A.C.I.T Cir - 1,Asansol, Asansol V. Shyam Sundar Agarwal, Burdwan

ITA 1182/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4822 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 29-04-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2013
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND AGARWAL
• Section: 143(3)

Judgement Text

I.T.A. NO. 1182/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1182 /KOL/ 2013 ASSESSMENT YEAR: 2008-2009 ASSISTANT COMMISSIONER OF INCOME TAX,.............. .................APPELLANT CIRCLE-1, ASANSOL, LOWER CHELIDANGA, ASANSOL-4 -VS.- SHYAM SUNDAR AGARWAL,.............................. .........................RESPONDENT HANUMAN CHARAI, P.O. BARAKAR, DIST. BURDWAN-713 324 [PAN : AFLPA 8897 F] APPEARANCES BY: SHRI ARVIND AGARWAL ADVOCATE, FOR THE ASSESSEE SHRI ASHOK KUMAR, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : APRIL 29, 2016 DATE OF PRONOUNCING THE ORDER : MAY 27, 2016 O R D E R PER SHRI P.M. JAGTAP :- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX-(APPEALS), DURGAPUR DATE D 19.02.2013 FOR THE ASSESSMENT YEAR 2008-09, WHEREBY HE DELETED THE DISALLOWANCE OF RS.30,00,000/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF TRUCK HIRE CHARGES. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS ENGAGED IN THE BUSINESS OF TRANSPORTATION AND HANDLING WORK UN DER THE NAME AND STYLE OF HIS TWO PROPRIETARY CONCERNS M/S. SREE DUR GA ROADWAYS AND M/S. SHREE BALAJI ROADWAYS. THE RETURN OF INCOME F OR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 30.09.2008 DECLAR ING TOTAL INCOME OF I.T.A. NO. 1182/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 2 OF 5 RS.11,73,490/-. IN THE SAID RETURN, EXPENDITURE ON ACCOUNT OF TRUCK HIRE CHARGES PAID WAS CLAIMED BY THE ASSESSEE TO THE EXT ENT OF RS.17.29 CRORES AND RS.2.77 CRORES IN CASE OF HIS TWO PROPRIETARY C ONCERNS M/S. SHREE DURGA ROADWAYS AND M/S. SHREE BALAJI ROADWAYS RES PECTIVELY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE FOR THE SAID EXPENDITURE WAS EXAMINED BY THE ASSESSING OFFI CER AND ON SUCH EXAMINATION, HE FOUND THE FOLLOWING SHORTCOMINGS:- (1) THE SELF-MADE DEBIT VOUCHERS PRODUCED IN SUPPO RT OF TRUCK HIRE CHARGES ARE MOSTLY NOT AMENABLE TO ANY VERIFICATION AS POSTAL ADDRESSES WERE NOT PROVIDED. AS SUCH VERACITY OF THE EXPENSES INCURRED UNDER THIS H EAD CANNOT BE VERIFIED. (2) NO TRUCK OWNER-WISE PARTY LEDGER WAS MAINTAINED BY THE ASSESSEE. PAYMENTS FOR TRUCK HIRE CHARGES WERE MADE THROUGH SELF-MADE DEBIT VOUCHERS. ONLY DATE-WISE PAYMENT SHEETS WERE MAINTAINED BY THE ASSESSEE. (3) ALL PAYMENTS FOR TRUCK HIRE CHARGES WERE MADE B Y CASH. (4) IN BANK STATEMENTS IT IS FOUND THAT MONEY WAS WITHDRAWN FROM BANK ON DIFFERENT DATES FOR MAKING PAYMENT TO TRUCK OWNERS. ON THE BASIS OF THE ABOVE SHORTCOMINGS NOTICED BY H IM, THE ASSESSING OFFICER HELD THAT THE EXPENDITURE INCURRED BY THE A SSESSEE ON PAYMENT OF TRUCK HIRE CHARGES WAS NOT FULLY VERIFIABLE AND A D ISALLOWANCE OF RS.30,00,000/- OUT OF THE SAID EXPENDITURE WAS MADE BY HIM ON ACCOUNT OF NON-VERIFIABLE ELEMENT IN THE ASSESSMENT COMPLET ED UNDER SECTION 143(3) VIDE AN ORDER DATED 27.12.2010. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS) AND AFTER CONSIDERING THE SUBMISSION M ADE BY THE ASSESSEE AND PERUSING THE RELEVANT MATERIAL ON RECORD, THE L D. CIT(APPEALS) DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFI CER OUT OF TRUCK HIRE CHARGES PAID FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER:- I.T.A. NO. 1182/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 3 OF 5 IT IS SEEN FROM THE ASSESSMENT ORDER THAT THE ISSU E OF SUBMISSION OF FORMS 15-I & 15-J HAVE NOT BEEN DOUBT ED BY THE A.O. COPIES OF THESE FORMS SUBMITTED BEFORE ME SHOW THE ADDRESSES OF THE OWNERS. UNDER THE CIRCUMSTANCES, I