DCIT, Pune V. M/S Rocktech Enggineers, Pune

ITA 1583/PUN/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5900 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: VIPIN GUJRATHI
• Keywords: Retrospective amendment; Corroborative evidences
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1574/PN/2012 (ASSTT.YEAR : 2008-09) ROCK TECH ENGINEERS, FLAT NO.301, SADAFULEE APARTMENTS, NEAR SANGAM PRESS, KOTHRUD, PUNE 411 029 PAN NO.AAEFR7021G .. APPELLANT VS. ACIT, RANGE-3, PUNE .. RESPONDENT ITA NO. 1583/PN/2012 (ASSTT.YEAR : 2008-09) DCIT, CIRCLE-3, PUNE .. CROSS OBJECTOR VS. ROCK TECH ENGINEERS, FLAT NO.301, SADAFULEE APARTMENTS, NEAR SANGAM PRESS, KOTHRUD, PUNE 411 029 PAN NO.AAEFR7021G .. APPELLANT IN THE APPEAL ASSESSEE BY : SHRI VIPIN GUJRATHI REVENUE BY : SHRI P.L. PATHADE DATE OF HEARING : 15-01-2014 DATE OF PRONOUNCEMENT : 28-01-2014 ORDER PER R.K. PANDA, AM : THESE ARE CROSS APPEALS. THE FIRST ONE IS FILED BY THE ASSESSEE AND THE SECOND ONE FILED BY THE REVENUE AND ARE DIR ECTED AGAINST THE ORDER DATED 30-03-2012 OF THE CIT(A)-II, PUNE RELAT ING TO ASSESSMENT YEAR 2008-09. FOR THE SAKE OF CONVENIENCE THESE WE RE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 ITA NO.1574/PN/2012 : (BY ASSESSEE) : 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER: THE LD. ASSESSING OFFICER MADE ADDITION OF RS.1,01,54,8 72/- UNDER SECTION 40(A)(IA) OF THE I.T. ACT ON THE GROUND THAT THE ASSESSEE HAS DEPOSITED TAX DEDUCTED AT SOURCE IN RESPECT OF PAYMEN TS MADE TO THE SUB CONTRACTOR AFTER THE END OF THE PREVIOUS YEAR BUT BEFORE THE DUE DATE OF FILING OF RETURN. THE FINANCE ACT 2010 AME NDED SECTION 40(A)(IA) TO PROVIDE THAT IF ANY SUM WHICH HAS BEEN D EDUCTED AND PAID ON OR BEFORE THE DATE OF FILING OF RETURN SHALL BE A LLOWED AS A DEDUCTION IN RESPECT OF THE ASSESSMENT YEAR TO WHICH SUCH SUM PER TAINS. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW T HE HONBLE CIT(A) ERRED IN CONFIRMING THE PART OF THE ADDITION TO THE TUNE OF RS.35,98,200/- WITHOUT APPRECIATING THAT THE AMENDME NT MADE BY THE FINANCE ACT 2010 WAS CLARIFICATORY AND APPLICABLE RE TROSPECTIVELY. THE ASSESSEE HEREBY PRAYS THAT THE ADDITION MAY PLEASE BE DELETED. 2.1 FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF TRADING IN HEAVY MA CHINERY, SPARE PARTS AND ALSO UNDERTAKES CONTRACT OF EXCAVATION AN D EARTHMOVING ACTIVITY. IT IS ALSO A DISTRIBUTOR OF SPARE PARTS NAMED EXTECH OF A U.K. BASED COMPANY. