D.C.I.T Cir - 3 ,kolkata, Kolkata V. M/s Abhiyan Cargo Pvt Ltd., Kolkata

ITA 153/KOL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4898 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMITAVA BHATTACHARYA
• Assessee Lawyers: MANISH TIWARI
• Keywords: Reassessment proceedings
• Section: 194C; 147; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA (BEFORE SHRI P. M. JAGTAP, A.M. & SHRI S.S.VISWANET HRA RAVI, J.M.) ITA NO. 153/KOL/2013 : ASSTT. Y EAR : 2005-2006 DCIT, CIRCLE-3 KOLKATA VS M/S ABHIYAN CARGO PRIVATE LTD. PAN: AAECA-4385-P (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMITAVA BHATTACHARYA, JCIT, SR.DR RESPONDENT BY : SHRI MANISH TIWAR I, AR DATE OF HEARING : 11.02.2016 DATE OF PRONOUNCEMENT : 06-05-2016 ORDER PER SHRI S.S.VISWANETHRA RAVI, J.M . THIS APPEAL BY THE REVENUE IS ARISING AGAINST THE ORDER DATED 05.10.2012 PASSED BY THE CIT(A)-I, KOLKATA FOR THE ASSESSMENT YEAR 2005-06 FRAMED UNDER SECTION 143(3)/147/143(1) OF THE ACT. 2. THE REVENUE RAISED THE FOLLOWING GROUNDS: I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN ALLOWING THE RELIEF AMOUNTING TO RS.4,28,1 1,040/- TO THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE LD. A.O. SPECIFICALLY AND CLEARLY ADDRESSED AND REJECTED THE SUBMISSION O F THE ASSESSEE ON THE GROUND THAT VOUCHERS, BILLS WERE SELF-MADE AND FABRICATED. II) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) ERRED IN ALLOWING THE RELIEF TO THE ASSESSEE WITHOU T ALLOWING THE OPPORTUNITY OR CALLING FOR THE REMAND REPORT FROM T HE A.O. TO REBUT THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. 2 III) THAT THE DEPARTMENT CRAVES LEAVE TO ADD, ALTE R OR MODIFY ANY GROUND OF APPEAL DURING THE HEARING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A COMPANY AND ENGAGED IN TRANSPORT BUSINESS OF GOODS.. THE RETURN OF INCOME WAS FILED DECLARING THE TOTAL INCOME AT LOSS OF RS.32,90,270/- AND WAS ACCEPTED. THE AO INITIATED PROCEEDINGS U/SEC 147 OF THE ACT FOR THE REASON OF INCOME ESCAP ED ASSESSMENT AND SERVED NOTICES U/SEC 148 OF THE ACT. THE ASSESSEE CONTESTE D THE SAME THROUGH ITS LETTER DT:13-08-2008 TO TREAT THE EARLIER RETURN FILED IN NORMAL PROCEDURE AS RETURN U/SEC 147 OF THE ACT. 4. DURING THE REASSESSMENT PROCEEDINGS, THE AO FOUN D THAT THE ASSESSEE HAS CLAIMED RS.4,28,11,040/- AS EXPENDITURE UNDER THE H EAD LORRY HIRE CHARGES STATING THAT IT HAS PAID LORRY HIRE CHARGES MAINLY TO THE T RUCK DRIVERS BY ISSUING CONSIGNMENT NOTES AS REIMBURSEMENT OF TRIP EXPENSES AND THE SAID PAYMENTS WERE IN CASH AND DID NOT EXCEED RS.19,999/-. THE ASSESSE E PRODUCED ALL THE DETAILS RELATING TO LORRY HIRE CHARGES, LORRY HIRE PAYMENT STATEMENT, VOUCHERS AND BOOKS OF ACCOUNT. THE AO WAS OF THE OPINION THAT ALL THE DET AILS RELATING TO SAID CLAIM ARE SELF MADE BY THE ASSESSEE AND ASSESSEE FAILED TO PR ODUCE ANY DOCUMENTARY EVIDENCE ISSUED BY ANY THIRD PARTY RECEIPT OF SUCH CHARGES. AO ADDED THE ABOVE SAID AMOUNT FOR VIOLATION OF SECTION 194C OF THE AC T BY INVOKING SECTION 40(A)(IA) OF THE ACT. THE CIT-A DELETED THE SAID ADDITION AN D FOUND THAT THERE WAS NO VIOLATION OF SEC 194C OF THE ACT IN VIEW OF THE FAC T THAT ALL THE DETAILS RELATING TO LORRY HIRE CHARGES PAID TO VARIOUS DRIVERS DID NOT EXCEED RS.20,000/- EVIDENCING THE SAME RELEVANT VOUCHERS WERE AVAILABLE AND SAME WERE EXAMINED BY THE AO DURING REASSESSMENT PROCEEDINGS. 