Kishan Lal Sharma, New Delhi V. ACIT, New Delhi

ITA 1319/DEL/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5232 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-08-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 19-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY VERMA
• Keywords: Rejection of books of accounts; Tangible material; Onus to prove; Revised return
• Section: 143(3); 194C

Judgement Text

ITA NOS. 1319 & 1368/DEL/2012 ASSESSMENT Y EAR: 2007 - 08 PAGE 1 OF 24 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D BENCH NEW DELHI) BEFORE SHRI G.D. AGRAWAL, PRESIDENT & SHRI AMIT SHUKLA , JUDICIAL MEMB E R I N ITA NO S . 1319 & 1368 /DEL/201 2 ASSESSMENT YEAR: 20 0 7 - 0 8 LATE KISHAN LAL SHARMA, THROUGH LEGAL HEIR, SAVITRI DEVI G - 115, DILSHAD COLONY, NEW DELHI VS. AC IT CIRCLE 34(1), NEW DELHI (APPLICANT) (RESPONDENT) (PAN: A A OPS0458A ) ACIT CIRCLE 34(1), NEW DELHI VS. LATE KISHAN LAL SHARMA, THROUGH LEGAL HEIR, SAVITRI DEVI G - 115, DILSHAD COLONY, NEW DELHI (APPLICANT) (RESPONDENT) (PAN: A A OPS0458A ) ASSESSEE BY: SHRI VIVEK BANSAL, ADVOCATE REVENUE BY: SH RI VIJAY VERMA, CIT - DR 0 1 / 0 8 /201 7 DATE OF PRONOUNCEMENT 0 7 / 0 8 /201 7 ORDER PER BENCH : THE AFORESAID CROSS APPEAL S HA VE BEEN FILED BY THE R EVENUE AS WELL AS BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 05 . 1 2 .201 1 , PASSED BY THE LD. CIT (APPEALS) - XXVII , NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) F OR THE A.Y. 200 7 - 0 8 . PAGE 2 OF 24 2. WE WILL FIRST TAKE UP THE ASSESSEE S APPEAL BEING ITA NO. 1319/DEL/2012, WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED: - 1. THAT THE AUTHORITIES BELOW ERRED BOTH IN LAW AND ON THE FACTS IN REJECTING THE PROPERTY MAINTAINED AND DULY AUDITED BOOKS OF ACCOUNTS OF THE APPLICANT AND IN MAKING ADDITION OF RS. 38,46,610/ - BY ESTIMATING THE NET PROFIT @ 5% OF THE TOTAL TURNOVER/RECEIPTS OF LIE APPELLANT. 2. THAT THE AUTHORITIES BELOW ERRED BOTH IN LAW AND ON THE FACTS IN NOT CONSIDERING THE REVISED RETUR N SUBMITTED BY THE APPELLANT AT ALL WITHOUT BRINGING ANY SPECIFIC MATERIAL ON RECORD. 3. THAT THE ORDERS OF THE AUTHORITIES BELOW ARE BAD IN LAW AND ON THE FACTS OF THE CASE. 4. THAT THE ORDERS PASSED ARE ERRONEOUS, ILLEGAL AND AGAINST THE PRINCIPLES OF N ATURAL JUSTICE AND EQUITY AS WELL AS THE WELL SETTLED LAWS. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN INDIVIDUAL (SINCE DECEASED , REPRESENTED THROUGH LEGAL HEIR , SMT. SAVITRI DEVI) WAS ENGAGED IN THE BUSINESS OF TRANSPORTATION BY HEAVY VEHICLES LIKE TRUCKS AND TRAILERS IN THE NAME AND STYLE OF N EW E VERGREEN T RANSPORT C ORPORATION . FOR THE BUSINESS OF TRANSPORT, THE ASSESSEE MOSTLY HIRE D TRUCKS FROM VARIOUS INDIVIDUALS OR TRANSPORT C ONTRACTORS, BESIDES HIS OWN TRUCKS . THE GENESIS OF THE CONTROVER SY FOR REJECTION OF BOOKS OF ACCOUNTS AND THEREBY APPL ICATION OF NET PROFIT RATE AROSE WHEN THE ASSESSING OFFICER FROM THE PERUSAL OF RETURN OF INCOME NOTICED THAT FIGURES GIVEN IN THE RETURN OF INCOME FILED ON 31.10.2007, DO NOT MATCH WITH THE FIGURES GIV EN IN THE AUDITED BALANCED SHEET DATED 17.9.2007 FILED BEFORE HIM . IN THE RETURN OF INCOME THERE WAS REFERENCE AND MENTION ABOUT AN AUDIT REPORT DATED 27.10.2007 AND BASED ON SUCH DISCREPANCY T HE PAGE 3 OF 24 ASSESSING OFFICER REQUIRED THE ASSESSEE TO RECONCILE THE FIG URES GIVEN IN THE RETURN OF INCOME WHICH MENTIONED AUDIT REPORT DATED 27.10.2007 AND THE AUDIT REPORT SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS , DATED 17.9.2007. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE CLARIFIED THAT THERE IS NO SUCH AUDIT REPORT DATED 27.10.2007 WHICH PERT A IN TO THE ASSESSEE ALBEIT THERE IS ONLY ONE AUDIT REPORT WHICH IS DATED 17.9.2007 AND THE COPY OF THE SAME HAD ALREADY BEEN PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS CONTENDED THAT I N THE RET URN OF INCOME, BY MISTAKE DATE OF THE AUDIT REPORT HAS BEEN MENTIONED AS 27.10.2007 INSTEAD OF 17.9.2007. THE ASSESSEE ALSO FILED FRESH FORM 4 OF ITR RECTIFYING THE MISTAKE. THE ASSESSEE S REPLY FILED IN THIS REGARD VIDE LETTER DATED 29.12.2009 HAS BEEN INCORPORATED BY THE ASSESSING OFFICER AT PAGE 2 OF THE ASSESSMENT ORDER. HOWEVER, THE LD. ASSESSING OFFICER REJECTED THE ASSESSEE S CONTENTION AND HELD THAT THE DEFECTS IN THE RETURN OF INCOME WERE OUTSIDE THE PURVIEW OF SECTION 139(9) AND THE FILING OF FR ESH F ORM NO. 4 BY THE ASSESSEE BEFORE HIM (WHICH WAS FILED WITH RETURN OF INCOME) CANNOT BE ENTERTAINED. THEREAFTER, THE LD. ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS IN ORDER TO RECONCILE THE FIGURES AND TRADING RESULTS . H OW EVER AS NOTED BY THE ASSESSING OFFICER IN HIS ORDER, THE ASSESSEE COULD NOT PRODUCE THE BOOKS OF ACCOUNTS AND THE REASON STATED WAS THAT THE SOFTWARE OF THE COMPUTER ON WHICH BOOKS OF ACCOUNTS WERE MAINTAINED HAD BECOME CORRUPT AND WAS UNDER PROCESS OF REC OVERY. UNDER THESE FACTS AND CIRCUMSTANCES, THAT IS, THERE WAS DIFFERENCE IN THE FIGURES ME N TIONED IN RETURN OF INCOME AND THE AUDIT REPORT SUBMITTED DURING ASSESSMENT PROCEEDINGS WHICH COULD NOT BE RECONCILED; AND NON PRODUCTION OF BOOKS OF ACCOUNT, THE ASSESSING OFFICER HELD THAT HE IS NOT SATISFIED WITH THE CORRECTNESS AND PAGE 4 OF 24 COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE AND THEREFORE, THE PROFIT SHOWN BY THE ASSESSEE CANNOT BE RELIED UPON. ACCORDINGLY, HE REJECTED THE BOOKS OF ACCOUNTS U/S 145(3) AND T HEREBY APPLIED NET PROFIT RATE OF 5% ON THE TOTAL TURNOVER OF RS. 11,17,99,654/ - WHICH WORKED OUT TO RS. 55,89,983/ - . SINCE ASSESSEE HAD ALREADY DISCLOSED THE NET PROFIT OF RS. 17,43,373/ - , THEREFORE, THE DIFFERENCE OF RS. 38,46,610/ - WAS ADDED TO THE RETU RN ED INCOME . AO FURTHER OBSERVED THAT THERE WAS A MISMATCH OF THE FIGURES MENTIONED IN THE AUDITED BALANCE SHEET WHICH WAS SHOWN AT RS. 56,73,637/ - , WHEREAS THE TOTAL OF COLUMN S OF THE BALANCE SHEET MENTIONED IN THE RETURN OF INCOME COMES TO RS. 95,34,354/ - AND TH US , THERE WAS DIFFERENCE OF RS. 38,60,717/ - , WHICH HE HELD THAT IT IS NOTHING BUT NON - EXISTING LIABILITIES WHICH ARE NOT VERIFIABLE IN ABSENCE OF BOOKS OF ACCOUNT . HOWEVER, HE DID NOT MA D E ANY SEPARATE ADDITION ON THIS ACCOUNT , BECAUSE HE HAD ALREA DY MADE ADDITION ON ESTIMATED NET PROFIT BY REJECTING THE BOOKS OF ACCOUNTS. 4. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE TRIED TO CLARIF Y MOST OF THE ISSUES WHICH W ERE RAISED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND DETAILED SUBMISSIONS WERE FILED WHICH WERE FORWARDED TO THE ASSESSING OFFICER FOR SUBMI TTING THE REMAND REPORT, THE RELEVANT PORTION OF WHICH HAVE BEEN REPRODUCED FROM PAGES 6 TO 8 OF THE APPELLATE ORDER. THE ASSESSEE S ONE OF THE M AIN CONTENTIONS BEFORE THE L D . CIT (APPEALS) WAS THAT , A REVISED RETURN WAS FILED BY THE ASSESSEE ON 15.11.2007 WHICH WAS SENT THROUGH REGISTERED AD POST AND THEREFORE, ASSESSMENT SHOULD HAVE BEEN DONE ON THE BASIS OF REVISED RETURN . HOWEVER, IN THE REMAND REPORT, THE ASSESSING OFFICER REBUTTED THE S AID CLAIM OF THE ASSESSEE THAT NO SUCH RETURN OF INCOME HAS BEEN RECEIVED BY THE DEPARTMENT WHICH IS EVIDENT FROM PAGE 5 OF 24 THE RETURN RECEIPT REGISTER. APART FROM THAT , HE POINTED OUT THAT THE COPY OF RETURN ENCLOSED BY THE ASSESSEE DOES NOT MENTION THE DATE OF FIL ING O R ANY ACKNOWLEDGMENT NUMBER. THEREFORE, THE ASSESSEE S CONTENTION THAT THE ASSESSMENT SHOULD HAVE BEEN MADE ON THE BASIS OF REVISED RETURN CANNOT BE ACCEPTED. ON THE MATTER OF REJECTION OF BOOKS OF ACCOUNTS , AO REITERATED THE OBSERVATION S AND THE FINDINGS OF THE ASSESSING OFFICER AS GIVEN IN THE ASSESSMENT ORDER. IN RESPONSE TO THE SAID REMAND REPORT, THE ASSESSEE HAD FILED REJOINDER SUBMISSIONS BY STATING THAT , FIRSTLY, THE REVISED RETURN WAS SENT THROUGH REGISTERED AD POST ON 15.11.2007 , THAT IS, WITHIN A FORTNIGHT OF THE FILING OF THE ORIGINAL RETURN AND THE SAID REVISED RETURN WAS DULLY RECEIVED IN THE OFFICE OF THE ASSESSING OFFICER ON 19.11.2007 AND EVIDENCE IN THIS REGARD WAS PLACED BEFORE THE LD . CIT(APPEALS); SECONDLY, DUE TO MISTAKE, THE C OUNSEL S REPRESENTATIVE BEFORE THE ASSESSING OFFICER COULD NOT POINT OUT ABOUT THE FILING OF REVISED RETURN. THUS, IT WAS STRONGLY CONTENDED THAT THE REVISED RETURN OF INCOME SHOULD BE ACCEPTED WHICH CLARIFIES ALL THE DISCREPANCIES BETWEEN THE DIFFERENT DA TES OF AUDIT REPORT AND ALSO THE FIGURES. 5. THE LEARNED CIT (APPEALS) AFTER CONSIDERING THE ENTIRE GAMUT OF MATERIAL PLACED ON RECORD, AGREED WITH THE CONTENTION OF THE ASSESSING OFFICER THAT NO SUCH REVISED RETURN CAN BE SAID TO HAVE BEEN FILED BY THE ASSESSEE OR ANY COGNIZANCE CAN BE TAKEN FOR THE REASON THAT , THERE I S NO RECEIPT NUMBER OR DIARY NUMBER OR ANY ACKNOWLEDGEMENT NUMBER ON THE COPY OF REVISED RETURN FILED BY THE ASSESSEE. REGARDING TWO VERSION S OF BALANCE SHEET AND THE DIFFERE NCE IN THE TOTAL FIGURE, THE LD . CIT (APPEALS) HELD THAT , SINCE NO BOOKS OF ACCOUNTS HAVE BEEN PRODUCED SO AS TO VE RIFY/RECONCILE THE DISCREPANCY, THEREFORE, ASSESSEE S CLAIM CANNOT BE ACCEPTED. PAGE 6 OF 24 REGARDING APPLICATION OF NET PROFIT AT 5% O N THE TOTAL TURNOV ER OF RS. 11.18 CRORE, THE LD . CIT(APPEALS) ANALYZED THE GROSS RECEIPT S AND THE NET PROFIT SHOWN BY THE ASSESSEE IN THE PRECEDING ASSESSMENT YEARS , WHICH WERE AS UNDER: - A.Y. TOTAL RECEIPTS (RS.) NET PROFIT (RS.) NP RATE 2004 - 05 90,00,257 1,94,635 2.16% 2005 - 06 1,59,05,292 1,99,208 1.88% 2006 - 07. 7,12,55,125 11,43,907 1.61% CURRENT ASST. YEAR 11,17,99,654 17,43,373 1.60% HE FURTHER NOTED THAT IN THE IMMEDIATELY PRECEDING YEAR , I.E. , A.Y. 2006 - 07 , THE ASSESSING OFFICER HAD APPLIED NET PROFIT RATE OF 2.02% , WHICH WAS AN AVERAGE, ARRIVED BY TAKING THE FIGURES OF TWO PRECEDING ASSESSMENT YEARS . ACCORDINGLY, HE HELD THAT AT NET PROFIT @ 2.02% SHOULD BE APPLIED INSTEAD OF 5%. THE NET PROFIT ACCORDINGLY WORKED OUT TO RS. 22,58,353/ - AND AFTER GIVING DEDUCTION ON ACCOUNT OF NET PROFIT SHOWN BY THE ASSESSEE AT RS. 17,43,373/ - , THE BALANCE AMOUNT OF RS. 5,14,980/ - WAS DIRECTED BY THE LD. CIT(A) TO BE ADDED TO THE INCOME OF THE ASSESSEE. 