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.6,12,88,330/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD PAID THE TDS AMOUNT ON THE PAYMENTS MADE TO THE CONTRACTORS AND SUB-CONTRACTORS AT RS.15,00,000/-, RS.3,15,000/ - AND RS.3,73,000/- ON 01-02-2008, 13-07-2008 AND 26-01-2008 RESPECTIVE LY. THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT THE MONTH-WISE CHART OF SUB-CONTRACTORS AND THE SCANNED TDS PAYMENT. FR OM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE THE ASSESSING OFF ICER NOTED THAT FOR THE PAYMENT MADE TO SUB-CONTRACTORS UPTO THE MONTH OF JANUARY 2008 THE TDS OF RS.15,00,000/- HAD BEEN PAID ON 01-02-20 08. THE ASSESSING OFFICER NOTED THAT THE TOTAL PAYMENT MADE TO THE SUB- CONTRACTOR IN THE MONTH OF FEBRUARY 2008 WAS RS.1,0 1,54,872/- AND THE PAYMENTS MADE IN THE MONTH OF MARCH 2008 WAS RS .5,70,65,987/-. 3 THE CORRESPONDING TDS OF RS.1,14,750/- AND RS. 6,44 ,846/- RESPECTIVELY HAD BEEN PAID IN THE GOVT. ACCOUNT IN TWO INSTALLMENTS OF RS.3,15,000/- ON 13-7-2008 AND RS.3,73,000/- ON 26- 7-2008. THE AO THUS INFERRED THAT FOR THE PAYMENTS MADE IN THE MON TH OF FEB 2008 TO THE SUB CONTRACTORS OF RS.1,01,54,872/-, THE TDS DE DUCTED FROM SUCH PAYMENTS HAD BEEN PAID IN THE GOVT ACCOUNT ON 13-7- 2008 WHICH OUGHT TO HAVE BEEN DEPOSITED BEFORE THE END OF FINA NCIAL YEAR AS PER THE PROVISIONS OF SEC. 40 (A)(IA). THUS THE AO DIS ALLOWED THE AFORESAID EXPENDITURE OF RS.1,01,54,872/- AND ADDED BACK TO THE TOTAL INCOME. 2.2 BEFORE CIT(A) IT WAS SUBMITTED BY THE ASSESSEE THAT THE DEDUCTION WAS PERMISSIBLE IN TERMS OF SEC. 40(A)(IA ) IN RESPECT OF ANY SUM PAID DURING APRIL 2007 TO FEB 2008, IF THE TDS IS PAID BEFORE 31 ST MARCH 2008 AND FOR THE PAYMENT FALLING IN THE MONTH OF MARCH 2008 THE DEDUCTION WAS PERMISSIBLE IF TDS IS PAID O N OR BEFORE THE DUE DATE SPECIFIED IN SECTION 139(1) OF THE IT. ACT . THE ASSESSEE DREW ATTENTION TO PROVISO TO SEC. 40(A)(IA) SUBSTITUTED BY THE FINANCE ACT 2010, WHICH ENVISAGES THAT 'IF ANY SUM WHICH HAS BE EN DEDUCTED AND PAID ON OR BEFORE THE DUE DATE OF FILING OF RETURN SHALL BE ALLOWED AS A DEDUCTION IN RESPECT OF THE ASSESSMENT YEAR TO WHIC H SUCH SUM PERTAINS. THE ASSESSEE FURTHER CONTENDED THAT THE TAX HAS BEEN DEDUCTED IN RESPECT OF SUMS PAID OR PAYABLE DURING THE P.Y. RELEVANT TO A.Y.2008-09 AND THE SAID TDS HAS BEEN PAID IN TH E MONTH OF JULY 2008, THE DATE OF FILING OF RETURN IS SEPT 2008, TH US THE TAXES HAVE BEEN PAID BEFORE THE DUE DATE OF FILING OF RETURN. 