DO NOT SEE WHAT PREVENTED THE A.O. FROM MAKING HIS ENQUIRI ES BASED ON THE MATERIAL ON RECORD. I DO NOT SEE IT TO BE TH E AOS CASE THAT THE ENQUIRIES MADE BY HIM HAVE THROWN DOUBTS O N THE APPELLANTS CONTENTION. NEITHER HAVE THE BOOKS OF ACCOUNTS SUBMITTED BEFORE HIM DRAWN ON ANY ADVERSE COMMENTS FROM THE A.O. UNDER THE CIRCUMSTANCES, I FAIL TO SEE THE RATIONALE FOR AN ESTIMATED DISALLOWANCE ON THIS ISSUE. NO BAS IS FOR THE QUANTUM OF ESTIMATED DISALLOWANCES MADE BY THE AO I S AVAILABLE ON RECORD. UNDER THE CIRCUMSTANCES, I AM UNABLE TO AG4REE WITH THE AOS DECISION. FURTHERMORE, ON S IMILAR FACTS, THE HONBLE ITAT, KOLKATA, IS SEEN TO HAVE D ELETED SIMILAR DISALLOWANCES IN THE CASE OF M/S. ASHOKA TR ANSPORTS [ITA NO. 1265/KOL/2009] BY THEIR ORDER DATED 20.11. 2009. RESPECTFULLY FOLLOWING THE SAID DECISION, THE DISAL LOWANCES MADE ARE DIRECTED TO BE DELETED AND THIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS FOUND BY THE LD. CIT(APPEALS) ON THE BASIS OF RELEVANT RECORD, THE INFORMATION AS RE GARDS THE NAMES AND ADDRESSES OF THE TRUCK OWNERS TO WHOM TRUCK HIRE CH ARGES WERE PAID BY THE ASSESSEE WAS ALREADY AVAILABLE BEFORE THE ASSES SING OFFICER IN THE FORMS 15-I AND 15-J FURNISHED BY THE ASSESSEE. NO E NQUIRY WHATSOEVER WAS MADE BY THE ASSESSING OFFICER WITH THE CONCERNE D TRUCK OWNERS TO FIND OUT THE GENUINENESS OF THE HIRE CHARGES CLAIME D TO BE PAID BY THE ASSESSEE. EVEN NO SPECIFIC OR MATERIAL DEFECTS WERE POINTED OUT BY THE ASSESSING OFFICER IN THE VOUCHERS MAINTAINED BY THE ASSESSEE IN SUPPORT OF HIS CLAIM FOR TRUCK HIRE CHARGES EXCEPT THAT THE SAID VOUCHERS WERE SELF-MADE VOUCHERS AND THE TRUCK HIRE CHARGES WERE PAID BY THE ASSESSEE IN CASH. KEEPING IN VIEW THE NATURE OF THE BUSINESS OF THE ASSESSEE, THERE WAS NOTHING UNUSUAL IN MAKING THE PAYMENT OF TRUCK HIRE CHARGES IN CASH THROUGH SELF-MADE VOUCHERS SO AS TO DOUBT THE GENUI NENESS OF THE I.T.A. NO. 1182/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 4 OF 5 EXPENDITURE INCURRED BY THE ASSESSEE ON TRUCK HIRE CHARGES. MOREOVER, AS RIGHTLY HELD BY THE LD. CIT(APPEALS), THE AD HOC DISALLOWANCE OF RS.30,00,000/- MADE BY THE ASSESSING OFFICER WAS WI THOUT ANY BASIS. IN THE CASE OF RANJIT SINGH PREM SINGH AHUJA VS.- DCI T (ITA NO. 961/PN/2014 DATED 24.06.2015), A SIMILAR ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE PUNE BENCH OF THIS TRIBUNA L AND THE DISALLOWANCE OF 2% OF TRANSPORT EXPENSES MADE BY TH E ASSESSING OFFICER BY RAISING TRIVIAL OBJECTION WAS HELD TO BE NOT SUS TAINABLE BY THE TRIBUNAL ON THE GROUND THAT NO MATERIAL DISCREPANCY WHATSOEV ER HAD BEEN POINTED OUT BY THE ASSESSING OFFICER IN THE BOOKS OF ACCOUN T AND OTHER RECORD MAINTAINED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM FOR TRANSPORT EXPENSES. KEEPING IN VIEW THE DECISION OF THE COORDINATE BENC H OF THIS TRIBUNAL IN THE CASE OF RANJIT SINGH PREM SINGH AHUJA (SUPRA) A ND HAVING REGARD TO ALL THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE AD HOC DISALLOWANCE OF RS.30,00,000/- MADE BY THE ASSESSING OFFICER OUT OF TRUCK HIRE CHARGES WAS NOT SUSTAINABLE AND THE LD. CIT(APPEALS) IS FUL LY JUSTIFIED IN DELETING THE SAME. IN THAT VIEW OF THE MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON T HIS ISSUE AND DISMISS THIS APPEAL FILED BY THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 27, 2016. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 27 TH DAY OF MAY, 2016 COPIES TO : (1) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, ASANSOL, LOWER CHELIDANGA, ASANSOL-4 (2) SHRI SHYAM SUNDAR AGARWAL, HANUMAN CHARAI, P.O. BARAKAR, DIST. BURDWAN-713 324 I.T.A. NO. 1182/KOL./2013 ASSESSMENT YEAR: 2008-2009 PAGE 5 OF 5 (3) COMMISSIONER OF INCOME TAX (APPEALS), DURGAPUR, (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.