6 HOWEVER, AFTER RESTRICTING THE ADDITION ON ACCOUNT OF NET PROFIT AT RS. 5,14,980/ - , THE LD . CIT(APPEALS) PROCEEDED TO TAKE IN TO ACCOUNT THE DIFFERENCE OF THE FIGURES OF BALANCE SHEET WHICH WAS MENTIONED IN THE RETURN OF INCOME AND THE BALANCE SHEET IN THE AUDIT REPORT DATED 17.9.2007. HE NOTED THAT THE DIFFERENCE OF RS. 38,60,717/ - IS AN EXCESS AMOUNT WHICH NEEDS TO BE ADDED , BECAUSE IT CAN BE ON ACCOUNT OF NON EXISTING LIABILITIES WHICH ARE NOT OPEN TO VERIFI CATION IN THE ABSENCE OF BOOKS OF ACCOUNTS. HOWEVER, HE RESTRICTED THE ADDITION ON AC COUNT OF SAID DISCREP ANCY/DIFFERENCE AT PAGE 7 OF 24 RS. 33,45,737/ - AS THE ADDITION OF RS. 5,14,980/ - HAD ALREADY BEEN CONFIRMED BY HIM ON ACCOUNT OF ESTIMATION OF NET PROFIT RATE. AS RESULT OF THE FIRST APPELLATE ORDER THE ADDITION ON THE TRADING ACCOUNT WAS WORKED OUT TO RS. 38,60,717/ - WHICH WAS BY AND LARGE THE SAME FIGURE ADDED BY THE ASSESSING OFFICER , I.E. , RS. 38,46,610/ - . 7. BEFORE US THE LD. C OUNSEL , SH RI VIVEK BANSAL, AFTER EXPLAINING THE ENTIRE FACTS OF THE CASE SUBMITTED THAT , FIRST OF ALL , THERE IS NO LEGAL JUSTIFICATION FOR NOT ACCEPT ING THE REVISED RETURN OF INCOME , WHICH WAS FILED WITHIN THE FORTNIGHT OF FILING OF ORIGINAL RETURN OF INCOME THROUGH R EGISTERED AD POST WHICH WAS ALSO DULY RECEIVED IN THE OFFICE OF THE ASSESSING OFFICER. SO FAR AS ASSESSEE I S CONCERN , THE REVI SED RETURN DATED 15.11.2007 HAS BEEN DULLY FILED IN ACCORDANCE WITH THE LAW AND THEREFORE , SAME SHOULD BE TAKEN INTO COGNIZANCE FOR MAKING THE ASSESSMENT . IN ANY CASE, ONCE THE FACTUM OF REVISED RETURN WAS BROUGHT TO THE NOTICE OF LD . CIT (APPEALS) , THEN H E SHOULD HAVE ASKED THE ASSESSING OFFICER TO SCRUTINIZE THE SAME WHEN HE REMANDED THE MATTER TO THE AO AND CALLED FOR THE REMAND REPORT . AO COULD HAVE VERY WELL VERIF IED THE SAME AND COMPUTED THE INCOME IN ACCORDANCE WITH THE REVISED RETURN , WHEREIN THE MI STAKE OF THE FIGURES WAS DULY RECTIFIED . REGARDING REJECTION OF BOOKS OF ACCOUNTS , HE SUBMITTED THAT THE SAME HAS BEEN MADE ON THE GROUND THAT THERE IS A DIFFERENCE IN THE FIGURES MENTIONED IN THE ORIGINAL RETURN OF INCOME AND THE AUDIT REPORT SUBMITTED , W HIC H AS PER THE ASSESSING OFFICER, ASSESSEE COULD NOT GIVE ANY PROPER EXPLANATION. HOWEVER THE DIFFERENCE WAS DULLY CLARIFIED BEFORE THE LD . CIT (APPEALS), AS WELL AS BEFORE THE ASSESSING OFFICER THAT THE TRUE AND CORRECT AUDIT REPORT WAS ONLY 17.9.2007 AND THE SECOND AUDIT REPORT AS MENTIONED IN THE RETURN OF INCOME DID NOT EXIST AT ALL AND WAS MENTIONED IN THE RETURN PAGE 8 OF 24 OF INCOME BY MISTAKE ON THE P ART OF THE STAFF OF THE CHA R TERED ACCOUNTANT/REPRESENTATIVE FILING RETURN OF THE INCOME. THAT IS WHY THE MISTAKE APPEARING IN THE FIGURES WERE RECTIFIED BY WAY OF REVISED RETURN. THUS, THE DIFFERENCE BETWEEN THE SO CALLED TWO BALANCE SHEETS CANNOT BE ADDED SIMPLY ON THE GROUND THAT THE DIFFERENCE AMOUNT COULD BE SOME KIND OF NON - EXISTING LIABILITY SANS ANY MATERIAL ON RECORD TO CORROBORATE THE SAME. FOR MAKING SUCH AN ADDITION, THERE HAS TO SOME TANGIBLE MATERIAL TO SHOW THAT EITHER THE ASSESSEE HAS SHOWN A NY FICTITIOUS LIABILITIES O R THERE IS ANY LIABILITY WHICH HA S NOT BEEN CORRECTLY STATED IN THE BALANCE SHEET DATED 17.9.2007. HE REQUESTED THAT THIS MATTER CAN BE RESTORED BACK TO THE FILE OF AO TO CONSIDER ALL THE FACTS CORRECTLY AND ALSO THE REVISED RETU RN OF INCOME. LASTLY, BY WAY OF AN ALTERNATIVE ARGUMENT HE SUBMITTED THAT SO FAR AS THE APPLICABILITY OF NET PROFIT AT 2.02% IS CONCERNED , THE LD . CIT (APPEALS) SHOULD HAVE CONSIDERED AVERAGE NET PROFIT RATE OF TWO PRECEDING YEARS WHICH W ILL WORK OUT TO 1.75% INSTEAD OF 2.02%. 8. ON THE OTHER HAND THE LD. CIT DR SUBMITTED THAT , IT IS AN UNDISPUTED FACT THAT THE ASSESSEE COULD NOT PRODUCE THE BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER OR COULD SUBSTANTIATE ITS CLAIM REGARDING NON EXISTENCE OF AUDI T REPORT DATED 27.10 . 2007 OR FILING OF REVISED RETURN OF INCOME ON 15.11.2007. UNDER THESE FACTS AND CIRCUMSTANCES THE ONLY RECOURSE LEFT WITH THE ASSESSING OFFICER IS TO REJECT THE CORRECTNESS OF THE TRADING ACCOUNT AND THEREBY ESTIMATE THE INCOME BY APPL YING NET PROFIT RATE. THE NET PROFIT OF 5% AS APPLIED BY THE ASSESSING OFFICER IS FULLY JUSTIFIED AND REASONABLE LOOKING TO THE PECULIAR FACTS AND CIRCUMSTANCES OF THIS YEAR , AS THE ASSESSEE WAS UNABLE TO RECONCILE THE FIGURES AS STATED IN RETURN OF INCOME AND ALLEGED AUDIT REPORT DATED 17.09.2007 AND THUS , THE PAGE 9 OF 24 ADDITION MADE BY THE ASSESSING OFFICER WILL SUBSUME THE ADDITION ON ACCOUNT OF DIFFERENCE IN THE FIGURES OF THE BALANCE SHEET AS WELL AS THE APPLICATION OF NET PROFIT RATE AND IT WILL BE CORRECT DETE RMINATION OF INCOME OF THE ASSESSEE FOR THIS YEAR . LASTLY, ON THE ISSUE OF FILING OF REVISED RETURN OF INCOME BY THE ASSESSEE, HE VEHEMENTLY OPPOSED FOR ADMITTING THE REVISED RETURN OF INCOME AND SUBMITTED ASSESSEE COULD N OT PROVE BEFORE THE AUTHORITIES BELOW REGARDING FILING OF SUCH RETURN AND HAD IT BEEN FILED THEN DEFINITELY ASSESSEE COULD HAVE BROUGHT TO THE NOTICE OF AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THIS GOES TO PROVE T HAT IT WAS AN AFTERTHOUGHT. HENCE THE MATTER SHOULD NOT BE REMANDED BACK. 9 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDER S AS WELL AS MATERIALS REFERRED TO BEFORE US. HERE IN THIS CASE THE