4 2.3 IT WAS ARGUED THAT THE PROVISO HAS BEEN SUBSTITUTED W.E.F. 1-4- 2010, THEREFORE, THE ISSUE AT HAND TO CONSIDER IS W ITH RESPECT TO THE APPLICABILITY OF THE PROVISO RETROSPECTIVELY OR PRO SPECTIVELY. THE ASSESSEE PLACED RELIANCE ON THE UNREPORTED JUDGMENT OF THE HON. CALCUTTA HIGH COURT IN JUDGMENT NO. ITA NO. 302 OF 2011 IN THE CASE OF VIRGIN CREATIONS DT. 23.11.2011 WHEREIN IT IS HE LD THAT THE PROVISO TO SEC. 40 (A)(IA) IS RETROSPECTIVELY APPLICABLE AS THE SAME HAS BEEN INSERTED AS A REMEDY TO MAKE THE PROVISION WORKABLE . 2.4 WITHOUT PREJUDICE TO THE CLAIM THAT PROVISO TO SEC. 40(A)(IA) SUBSTITUTED BY FINANCE ACT 2010 IS RETROSPECTIVELY APPLICABLE IT WAS ARGUED ALTERNATIVELY THAT THE TDS OF RS. 15,00,000/ - HAS BEEN PAID ON 1-2-2008 NOT ONLY IN RESPECT OF SUB CONTRACTING CHA RGES PAID FOR THE MONTH OF APRIL 2007 TO JAN 2008 BUT THE SAID AMOUNT ALSO INCLUDED TDS PAID IN ADVANCE TO THE TUNE OF RS.74,091/- FOR THE MONTH OF FEB AND MARCH 2008. IT WAS SUBMITTED THAT THE TDS FOR T HE SUB- CONTRACTING CHARGES PAID OR PAYABLE IN THE MONTH OF FEBRUARY 2008 IS PAYABLE ON OR BEFORE 7 TH MARCH 2008 AND THE TDS IN RESPECT OF SUCH CONTRACTING CHARGES HAS BEEN PAID ON 1-2-2008 AND T HUS TDS TO THE TUNE OF RS.74,091/- HAS BEEN PAID IN ADVANCE AND TH EREFORE, THE CORRESPONDING CONTRACTING CHARGES TO THE TUNE OF RS .65,56,672/- HAS TO BE ALLOWED BY WAY OF DEDUCTION AND THE DISALLOWANCE IN TERMS OF SEC. 40(A)(IA) CAN BE MADE ONLY TO THE TUNE OF RS.35,98, 200/-. 3. HOWEVER, THE CIT(A) WAS NOT SATISFIED WITH THE E XPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE ASSESS EE HAS MADE A PAYMENT OF RS.15,00,000/- IN THE MONTH OF FEB 2008 AGAINST THE TOTAL 5 AMOUNT TO BE PAID OF RS.15,40,658/- IN RESPECT OF T HE TOTAL SUB CONTRACTING CHARGES UPTO THE MONTH OF FEB 2008. THU S AGAINST THE TOTAL SUB-CONTRACTING CHARGES FOR THE MONTH OF FEB 2008 OF RS.1,01,54,872/- THE TOTAL TDS PAYABLE WAS OF RS.1, 14,750/- AND THE TOTAL TDS PAYABLE FOR THE SUB CONTRACTING CHARGES U PTO THE MONTH OF JAN 2008 WAS RS.14,25,908/-. THUS THE EXTRA PAYMENT OF RS.74,091/- ON ACCOUNT OF TDS WHICH HAS BEEN DEDUCTED AND PAID TO THE GOVT. ACCOUNT IN THE MONTH OF FEBRUARY WHICH IS PAYABLE O N OR BEFORE 7 TH MARCH 2008 HAS BEEN PAID EARLIER BY THE ASSESSEE ON 1-2-2008. THE TOTAL AMOUNT OF TDS PAYABLE UPTO THE MONTH OF 2008 OF RS.14,25,908/- AGAINST THE SUB CONTRACTING CHARGES PAID BY THE ASSESSEE HAS ALREADY BEEN MET AND THE PAYMENTS MADE IN ADVANCE BY THE ASSESSEE HAS TO BE GIVEN EFFECT TO FOR THE SUBS EQUENT SUB CONTRACTING CHARGES PAID IN THE MONTH OF FEB ONLY. THE AO WHILE EXAMINING THE ISSUE HAS HELD THE TOTAL TDS PAYMENT MADE OF RS.15,00,000/- BY THE ASSESSEE FOR THE SUB CONTRACT ING CHARGES PAID UPTO MONTH OF JAN 2008 BUT THE FACT BROUGHT ON RECO RD CLEARLY INDICATE THAT AN AMOUNT OF RS.74,091/- WAS IN EXCESS WHICH H AS BEEN TREATED