3 5. THE LD. DR SUBMITTED BEFORE US THAT THE ASSESSEE FAILED TO PRODUCE THE EVIDENCE BEFORE THE AO IN SUPPORT OF ITS CLAIM AND CIT-A FOUND THAT ALL THE DETAILS PRODUCED BEFORE THE AO AND DELETED SAID ADDITION WI THOUT OFFERING AN OPPORTUNITY TO THE AO AND RELIED ON THE ORDER OF AO. THE LD.AR RELIED ON THE ORDER OF CIT-A. 6. HEARD RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE CONTENTION OF THE REVENUE IS THAT THE ASSESSEE DID NOT PRODUCE ANY DETAILS OF LORRY HIRE CHARGES IN SUPPORT OF THE CLAIM BUT IT IS EVID ENT FROM THE ASSESSMENT ORDER THAT THE AR REPRESENTING ASSEESSEE VIDE ITS LETTER DATED 22-12-2009 PRODUCED DETAILS OF LORRY HIRE CHARGES, LORRY HIRE PAYMENT STATEMENT, V OUCHERS AND BOOKS OF ACCOUNTS. IT IS ALSO NOTICED THAT THE AO EXAMINED LEDGERS, BI LLS AND VOUCHERS BUT HOWEVER HAVING EXAMINED THE SAME THE AO DISBELIEVED THE SAI D DETAILS AND HE SUSPECTED THE SAID DETAILS WERE SELF MADE AND ANY OF SUCH DETAILS WERE NOT ISSUED BY THE 3 RD PARTIES. IN OUR VIEW THE SAID FINDING OF THE AO IS NOT TENABLE AND IS BASED ON MERE PRESUMPTIONS. THE ASSESSEE CLAIMED EXPENSES CONSIST ED OF RUNNING ITS OWN VEHICLES I.E., DIESEL, LUBRICANTS, REPAIRS, MAINTE NANCE AND ALSO INVOLVING PAYMENT TO TRUCK DRIVERS UNDER CONSIGNMENT NOTES THUS IT ALL S HOWS THE ASSESSEE PRODUCED ALL THE RELEVANT DETAILS AS REQUESTED BY THE AO IN THE REASSESSMENT PROCEEDINGS. THE CIT-A ALSO FOUND THE SAME AS ALL THE DETAILS AVAILA BLE BEFORE THE AO. THE CIT-A FURTHER EXAMINED LORRY HIRE PAYMENT STATEMENTS OF A LL FIVE BRANCHES WHEREIN IT CONTAINED DETAILS OF LORRIES AND DATE WISE PAYMENT. IT IS PERTINENT TO MENTION THE VERY LORRY HIRE STATEMENT WAS AVAILABLE BEFORE THE AO AS IT WAS SUBMITTED THROUGH AR VIDE ITS LETTER DATED 22-12-2009. SO IT CAN BE V ISUALIZED HAVING ALL DETAILS WITH AO DID NOT APPRECIATE THE SAME IN RIGHT PERSPECTIVE IN TURN HE SUSPECTED THAT ALL THE DETAILS ARE SELF MADE BY THE ASSEESSEE. THEREFORE T HE ORDER OF THE CIT-A IS JUSTIFIED IN FINDING THAT THERE IS NO VIOLATION OF SECTION 194(C) OF THE ACT AND DELETING THE SAID 4 ADDITION MADE UNDER SEC40(A)(IA) IS JUSTIFIED CONSE QUENTLY GROUND NO.1 IS DISMISSED. 7. REGARDING GROUND NO-2 INVOLVING VIOLATION OF RUL E 46A AS DISCUSSED ABOVE THE ASSESSEE PRODUCED ALL THE DETAILS IN SUPPORT OF ITS CLAIM BEFORE THE AO AND WE FOUND NO ADDITIONAL DOCUMENTS OR EVIDENCE AS THE CA SE MAY BE FILED BEFORE THE CIT-A. THE CIT-A ONLY DISCUSSED IN DETAIL OF ALL TH E EVIDENCE AVAILABLE ON RECORD. AO ALSO ACKNOWLEDGED AND EXAMINED ALL SUCH DETAILS BUT AS DISCUSSED ABOVE HE DID NOT BELIEVE SUCH DETAILS. THUS, WE HOLD THAT THERE IS NO VIOLATION OF RULE 46A, THEREFORE, WE FIND NO MERITS IN GROUND NO.2 ACCORDI NGLY IT IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.05.2016. SD/- SD/- (P. M. JAGTAP) (S.S.VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 06/05/2016 TALUKDAR (SR.PS) COPY OF THE ORDER FORWARDED TO: 1. M/S. ABHIYAN CARGO (P) LTD., 61A, PARK STREET, A MBASSADOR APARTMENT, 1 ST FLOOR, KOLKATA 700 016 2 DCIT, CIRCLE-3, KOLKATA 3. THE CIT-I, 4. THE CIT(A)-I, 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES 5