MAIN ISSUE REVOLVES AROUND REJECTION OF BOOKS OF ACCOUNTS AND THE TRADING RESULT SHOWN BY THE ASSESSEE AND THEREBY APPLYING THE NET PROFIT RATE. AS DISCUSSED IN THE EARLIER PART OF THE ORDER , THE MAIN REASONS FOR REJECTION OF BOOKS OF ACCOUNTS BY THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(APPEAL S) HAS BEEN ; FIRSTLY, THERE WAS A DIFFERENCE IN THE FIGURES MENTIONED IN THE AUDIT REPORT DATED 27.10.2007 ( WHICH ACCORDING TO THE ASSESSEE DID NOT EXIST AND WAS MENTIONED IN THE RETURN OF INCOME BY MISTAKE ) AND THE AUDIT REPORT DATED 17.9.2007 WHICH WAS FILED BEFORE THE ASSESSING OFFICER BY THE ASSESSEE ,(WHICH ACCORDING TO THE ASSESSEE CONTAINED TRUE AND CORRECTED AUDITED F INANCIAL STATEMENT ) ; AND SECONDLY, THE ASSESSEE COULD NOT PRODUCE THE BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER OR BEFORE THE LD . CIT(APPEALS). ONE MORE ISSUE WHICH HAS BEEN RAISED BY THE ASSESSEE BEFORE THE FIRST APPELLATE PROCEEDINGS AND ALSO BEFORE US IS THAT THE PAGE 10 OF 24 ASSESSEE HAD FILED REVISED RETURN OF INCOME ON 15.11.2007 BY THE R EGISTERED POST AD, HOWEVER, THE DEPARTMENT HAS VEHEM ENTLY DENIED FILING OF ANY SUCH REVISED RETURN AND ALSO SAME WAS NOT AVAILABLE ON THE RECORDS OF THE ASSESSING OFFICER . ONCE THE FACTUM OF REVISED RETURN HAS BEEN DENIED BY THE AO AND WAS NOT FOUND ON RECORDS, THEREFORE, WE ARE REFRAINING FROM ENTERING INT O THE CONTROVERSY WHETHER REVISED RETURN WAS ACTUALLY FILED BY THE ASSESSEE AND WHETHER THE ASSESSMENT SHOULD HAVE BEEN MADE ON THE BASIS OF REVISED RETURN OR NOT . ACCORDINGLY, WE ARE REJECTING THE CONTENTION RAISED BY THE ASSESSEE THAT THE ASSESSMENT SHOU LD HAVE BEEN MADE ON THE BASIS OF ALLEGED REVISED RETURN FILED ON 15.11.2007. 10. SO FAR AS THE REJECTION OF BOOKS OF ACCOUNTS ARE CONCERNED, WE ENDORSE THE FINDINGS OF THE AUTHORITIES BELOW THAT IN ABSENCE OF BOOKS OF ACCOUNTS BEING PRODUCED AT ANY STAGE , THE CORRECTNESS AND COMPLETENESS OF THE ACCOUNT AS WELL AS THE TRADING RESULTS CANNOT BE RELIED UPON , ESPECIALLY IN LIGHT OF CERTAIN DISCREPANCIES FOUND IN THE FIGURES MENTIONED IN THE RETURN OF INCOME AND THE AUDITED BALANCE SHEET PRODUCED BEFORE THE AO . UNDER THESE FACTS AND CIRCUMSTANCES WHEN THE ALLEGED DIFFERENCE IN THE FIGURES COULD NOT BE RECONCILED FROM THE REGULAR BOOKS OF ACCOUNT, THE ONLY RECOURSE LEFT IS TO REJECT THE ACCOUNTS AND APPLY NET PROFIT RATE SO AS TO DETERMINE THE FAIR AND REASONABLE INCOME FOR THE RELEVANT PREVIOUS YEAR FROM THE BUSINESS. AS DISCUSSED HERE IN ABOVE , THE ASSESSING OFFICER HAD APPLIED NET PROFIT RATE AT 5% OF THE TOTAL TURNOVER OF RS. 11,17,99,654/ - WHICH WORKED OUT TO RS. 55,89,983/ - AND AFTER REDUCING T HE NET PROFIT SHOWN BY THE ASSESSEE AT RS. 17,43,373/ - THE DIFFERENTIAL AMOUNT OF RS. 38,46,610/ - WAS ADDED BY THE ASSESSING OFFICER. ON THE OTHER HAND, THE LD . CIT (APPEALS) HAS HELD THAT THOUGH THE NET PROFIT RATE PAGE 11 OF 24 WHICH IS TO BE APPLIED IN THIS YEAR SHOU LD BE @ 2.02% WHICH IS THE NET PROFIT RATE APPLIED BY THE ASSESSING OFFICER IN THE IMMEDIATELY PRECEDING YEAR (A.Y. 2006 - 07) AND THUS, THE NET PROFIT WORKED OUT BY HIM WAS AT RS. 5,14,980/ - . HOWEVER, HE WENT FURTHER TO TAKE INTO ACCOUNT THE DIFFERENCE OF THE FIGURE OF RS. 38,60,717/ - WHICH ACCORDING TO THE ASSESSING OFFICER AS WELL AS LEARNED CIT(APPEALS) WAS THE DIFFEREN CE IN AMOUNT BETWEEN THE FIGURES MENTIONED IN THE RETURN OF INCOME AND THE AUDITED BALANCE SHEET DAT ED 17.9.2007. SUCH DIFFERENCE OF AMOUNT HAS BEEN PRESUMED TO BE ON ACCOUNT OF NON - EXISTING LIABILITIES WHICH ARE UNVERIFIABLE IN ABSENCE OF BOOKS OF ACCOUNTS. ULTIMATELY, THE ADDITION MADE BY THE ASSESSING OFFICER (AT RS. 38,46,610/ - ) AS WELL AS SUSTAIN ED BY THE LD . CIT (APPEALS ) (AT RS. 38,60,717/ - ) BY AND LARGE COMES TO THE SAME FIGURE. WITHOUT DWELLING UPON THE CONTROVERSY AS TO WHETHER ANY AUDIT REPORT OR BALANCE SHEET DATED 27.10.2007 EXISTED OR NOT ; WE FIND THAT IT IS UNDENIABLE FACT THAT THERE WAS CE RTAIN DISCREPANC Y IN THE FIGURES MENTIONED IN THE RETURN OF INCOME AND THE AUDIT REPORT DATED 17.9.2007 , WHICH I N ABSENCE OF BOOKS OF ACCOUNTS BEING PRODUCED, COULD NOT BE RECONCILED BY THE ASSESSEE AT ANY STAGE. THEREFORE, IN OUR OPINION THE APPLICATION O F NET PROFIT RATE OF 5% ON TURNOVER OF RS. 11,17,99,654/ - AS APPLIED BY THE ASSESSING OFFICER WILL SUBSUME ALL SUCH DIFFERENCE IN THE FIGURES AND WOULD BE QUITE REASONABLE TO ESTIMATE THE INCOME OF THE ASSESSEE FROM THE BUSINESS . SO FAR AS THE APPLICABILITY OF NET PROFIT RATE AT 2.02% BY THE LD . CIT (APPEALS) BY TAKING INTO ACCOUNT EARLIER YEAR S RATE OF NET PROFIT, WE ARE OF THE OPINION THAT, THIS YEAR DUE TO EXCEPTIONAL CIRCUMSTANCES AS DISCUSSED ABOVE AND THE FACTUM OF TWO BALANCE SHEETS MENTIONING DIFFER ENT FIGURES AND ITS IR RECONCILABILITY BY THE ASSESSEE VIS - - VIS THE BOOKS OF ACCOUNT , T HE SAME YARDSTICK OF APPLYING THE NET PROFIT RATE PAGE 12 OF 24 OF THE EARLIER YEARS CANNOT BE ACCEPTED. ACCORDINGLY, WE HOLD THAT THE NET PROFIT RATE OF 5% ON THE TURNOVER FOR DETERM INING THE INCOME FROM BUSINESS WILL SUFFICE AND WILL SUBSUME ALL SUCH DISCREPANCIES IN THE BALANCE SHEET OR TRADING ACCOUNT. THUS, AFTER GIVING EFFECT TO THE NET PROFIT ALREADY DISCLOSED IN THE RETURN OF INCOME AT RS. 17,43,373/ - THE NET ADDITION MADE BY T HE ASSESSING OFFICER AT RS. 38,46,610/ - WILL GET SUSTAINED INSTEAD OF RS. 38,60,717/ - AS CONFIRMED BY LD. CIT(APPEALS) . ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 1 1 . IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMISSED. 1 2 . NOW, W E WILL TAKE THE REVENUE S APPEAL WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED: - 1. THAT WHETHER THE LD. CIT (A ) WAS RIGHT IN HOLDING THAT THE ASSESSEE HAS DULY DISCHARGED THE BURDEN OF PROOF PLACED ON HERE IN SATISFACTORILY EXPLAINING THE GENUINENESS OF FORM NO. 15 - J? 2. WHETHER THE LD. CIT (A) WAS CORRECT IN HOLDING THE VIEW THAT MAINTENANCE OF REGISTER CONTAINING RECEIPTS OF FORM NO. 15 I BY THE ASSESSEE CANNOT BE HELD AGAINST THE ASSESSEE? 3. WHETHER DUE TO NON - MAINTENANCE OF THE REGISTER CONTAINING RECEIPTS OF FORM NO. 15 - 1, THE CLAIM OF THE ASSESSEE CAN STILL BE ALLOWED IN THE ABSENCE OF INDEPENDENT CORROBORATI ON OF FACTS BY THE AO. 4. WHETHER THE PREPONDERANCE OF PROBABILITIES AS DEFUSED FROM THE FACTS OF THE CASE DO NOT WARRANT TAKING AN ADVERSE VIEW AGAINST THE ASSESSEE? 5. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOR EGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. PAGE 13 OF 24 1 3 . AS STATED IN THE EARLIER PART OF THE ORDER , THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPORTATION, WHEREIN HE WAS REQUIRED TO HIRE TRUCKS FROM VARIOUS INDIVIDUAL S AND TRANSPORT CONTRACTORS. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SHOWN PAYMENT OF RS. 10 ,78,86,667 / - TOWARDS FREIGHT PAID TO SUCH TRANSPORTERS . THE LD. ASSESSING OFFICER REQUIRED THE ASSESSEE TO FURNISH DETAILS OF TDS DEDUCTED U/S 194C IN THE GOVERNMENT ACCOUNT ON THE PAYMENT OF AFORESAID FREIGHT AMOUNT. IN RESPONSE , THE ASSESSEE SUBMITTED THAT HE WAS DEALING WITH THE SMALL INDIVIDUAL TRUCK OWNERS MOST OF WHOM OWNED 1 TO 2 TRUCKS IN THEIR NAMES . FURTHER IT WAS SUBMI TTED THAT ASSESSEE HA D OBTAINED F ORM NO. 15 - I FROM ALL INDIVIDUAL TRUCK OWNERS AND IN LIEU THEREOF HE HAD DEPOSITED F ORM NO. 15 - J WITH THE OFFICE OF COMMISSIONER OF INCOME TAX XVII, NEW DELHI WITHIN THE DUE DATE. THE ASSESSING OFFICER FURTHER REQUIRED TO FURNISH PARTY WISE DETAILS OF FREIGHT PAYMENT , TDS DEDUCTED AND TO FURNISH DETAILS OF CASES IN WHICH FORM 15 - J WAS DEPOSITED IN CONCERNED OFFICE OF THE CIT. IN RESPONSE AGAIN THE ASSESSEE POINTED OUT THAT THE COPY OF THE FORM 15 - J WAS DULY FILED MUCH WITHIN DUE DATE AND THE FILING OF THE FORMS IS DULY ACKNOWLEDGED BY STAMP OF THE OFFICE OF CIT XVII, NEW DELHI. THE CO P Y OF THE SAID FORM DULY STAMPED AND RECEIVED IN THE OFFICE OF CIT WAS ALSO FILED BEFORE THE ASSESSING OFFICER FOR THE SA KE OF READY REFERENCE AND RECORD . THE ASSESSING OFFICER NOTED THAT THOUGH THE F ORM NO. 15 - J WAS STAMPED BY THE OFFICE OF CIT BUT IT DID NOT BEAR THE SIGNATURE OF THE RECIPIENT AND THE DIARY NUMBER , AND PROMPTED BY THIS FACT HE MADE ENQUIRY FROM THE OFFICE OF CIT - XVII (TDS) VIDE LETTER DATED 20.11.2009 AND ALSO DEPUTED HIS INSPECTOR FOR THIS PURPOSE. IN RESPONSE TO SUCH LETTER, THE I . T . O . (H Q ) OF CIT (TDS), NEW PAGE 14 OF 24 DELHI ISSUED A LETTER DATED 11.12.2009 THE CONTENT OF WHICH FOR SAKE OF READY REFERENCE IS BEING R EPRODUCED HERE UNDER: - KINDLY REFER TO THE SUBJECT CITED ABOVE. IN THIS REGARD, I AM DIRECTED TO SUBMIT THAT THE IMPRESSION OF STAMP ON THE FORM SUBMITTED IN THE MONTH OF MAY, 2007 SHOWS THAT THE FORM NO. 15J WAS FILLED BY THE ASSESSEE IN THE OFFICE OF CIT - XVII, BUT THE REGISTER IN WHICH WE MAKE THE ENTRY OF ALL THE FORM OF 15J IS NOT TRACEABLE AT THIS MOME NT. IT MAY BE POSSIBLE THAT WHILE SHIFTING THIS OFFICE FROM MAYOR BAAN TO LAME NAGGER IN THE YEAR 2007, THE SAID REGISTER WOULD BE MISPLACED. IT IS ALSO POSSIBLE THAT IT MIGHT HAVE BEEN DESTROYED IN THE FIRE AT MAYOR BAAN. HENCE, I AM UNABLE TO VERIFY THE FORM SUBMITTED IN THE MONTH OF MAY, 2007 RELATED TO A.Y. 2007 - 08. 14. AFTER RECEIVING THE SAID REPLY , THE ASSESSING OFFICER FURTHER REQUIRED THE ASSESSEE TO SUBMIT SUPPORTIN G EVIDENCE REGARDING FILING OF F ORM 15 - J IN OFFICE OF CIT. THE ASSESSEE S REPLY B EFORE THE ASSESSING OFFICER IN THIS REGARD IS REPRODUCED WHICH EXPLAIN S THE ENTIRE CASE OF THE ASSESSEE: - WITH REFERENCE TO YOUR CAPTIONED NOTICE & SUBSEQUENT DISCUSSION IN THE MATTER, WE WISH THAT THE COPY OF THE FORM 15 - J SUBMITTED BY US VIDE OUR LETTER DT.16.11.2009, IS THE TRUE COPY OF THE FORM 15 - J SUBMITTED WITH THE OFFICE OF CIT - XVII, NEW DELHI & THE ORIGINAL OF THE SAME CAN BE PRODUCED FOR YOUR VERIFICATION AT ANY TIME, IF DEMANDED. FURTHER, IT IS SUBMITTED THAT THERE IS NO PRACTICE OF ISSUIN G ANY SIGNED RECEIPT OR DIARY NUMBER ON THE SPOT BY THE DEPTT O N SUBMISSION OF SUCH DOCUMENTS. TO FURTHER SUBSTANTIATE OUR THIS CLAIM, WE ARE ENCLOSING THEREWITH A COPY OF FORM 15 - J SUBMITTED BY ONE OF THE OTHER TRANSPORT CONTRACTOR TO THE SAME DEPTT. & TH E SAME ALSO BEARS ONLY THE STAMP & NO SIGNATURE OF DIARY NO ARE GIVEN IN THIS CASE ALSO. HOPE, THE ABOVE SHALL FULLY SATISFY YOUR GOOD SELF IN THE