BY THE ASSESSEE TO BE ADVANCE PAYMENT FOR THE SUB C ONTRACT PAYMENTS MADE IN THE MONTH OF FEBRUARY. THE PROVISIONS OF SE C. 40(A)(IA) WAS INSERTED BY THE FIN. ACT 2004 W.E.F. 1-4-2005. THE AMENDMENTS MADE BY THE FIN. ACT 2008 WITH RETROSPECTIVE EFFECT FROM 1-4-2005 CAN BE UNDERSTOOD AS UNDER: (I) THE AMENDMENT ALLOWS DEDUCTION OF PAYMENT W HERE A PERSON RESPONSIBLE FOR DEDUCTION OF TAX AT SOURCE FOR PAYMENT MADE DURING THE FIRST ELEVEN MONTHS DEDUCTS TAX IN RESPECT OF PAYME NTS IN TIME, BUT DEPOSITS THE TAX BEYOND THE DUE DATE, BUT DURING THE SAME YEAR. THIS ONLY SETS RIGHT A LACUNA IN EXISTING LAW WHICH DEN IED DEDUCTION FOR BELATED DEPOSIT OF TAX IN THE SAME YEAR. 6 (II) THE OTHER AMENDMENT ALLOWS DEDUCTION FOR TH OSE WHO HAVE DEDUCTED TAX IN THE LAST MONTH OF THE YEAR AND DEPOSI T THE TAX BEFORE THE DUE DATE FOR FILING THE RETURN. THE CONCESSION I S THAT THOUGH THEY WERE REQUIRED TO PAY TAX BY END OF MAY AND HAVE PAI D BEFORE 30 TH SEPT (I.E. DUE DATE OF FILING OF RETURN) DEDUCTION OF PAYMENT DOES NOT GET POSTPONED. THUS THE AMENDMENT BROUGHT OUT BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 1-4-2005 HAS RELAXED THE POSITION TO SOME EXTENT. TO PUT IT SIMPLY, IF TAX WAS DEDUCTIBLE AND WAS SO DEDUCTED DURING THE FIRST ELEVEN MONTHS OF THE PREVIOUS YEAR , THAT IS UPTO THE MONTH OF FEB 2008, THE DISALLOWANCE WAS TO BE MADE IF THE ASSESSEE FAILED TO PAY IT BEFORE 31 ST MARCH 2008. THE CASE OF THE ASSESSEE FALLS IN THIS CATEGORY AS IT DEDUCTED TAX AT SOURCE IN FE B 2008 AND HAS PARTLY DEPOSITED SUCH TAX TO THE EXTENT OF RS.74,09 1/- BEFORE END OF FINANCIAL YEAR I.E. 31-3-2008. IN SUCH A CIRCUMSTAN CES THE CORRESPONDING SUB CONTRACTING CHARGES TO THE TUNE O F RS. 65,56,672/- WILL HAVE TO BE ALLOWED BY WAY OF DEDUCTION AS THE TDS IN RESPECT OF THE SAME HAS BEEN PAID IN TIME IN VIEW OF THE PROVI SIONS OF SEC.40(A)(IA) AS APPLICABLE FOR A.Y. 2008-09. THER EFORE, OUT OF THE DISALLOWANCE MADE BY THE AO OF RS.1,01,54,872/- U/S .40(A)(IA) THE DISALLOWANCE WILL HAVE TO BE RESTRICTED TO RS.35,98 ,200/- (1,01,54,872 65,56,672). THUS HE SUSTAINED AN AMOUNT OF RS.35 ,98,200/- OUT OF RS.1,01,54,872/- DISALLOWED BY THE ASSESSING OFFICE R. WHILE DOING SO, HE FURTHER HELD THAT THE AMENDMENT OF SECTION 4 0(A)(IA) BY THE FINANCE ACT, 2010 HAS BEEN SPECIFICALLY MADE RETROS PECTIVE FROM A.Y. 2010-11. IT HAS NOWHERE BEEN EXPRESSLY SET OU T THAT THE AMENDMENT IS CURATIVE OR MERELY DECLARATORY OF THE PREVIOUS LAW. HE OBSERVED THAT THE INTENTION OF THE LEGISLATURE AS O BSERVED FROM THE MEMORANDUM EXPLAINING THE PROVISIONS OF THE FINANCE BILL WHICH 7 