COST OF CONSUMABLES, ETC. AND REPA IRING CHARGES. IT WAS THE SUBMISSION THAT NORMALLY THE BILL IN RESPEC T OF THE TRANSPORTING CHARGES DOES NOT CONTAIN SUCH BREAK-UP AND THE BREA K-UP WAS ONLY AN AFTER THOUGHT. IT WAS REPLIED BY THE LD. AR THAT AS THE BILLS HAD BEEN PRODUCED AND THE PAYMENTS WERE SPECIFICALLY SHOWN T O BE REIMBURSED OF THE EXPENSES, THE DISALLOWANCE OF THE SLURRY REM OVAL EXPENSES WAS UNCALLED FOR. HE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(APPEALS) 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT IS NOTICED THAT THE SLURRY REMOVAL EXPENSES HAS BEEN CATEGORICALLY SHOWN IN RESPECT OF TANKERS AND LORRIES ON WHICH THE ASSESSEE HAS REIMB URSED THE EXPENSES AND THIS BREAK-UP HAS NOT BEEN DISPROVED NOR SHOWN TO BE WRONGLY I.T.A. NO. 1071/ KOL./ 2010 ASSESSMENT YEAR : 2006-07 PAGE 10 OF 10 CLAIMED BY THE ASSESSEE. WE ARE OF THE VIEW THAT TH E FINDING OF THE LD. CIT(APPEALS) ON THIS ISSUE IS ON A RIGHT FOOTING AN D DOES NOT CALL FOR ANY INTERFERENCE. IN THESE CIRCUMSTANCES, GROUNDS N O. 4 & 5 OF REVENUES APPEAL STAND DISMISSED. 14. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. THE ORDER IS DICTATED AND PRONOUNCED IN THE OPEN COURT IMMEDIATE LY UPON CONCLUSION OF HEARING TODAY ON 3 RD DAY OF JULY, 2012. SD/- SD/- C.D. RAO GEORGE MATHAN (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, THE 3 RD DAY OF JULY, 2012 COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.