MATTER. FURTHER, WE ENCLOSE HEREWITH A FEW COPIES OF PAGE 15 OF 24 FORM 15 - I RECEIVED BY US FROM VARIOUS TRUCK OWNERS, ON T HE BASIS OF WHICH, E N TRIES H AVE BEEN M ADE IN FORM 15 - J, SUBMITTED AS ABOVE. WE ARE IN RECEIPT OF FORM 15 - I IN RESPECT OF EVERY TRUCK OWNER, WHOSE NAME/ENTRY APPEARS IN FORM 15J SUBMITTED WITH THE DEPTT. HOWEVER, WE DO NOT MAINTAIN ANY REGISTER ETC. FOR REC EIPT OF ANY SUCH FORMS, AS MENTIONED IN YOUR CAPTIONED NOTICE. HOWEVER THE LD. ASSESSING OFFICER OBSERVED THAT SINCE THE ASSESSEE DOES NOT MAINTAIN RECORDS FOR RECEIPT OF FORM 15 - I, THEREFORE, THE DATE OF RECEIPT OF THESE FORMS IN HIS OFFICE CANNOT BE ES TABLISHED. HE FURTHER NOTED THAT IN SOME OF THE CASES OF OTHER TRANSPORTERS, THE STAMP OF THE OFFICE OF CIT XVII IN F ORM 15J WAS IN HINDI LANGUAGE , WHEREAS THE STAMP ON ASSESSEE S COPY BEARS THE STAMP IN ENGLISH LANGUAGE. FROM THESE FACTS THE AO DEDUCED THAT THE CLAIM OF THE ASSESSEE THAT HE HAS FILED 15 - J IN THE OFFICE OF CIT XVII IS NOT ACCEPTABLE. ACCORDINGLY, HE HELD THAT OUT OF THE TOTAL FREIGHT PAID THE ASSESSEE HAS FAILED TO DEDUCT TDS U/S 194C ON THE FREIGHT PAYMENT OF RS. 10,37,53,217/ - AND ACCO RDINGLY , HE DISALLOWED THE ENTIRE PAYMENT AFTER INVOKING THE PROVISIONS OF SECTION 40(A)(IA). 15. BEFORE THE LEARNED CIT (APPEALS) , THE MAIN CONTENTION OF THE ASSESSEE WAS THAT THERE WAS NO VIOLATION OF SECTION 194C OR RULE 29D, AND THEREFORE, THE ASSESSEE COULD NOT BE HELD TO BE LIABLE FOR DEDUCTING ANY TAX U/S 194C. T HE ASSESSEE MADE VERY ELABORATE AND DETAILED SUBMISSIONS ON MERITS AS WELL AS REFERRED TO CATENA OF JUDICIAL DECISIONS WHICH HAVE BEEN INCORPORATED IN THE APPELLATE ORDER FROM PAGES 19 TO 34. THE S UM AND SUBSTANCE OF ASSESSEE S CONTENTION ON MERITS HAS BEEN THAT THE DOCUMENTS SUBMITTED WITH ANY INCOME TAX AUTHORITIES IN DAK , WHETHER IN THE OFFICE OF CIT PAGE 16 OF 24 (APPEALS) OR CIT OR ANY OTHER DEPARTMENTAL AUTHORITIES, IT ONLY BEARS DATE STAMP WITH OFFICE SEAL WITHOUT THERE BEING ANY SIGNATURE OF DEALING ASSISTANT OR CLERK RECEIVING THE DAK; AND NO SUCH DAK / DIARY NUMBER IS EVER GIVEN ON THE OFFICE CO P Y OF THE DOCUMENT/S SUBMITTED IN THE DAK. IN ORDER TO PROVE THIS POINT , THE ASSESSEE ENCLOSED NUMEROUS COPIES OF DOCUMENTS RECEIVED IN THE OFFICE OF VARIOUS INCOME TAX AUTHORITIES INCLUDING THE OFFICE OF SAME CIT. AS REGARDS, THE IMPRESSION OF STAMP IN ENGLISH AND HINDI LANGUAGE, THE ASSESSEE SUBMITTED THAT THE STAMP IN USE I N A PARTICULAR YEAR MAY BE DIFFERENT AND MAY HAVE A DIFFERENT IMPRESSION EITHER IN ENGLISH OR IN HINDI LANGUAGE. IN ORDER TO PROVE THIS POINT THE ASSESSEE SUBMITTED DOCUMENTS PERTAINING TO THE A.Y. 2009 - 10 WHERE THE SEAL/STAMP IMPRESSION WAS IN HINDI LANGU AGE. THUS, IT WAS SUBMITTED THAT IT CANNOT BE INFERRED THAT THE STAMP IN TWO DIFFERENT LANGUAGES FROM THE SAME OFFICE WILL HAVE ANY MATERIAL DIFFERENCE. POINT WISE REBUTTAL BY THE ASSESSEE ON THE ISSUE RAISED BY THE ASSESSING OFFICER HAS BEEN INCORPORATED AND DEALT BY THE LD. CIT (APPEALS) IN DETAIL IN THE APPELLATE ORDER. 16 . AFTER CONSIDERING THE ENTIRE SUBMISSIONS AND MATERIAL ON RECORD, THE L D. CIT (APPEALS), CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER AND IN RESPONSE THE ASSESSING OFFICER BY AND LARGE REITERATED AND THE SAME OBSERVATIONS WHICH WAS MADE IN THE ASSESSMENT ORDER. THE LD CIT (APPEALS) , AFTER CONSIDERING THE ENTIRE GAMUT OF MATERIAL PLACED ON RECORD, HELD THAT DOUBT CASTED BY THE ASSESSING OFFICER ON THE AUTHENTICITY OF SUBMITT ING OF F ORM 15 - J CANNOT BE SUSTAINED , BECAUSE THE ASSESSEE WAS ABLE TO REBUT EACH AND EVERY OBJECTION/ POINT RAISED BY THE ASSESSING OFFICER DULY SUPPORTED BY EVIDENCE IN THE FORM OF NUMEROUS DOCUMENTS BOTH PAGE 17 OF 24 PERTAINING TO HIM AS WELL AS OTHER ASSESSEES TO SUBSTANTIATE THAT THERE IS ONLY DATE AND STAMP IMPRESSION WITHOUT ANY SIGNATURE OF DEALING ASSISTANT OR ANY DIARY NUMBER. LD. CIT (A) FURTHER OBSERVED THAT NOTHING COULD BE BROUGHT ON RECORD BY THE AO WITH REGARD TO THE ANY DIFFERENT STANDARD PRACTICE BEIN G FOLLOWED IN THE OFFICE OF CONCERNED CIT AND EVEN AFTER THE ENQUIRY HAS BEEN MADE FROM THAT OFFICE , AO S ALLEGATION COULD NOT BE ESTABLISHED OR PROVED . THEREFORE, HE HELD T HAT AUTHENTICITY OF F ORM 15 - J CANNOT BE DOUBTED ON THIS GROUND. LD. CIT (A) ALSO RE FERRED TO LETTER RECEIVED FROM ITO (HQ) CONTENT OF WHICH HA S ALREADY BEEN REPRODUCED ABOVE AND TAKING DUE NOTE OF SUCH LETTER HE HELD THAT THE LACK OF VERIFICATION OF ASSESSEE S F ORM WAS BECAUSE OF THE FACT THAT THE RELEVANT RECORDS WERE NOT AVAILABLE IN T HE OFFICE CONCERNED OFFICE OF CIT DUE TO VARIOUS REASONS MENTIONED IN THE SAID LETTER. HENCE LACK OF VERIFICATION OF SUBMISSION OF F ORM WAS BECAUSE OF NON - AVAILABILITY OF RELEVANT RECORD IN THE OFFICE OF CIT WHICH CANNOT BE HELD AGAINST THE ASSESSEE. HE AL SO MADE REFERENCE TO THE IMMEDIATELY PRECEDING A.Y. 2006 - 07 WHEREIN HIS PREDECESSOR ON SIMILAR FACTS AND CIRCUMSTANCES HAD DELETED THE SAID DISALLOWANCE. ACCORDINGLY, THE DISALLOWANCE MADE U/S 40(A) (IA) BY THE AO FOR SUMS AGGREGATING TO RS. 10,37,53,217/ - WAS DELETED BY THE FIRST APPELLATE AUTHORITY . 