DOES NOT PARTICULARLY INDICATE ANY RELAXATION IN TH E PROVISION RETROSPECTIVELY FROM A.Y. 2008-09. THERE CAN BE NO DENIAL TO THE FACT THAT MERELY BECAUSE THE PROVISION HAS BEEN EXP RESSLY MADE PROSPECTIVE, CAN BE STILL, IN CERTAIN CIRCUMSTANCES BE RETROSPECTIVE. REFERRING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RELIANCE JUTE AND INDUSTRIES LTD. VS. CIT REPORTED IN 20 ITR 921 (SC) WHERE IT HAS BEEN HELD THAT LAW TO BE APPLIED IS THAT IN FORCE IN THE ASSESSMENT YEAR UNLESS OTHERWISE PROVIDED EXPRE SSLY OR BY NECESSARY IMPLICATION HE REJECTED THE CONTENTION OF THE ASSESSEE THAT THE AMENDMENT OF SECTION 40(A)(IA) BY THE FINANCE A CT, 2010 SHOULD BE HELD RETROSPECTIVE FROM A.Y. 2008-09. 3.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAV E ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND IN THE INSTANT CASE THE ASSESSING OFFICER MADE DISALLOWANCE OF RS.1,01,54,8 72/- U/S.40(A)(IA) ON THE GROUND THAT AS AGAINST THE TOTAL PAYMENT OF RS.1,01,54,872/- PAID TO THE SUB-CONTRACTORS IN THE MONTH OF FEBRUAR Y 2008, THE TDS DEDUCTED FROM SUCH PAYMENTS HAD BEEN PAID TO THE GO VERNMENT ACCOUNT ON 13-07-2008. WE FIND THE LD.CIT(A) WHILE DECIDING THE ISSUE FOUND THAT THE ASSESSEE HAS DEPOSITED TDS OF RS.15 LAKHS ON 01- 02-2008 NOT ONLY IN RESPECT OF SUB-CONTRACTING CHAR GES PAID FOR THE MONTH OF APRIL 2007 TO JANUARY 2008 BUT THE SAME AL SO INCLUDES TDS PAYMENT IN ADVANCE TO THE TUNE OF RS.74,031/- FOR T HE MONTH OF 8 FEBRUARY & MARCH 2008. HE, THEREFORE, HELD THAT TH E AMOUNT OF CORRESPONDING CONTRACTING CHARGES AMOUNTING TO RS.6 5,56,672/- HAS TO BE ALLOWED BY WAY OF DEDUCTION AND THUS HE SUSTAINE D THE BALANCE AMOUNT OF RS.35,98,200/-. THE REVENUE IS NOT IN AP PEAL FOR THE DELETION OF RS.65,56,672/-. 4.1 SO FAR AS THE PAYMENT TO SUB-CONTRACTORS AMOUNT ING TO RS.35,98,200/- IS CONCERNED, ADMITTEDLY THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS DEPOSITED THE TDS ON 13-07-20 08 WHICH IS BEFORE THE DUE DATE OF FILING OF THE RETURN. 4.2 IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE FINANCE ACT, 2010 IS RETROSPECTIVE FROM 01-04-2005. CONSEQUENTL Y ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING THE PREVIOUS YEAR REL EVANT TO AND FROM A.Y. 2005-06 CAN BE MADE TO THE GOVERNMENT ON OR BE FORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S.139(1) OF TH E I.T. ACT. 4.3 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF ACIT VS. H.A. DEVELOPERS VIDE ITA NO.373/PN/2009 ORDER DATED 27-04-2012 FOLLOWING THE DECISION OF HONBLE CALCUTTA HIGH COU RT IN THE CASE OF CIT VS. VIRGIN CREATIONS VIDE ITA NO.302/CAL/2011 O RDER DATED 23- 11-2011 HAS DECIDED AN IDENTICAL ISSUE AND HAS HELD THAT AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT B Y THE FINANCE ACT, 2010 IS RETROSPECTIVE FROM 01-04-2005. IT WAS ACCO RDINGLY HELD THAT ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING PREVIO US YEAR RELEVANT TO AND FROM A.Y. 2005-06 CAN BE MADE TO THE GOVERNM ENT ON OR BEFORE DUE DATE OF FILING RETURN OF INCOME U/S.139( 1) OF THE ACT. IF THE 9 PAYMENTS ARE MADE AS AFORESAID NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT CAN BE MADE. THE RELEVANT OBSERVATION OF THE T RIBUNAL AT PARA 5 AND 6 OF THE ORDER READS AS UNDER : 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE M ATERIAL ON RECORD, WE FIND THE ISSUE RAISED BY THE REVENUE IN ITS APPEAL IS NOW COVERED BY THE JUDGMENT OF CALCUTTA HIGH COURT IN T HE CASE OF CIT VS. VIRGIN CREATIONS IN ITAT NO.302 OF 2011 GA 3200 OF 2 011 DATED 23- 11-2011, WHEREIN IT HAS BEEN HELD AS UNDER : WE HAVE HEARD MR. NIZAMUDDIN AND GONE THROUGH THE IMPUGNED JUDGMENT AND ORDER. WE HAVE ALSO EXAMINED THE POINT FORMULATED FOR WHICH THE PRESENT APPEAL IS SOUGHT TO B E ADMITTED. IT IS ARGUED BY MR. NIZAMUDDIN THAT THIS COURT NEEDS TO TAK E DECISION AS TO WHETHER SECTION 40(A)(IA) IS HAVING RETROSPECTIVE OPER ATION OR NOT. THE LEARNED TRIBUNAL ON FACT FOUND THAT THE ASSESSEE HAD DEDUCTED TAX AT SOURCE FROM THE PAID CHARGES BETWEEN THE PERIOD APRIL 1, 2005 AND APRIL 28, 2006 AND THE SAME WERE PAID BY THE ASSESSEE IN JULY AND AUGUST 2006, I.E. WELL BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS FACTUAL POSITION WAS UNDISPUTED. MOREOVER, THE SUPREME COURT , AS HAS BEEN RECORDED BY THE LEARNED TRIBUNAL, IN THE CASE OF ALL IED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTRUSIONS LTD., HAS ALREAD Y DECIDED THAT THE AFORESAID PROVISION HAS RETROSPECTIVE APPLICATION. AGAIN, IN THE CASE REPORTED IN 82 ITR 570, THE SUPREME COURT HELD THAT THE PROVISION, WHICH HAS INSERTED THE REMEDY TO MAKE THE P ROVISION WORKABLE, REQUIRES TO BE TREATED WITH RETROSPECTIVE O PERATION SO THAT REASONABLE DEDUCTION CAN BE GIVEN TO THE SECTION AS WE LL. IN VIEW OF THE AUTHORITATIVE PRONOUNCEMENT OF THE SUPREME COUR T, THIS COURT CANNOT DECIDE OTHERWISE. HENCE WE DISMISS THE APPEAL W ITHOUT ANY ORDER AS TO COSTS. 