17. BEFORE US, THE LD. CIT DR, RELYING UPON THE ORDER OF THE ASSESSING OFFICER SUBMITTED THAT , ONCE A DOUBT H AS CREATED BY THE ASSESSING OFFICER THAT FORM 15 - J HAS NOT BEEN FILED BEFORE THE OFFICE OF CONCERNED CIT, THEN THE ASSESSEE SHOULD HAVE SUBSTANTIATED BY OTHER EVIDENCES AS DISCUSSED BY THE ASSESSING OFFICER. THE ASSESSEE WAS NOT MAINTAINING ANY REGISTER FOR RECEIVING OF FORM 15 - I FROM INDIVIDUAL TRUCK OW NERS. APART FROM THAT, NO INDEPENDENT PAGE 18 OF 24 CORROBORATION OF FILLING OF FORM 15 - J COULD BE ESTABLISHED. HE THUS, SUBMITTED THAT IN THE INTEREST OF JUSTICE , MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER SO THAT THIS ISSUE CAN BE ENQUIRED UPO N PROPERLY. 18. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, SH RI VIVEK BANSAL, SUBMITTED THAT SO FAR AS ASSESSEE IS CONCERNED, HE HA D DISCHARGED HIS ONUS BY OBTAINING F ORM 15 - I FROM ALL THE INDIVIDUALS TRUCK OWNERS AND THEREAFTER SUBMITTING F ORM 15 - J BEFORE THE DUE DATE AS PRESCRIBED UNDER RULE 29D WHICH IS ON OR BEFORE 30 TH JUNE FOLLOWING THE FINANCIAL YEAR . HERE IN THIS CASE, THE SAID F ORM WAS FILED IN THE MONTH OF MAY, 2007 IN THE OFFICE OF CIT XVII, NEW DELHI. THE RECEIPT OF WHICH HE POINTED OUT IS APPEARING AT PAGE 69 OF THE PAPER BOOK. THE ASSESSEE NOT ONLY HAD FILED THE COPY OF F ORM 15J BUT IT WAS DULY ACKNOWLEDGED BY THE SEAL OF THE OFFICE OF CONCERNED CIT XVII. THE ORIGINAL COPY OF THE SAME WAS ALSO FILED BEFORE THE ASSESSING O FFICER ALSO. THE ASSESSING OFFICER HAS DOUBTED THE FILING OF SUCH F ORM 15 - J MAINLY ON THE GROUND THAT IT DOES NOT BEAR THE DIARY NUMBER AND INITIAL OF THE CLERK. THIS FACTUAL ASPECT HAS BEEN DULLY DEMONSTRATED BEFORE THE LD . CIT (APPEALS) THAT THERE IS NO SUCH PRACTICE OF RECEIVING ANY DIARY NUMBER OR ANY INITIAL OF THE CLERK IN THE DAK COUNTER WHILE FILING ANY DOCUMENTS BEFORE THE DEPARTMENTAL AUTHORITIES. MOREOVER, WHEN ENQUIRY WAS MADE FROM THE OFFICE OF CONCERNED CIT, THE ITO (H Q ) HAD STATED THAT THE RE CORDS WERE NOT AVAILABLE EITHER DUE TO SHIFTING OF THE OFFICE OR MUST HAVE BEEN DESTROYED IN THE FIRE THAT HAD BROKE DOWN IN THE MAYUR BHAWAN OFFICE IN THE YEAR 2007. THIS LETTER DOES NOT INDICATE IN ANY MANNER THAT THE ASSESSEE H AD NOT FILED F ORM 15 - J IN THE OFFICE OF CIT - XVII . REGARDING USAGE STAMP IN HINDI OR ENGLISH LANGUAGE ALSO THE PAGE 19 OF 24 ASSESSEE HA D ADDUCED AMPLE MATERIAL BEFORE THE LD . CIT (APPEALS) THAT FROM THE SAME OFFICE DIFFERENT SEALS HAVE BEEN USED IN HINDI AND ENGLISH ALSO, WHICH FACT HAS BEEN DULY APPRECIATED BY LD. CIT (APPEALS) WHO HAS GIVEN A CATEGORICAL FINDING THAT THIS DOES NOT MAKES ANY MATERIAL DIFFERENCE. BEFORE US, IN SUPPORT OF ALL HIS CONTENTIONS HE HAS FILED DETAILED WRITTEN SUBMISSIONS WHICH IS PART OF PAPER BOOK AND STRONGLY REL IED UPON THE SAID SUBMISSIONS AND ALSO FINDINGS GIVEN IN THE ORDER OF L D. CIT (APPEALS). 1 9 . WE HAVE HEAD THE RIVAL SUBMISSIONS, PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL REFERRED TO BEFORE US. THE ENTIRE CONTROVERSY FOR THE DISALLOWANCE U/S 40(A)(IA) IS ON THE GROUND THAT THE ASSESSEE HAD NOT DEDUCTED TDS U/S 194C ON THE FREIGHT PAYMENT MADE TO VARIOUS INDIVIDUAL TRANSPORTERS OR TRANSPORT CONTRACTORS . THE ASSESSEE S CASE HAS BEEN THAT, THESE TRUCK OWNERS OWN 1 TO 2 TRUCKS FROM WHOM HE HAS OBTAINED FORM 15 - I FROM ALL THE INDIVIDUALS/TRANSPORTERS. THEREAFTER, HE HAD DEPOSITED FORM 15 - J IN THE OFFICE OF CIT - XVII (TDS) BEFORE THE DUE DATE OF 30 TH JUNE, THAT IS, IN THE MONTH OF MAY, 2007 ITSELF. THE CORE ISSUE HERE IS, WHETHER THE ASSESSEE HAD FURNISHED F ORM 15 - J BEFORE THE OFFICE OF CIT XVII, NEW DELHI OR NOT . IN SUPPORT OF FILING OF F ORM 15 - J, THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND ALSO BEFORE US HAD VEHEMENTLY CONTENDED THAT THE PRESCRIBED F ORM 15 - J UNDER SUB RULE (3) OF RULE 29D WAS FILED IN THE MONTH OF MAY, 2007 ITSELF WHICH WAS MUCH BEFORE THE DUE DATE OF 30 JUNE, 2007. THE SAID FORM BEARS THE STAMP OF OFFICE OF THE CIT - XVII, NEW DELHI , WHICH IS EVIDENT FROM THE COPY OF FORM 15 - J AVAILABLE AT PAGE 69 OF THE PAPER BOOK . THE LD. ASSESSING OFFICER CASTED THE DOUBT ON FILING OF SUCH FORM15 - J ON THE GROUND THAT THE SEAL APPENDED ON THE FORM DOES NOT BEAR THE PAGE 20 OF 24 SIGNATURE OF THE RECIPIENT AND NO DIARY NUMB ER HAS BEEN GIVEN. H E THEREFORE, TRIED TO MA K E ENQUIRY FROM THE OFFICE FROM CIT - XVII WHETHER A NY SUCH FORM WAS DEPOSITED/ SUBMITTED BY THE ASSESSEE. IN RESPONSE, A LETTER WAS RECEIVED FROM ITO (H Q ) OF CIT - XVII, DULY ACKNOWLEDGING THAT F ORM 15 - J SHOWS THAT IT WAS FILED IN THE OFFICE OF CIT - XVII, NEW DELHI BUT THE REGIST ER IN WHICH THE ENTRY OF ALL THE F ORM 15J WAS MADE IS NOT TRACEABLE EITHER DUE TO SHIFTING OF THE OFFICE OR DUE TO FIRE THAT BROKE DOWN IN THE OFFICE THAT YEAR . THUS , THE ITO (H Q ) HAD CLARIFIED THAT NOT ONLY IN THE CASE OF THE ASSESSEE BUT THE ENTIRE REGIST E R WHEREIN ENTRY OF ALL F ORM 15 - J W ERE MAINTAINED WAS NOT TRACEABLE. THE LD. ASSESSING OFFICER DESPITE RECEIVING SUCH LETTER ENTIRELY SHIFTED THE ONUS UPON THE ASSESSEE AS TO WH Y HE WA S NOT MAINTAINING ANY KIND OF REGISTER FOR RECEIVING F ORM 15 - I. SUCH AN OBSERVATION MADE BY THE ASSESSING OFFICER IS SAN S ANY LEGAL REQUIREMENT OR ANY THERE IS ANY SUCH CONDITION UNDER THE PROVISIONS OF LAW OR UNDER ANY R ULE THAT ASSESSEE IS REQUIRED TO MAINTA IN SUCH REGISTER FOR RECEIVING OF F ORM 15 - I. ON C E THAT IS SO , THEN HE CANNOT CAST A NEW OBLIGATION UPON THE ASSESSEE AND DISBELIEVE THE FILING OF FORM 15 - J SUBMITTED BY THE ASSESSEE . SO FAR AS THE LACK OF DIARY NUMBER AND SIGNATURE OF REC IPIENT IN THE OFFICE COPY OF FORM 15 - J FILED BY THE ASSESSEE, IT WAS AMPLY DEMONSTRATED BY THE ASSESSEE BEFORE THE LD. CIT (APPEALS) BY BRINGING PLETHORA OF MATERIAL IN THE FORM OF DOCUMENTS FILED BEFORE THE VARIOUS INCOME TAX AUTHORITIES CLEARLY SHOWING T HAT WHEN EVER ANY DOCUMENT IS SUBMITTED IN THE DAK OF ANY INCOME TAX AUTHORITIES, THEN SAME IS ACKNOWLEDGED BY STAMPING OF THE SEAL WITH DATE OF THE OFFICE OF THE CONCERNED AUTHORITY STAMP AND THERE IS NO DIARY NUMBER OR OUR SIGNATURE OF RECIPIENT APPEARI NG IN THE OFFICE OF COPY OF THE DOCUMENTS WHICH REMAINS WITH THE ASSESSEE. ON THIS POINT THE LD . CIT (APPEALS) HAS GIVEN HIS PAGE 21 OF 24 DETAILED FINDING AND ALSO REFERRED TO ENQUIRY FROM THE OFFICE OF CIT - XVII, NEW DELHI. HIS RELEVANT OBSERVATION IN THIS REGARD IS E VIDENT FROM THE PARA 28 OF THE APPELLATE ORDER, WHICH IS FOR THE SAKE OF READY REFERENCE IS REPRODUCED HERE UNDER: - 28. THUS, FROM A PERUSAL OF THE ABOVE MENTIONED FACTS IT IS SEEN THAT THE PRIMARY REASON WHY THE AO DOUBTED THE AUTHENTICITY) OF THE FORM I5J STATED TO HAVE BEEN F ILED IN THE OFFICE OF THE CIT - XV II , NEW DELHI WAS THAT THERE WAS NO SIGNATURE OF THE RECIPIENT AND THERE WAS NO DIARY NO, ON THE FORM AND THERE WAS A D ATER STAMP IMPRESSION . T HE APPELLANT HAS FILED COPIES O F NUMEROUS DOCUMENTS BOTH PERTAINING TO HIM AS WELL AS OTHER ASSESSEES WHERE THERE ARE O N LY D ATER STAMP IMPRESSIONS WITHOUT AN Y SIGNATURE OF THE DEALING ASSISTANT OR A NY DIAR Y NO . MOREOVER, NOTHING COULD BE BROUGHT ON RECORD WITH REGA R D TO THE STANDARD PRAC TICE BEING FOLLOWED IN THE OFFICE OF THE CONCERNED CIT IN SPITE OF INQUIRIES HAVING BEEN MADE FROM THAT OFFICE. THEREFORE AUTHENTICITY OF FORM NO. 15 J FILLED B Y THE APPELLANT SHOULD NOT BEEN DOUB T ED MERELY ON THIS GROUND, I.E. THERE BEING NO SIGNATURE OF THE DEALING ASSIST ANT A ND NO DIARY NO. LD. CIT (A) ALSO REFERRED TO THE LETTER SENT BY ITO (HQ) AND HELD THAT LACK OF VERIFICATION OF ASSESSEE S FORM WAS NOT BECAUSE OF THE ASSESSEE HAD FAILED TO FURNISH THE DOCUMENTS, ALBEIT THE RELEVANT RECORDS WERE NOT TRACEABLE IN THE OFFICE OF CONCERNED CIT AND THEREFORE, IT CANNOT BE HELD AGAINST THE ASSESSEE. THIS FINDING AND OBSERVATION OF LD. CIT (APPEALS) WE FULLY ENDORSED AND IS HEREBY AFFIRMED. PAGE 22 OF 24 AS REGARD BEARING OF STAMP IN HINDI L ANGUAGE IN CASE OF SOME OTHER ASSESSEES FROM THE SAME OFFICE OF CIT XVII , WHEREAS IN THE CASE OF ASSESSEE THE STAMP I S IN ENG LISH , T HIS AGAIN IS A VERY BASELESS OBSERVATION OF THE AO, BECAUSE WHETHER STAMPING OF THE SEAL IS IN ENGLISH LANGUAGE OR HINDI BY THE SAME OFFICE DOES NOT MAKES ANY MATERIAL DIFFERENCE AND AT LEAST THIS CANNOT BE MADE THE BAS IS FOR DOUBTING THE GENUINENESS OF FILING OF F ORM 15 - J BY THE ASSESSEE WHICH BEARS THE STAMP IN ENGLISH LANGUAGE PARTICULARLY IN LIGHT LETTER OF THE ITO (H Q ) FR OM THE OFFICE OF CIT XVII NEW DELHI WHO HAS ACKNOWLEDGED THAT F ORM 15 - J HAS BEEN FILED IN THE OFFICE WHICH BEARS THE STAMP OF THE OFFICE . 20. THUS, WE DO NOT FIND ANY REASON TO DEVIATE FROM THE FINDING S AND THE CONCLUSION OF THE LD. CIT (APPEALS) ON THIS SCORE WHICH IS BASED ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD , ESPECIALLY WHEN WE ALSO CONCUR INDEPENDENTLY WITH SAME REASONING AFTER ANALYZING THE SAME MATERIAL PLACED BEFORE US . LASTLY, AS REGARD THE SUBMISSION OF THE LD. CIT DR TH AT THIS MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO, WE DO NOT FIND ANY MERIT IN SUCH A CONTENTION, FIRSTLY, BECAUSE ALL THE OBJECTION S RAISED BY THE AO HAS BEEN ADDRESSED BY THE LD. CIT(A) AND ALL THE MATERIAL FILED BY THE ASSESSEE IN SUPPORT HAV E BEEN DULY CONSIDERED NOT ONLY BY THE LD. CIT(A) BUT ALSO BY THE AO; AND SECONDLY, ALREADY REMAND REPORT HAS BEEN ASKED FROM THE AO ON THE SAME MATERIAL AND EVIDENCES, WHO HAS EVEN SUBMITTED HIS REMAND REPORT ON THIS ISSUE, THEREFORE, IT IS NOT A FIT CASE FOR REMAND. ACCORDINGLY , THE ORDER OF THE LD . CIT(APPEALS) DELETING THE SAID DISAL LOWANCE AGGREGATING TO RS. 10,37,53,217/ - IS UPHELD. CONSEQUENTLY, THE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. PAGE 23 OF 24 21 . IN THE RESULT, THE APPEAL OF THE ASSESSEE AS WELL AS APPEAL OF THE REVENUE IS DISMISSED . ORDER P RONOUNCED IN THE OPEN COURT ON 0 7 . 0 8 .201 7. ( G.D. AGRAWAL ) (AMIT SHUKLA) (PRESIDENT) (JUDICIAL MEMBER) DATED: 0 7 . 0 8 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR DATE DRAFT DICTATED ON 02 .0 8 .2017 DRAFT PLACED BEFORE AUTHOR 0 3 . 0 8 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE 0 7 . 8 .2017 PAGE 24 OF 24 SR.PS/PS KEPT FOR PRONOUNCEMENT ON 7 . 8 .2017 FILE SENT TO THE BENCH CLERK 7 . 8 .2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.