6. IN VIEW OF THE ABOVE, FOLLOWING THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF VIRGIN CREATIONS ( SUPRA) WE HOLD THAT AMENDMENT TO THE PROVISIONS OF SEC.40(A)(IA) OF T HE ACT BY THE FINANCE ACT, 2010 IS RETROSPECTIVE FROM 01-4-2005. C ONSEQUENTLY, ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING PREVIOUS YEA R RELEVANT TO AND FROM A.Y. 2005-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT. IF THE PAYMENTS ARE MADE AS AFORESAID, THEN NO DISALLOWANCE U/ S.40(A)(IA) OF THE ACT CAN BE MADE. ADMITTEDLY, IN THE PRESENT CASE THE ASSESSEE HAD DEPOSITED THE TAX DEDUCTED AT SOURCE ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT AND TH EREFORE, WE HOLD THAT THE CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOW ANCE MADE U/S.40(A)(IA) OF THE ACT. ACCORDINGLY, WE UPHOLD TH E ORDER OF THE CIT(A) ON THIS ISSUE. 4.4 WE FIND FOLLOWING THE ABOVE DECISION THE TRIBUN AL IN THE CASE OF PRADEEP R. CHAVAN VS. ACIT VIDE ITA NO.914/PN/20 10 ORDER DATED 17-07-2012 HAS OBSERVED AS UNDER : 10 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDER OF THE LEARNED CIT AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE V ARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE F ACT THAT THE TDS OF RS. 25,034/- HAS BEEN DEPOSITED ON 19-07-2005 WHICH IS PRIOR TO THE DUE DATE OF FILING OF THE RETURN U/S.139(1) WHIC H IN THE INSTANT CASE IS 31-08-2005. WE FIND THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF H.A. DEVELOPERS (SUPRA) HAS HELD THAT AMENDMEN T TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINA NCE ACT 2010 IS RETROSPECTIVE FROM 01-04-2005. CONSEQUENTLY ANY PAYM ENT OF TDS DURING PREVIOUS YEAR RELEVANT TO AND FROM ASSESSMENT YEA R 2005-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME U/S.139(1) OF THE INCOME TAX ACT. SINCE IN THE INSTANT CASE THE ASSESSEE HAS DEPOSITED THE TDS BEFORE THE DUE DATE OF FILING THE RETURN, THEREFORE, IN OUR OPINION, NO DI SALLOWANCE U/S.40(A)(IA) OF THE ACT CAN BE MADE ON ACCOUNT OF L ATE DEPOSIT OF TDS TO THE CREDIT OF THE CENTRAL GOVERNMENT. IN THIS V IEW OF THE MATTER, THE ORDER PASSED BY THE CIT U/S. 263 IS SET-ASIDE AND THE GR OUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 4.5 SIMILAR VIEW HAS BEEN TAKEN BY THE TRIBUNAL IN THE CASE OF ACIT VS. M/S. DREAMS CONSTRUCTION VIDE ITA NO.1013/ PN/2009 ORDER DATED 23-08-2012 FOR A.Y. 2005-06. SINCE THE ASSESSEE IN THE INSTANT CASE HAS ADMITTEDLY DEPOSITED THE TDS ON 13 -07-2008 ON ACCOUNT OF PAYMENT TO THE SUB-CONTRACTORS PAID IN T HE MONTH OF FEBRUARY AND MARCH, THEREFORE, RESPECTFULLY FOLLOWI NG THE DECISIONS CITED ABOVE WE SET-ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE THE DISALLOW ANCE TO THE TUNE OF RS.35,98,200/- SUSTAINED BY CIT(A). THE GROUND RAIS ED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO.1583/PN/2012 (BY REVENUE) : 5. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES O F THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) G ROSSLY ERRED IN PARTLY ALLOWING THE ASSESSEE'S APPEAL INSTEAD OF CONFI RMING THE ASSESSING OFFICER'S ORDER. 11 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) G ROSSLY ERRED IN RESTRICTING THE DISALLOWANCE ON ACCOUNT OF EXPENSES NOT INCURRED WHOLLY & EXCLUSIVELY FOR THE PURPOSE OF BUSINESS TO RS.1, 05,600/- AS AGAINST RS.35,00,000/- DISALLOWED BY THE ASSESSING OFFICE R. 4. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) G ROSSLY ERRED IN DELETION THE DISALLOWANCE OF RS.15,44,400/- WITHOU T ANY BASIS AS NO EVIDENCE IN SUPPORT OF THE CLAIM THAT THE EXPENSES HAV E BEEN INCURRED WHOLLY & EXCLUSIVELY FOR THE PURPOSE OF BUSINESS WAS SUBMI TTED BY THE ASSESSEE BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (A PPEALS). 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) G ROSSLY ERRED IN DELETING THE DISALLOWANCE OF RS.18.50 LAKHS AS NO SU PPORTING EVIDENCE EVIDENCING THAT THE TRANSPORTATION CHARGES HAVE BEEN ENTIRELY INCURRED FOR THE PURPOSE OF BUSINESS WAS NOT F ILED IN THE COURSE OF ASSESSMENT PROCEEDINGS NOR WAS THE SAME PRODUCED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 6. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LEARNED CIT (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OR ALL THE GROUNDS OF APPEAL. 5.1 GROUNDS OF APPEAL NO.1, 2, 6 & 7 BEING GENERAL IN NATURE ARE DISMISSED. 6. SO FAR AS THE GROUNDS OF APPEAL 3 TO 5 ARE CONCE RNED THE FACTS ARE AS UNDER. DURING THE ASSESSMENT PROCEEDINGS TH E AO NOTICED THAT THE ASSESSEE HAD DEBITED A SUM OF RS.18,26,45,604/- WHICH INCLUDED RS.16,37,24,557/- AS INTER-CARTING AND TRANSPORTING CHARGES, RS.82,15,877/- UNDER CRUSHER MAINTENANCE AND RS.1,0 7,05,170/- UNDER LABOUR CHARGES. THE AO ON FURTHER VERIFICATION FOUN D THAT PAYMENT MADE TO VIDESH USGAONKAR TOWARDS TRANSPORTATION CHA RGES OF RS.6.22 LACS AND RS. 6.28 LACS ON 2-3-2008 AND 12-3-2008 RE SPECTIVELY WERE BASED ON THE STATEMENT OF ACCOUNT OF THE AFORESAID PERSON AND THE SAME DID NOT HAVE ANY SUPPORTING EVIDENCE OF WORK D ISCHARGED. 12 SIMILARLY PAYMENT MADE TO BHANUDAS SONIK OF RS.6 LA CS ON 25-3-2008 WAS ALSO BASED ON STATEMENT OF ACCOUNT OF THE PARTY AND WAS NOT SUPPORTED BY PROPER EVIDENCE WHICH COULD SHOW THAT WORK HAD BEEN DISCHARGED UNDER THE HEAD, CRUSHER MAINTENANCE AND LABOUR CHARGES. THE A.O. FOUND THAT CERTAIN CASH EXPENSES HAD BEEN INCURRED WITHOUT ANY SUPPORTING EVIDENCE. THE ASSESSEE ALSO DID NOT FURNISH ANY SUBMISSION FOR THE EXPLANATION SOUGHT BY THE A.O. T HE A.O. THUS HELD THE EXPENSES TO HAVE BEEN NOT INCURRED WHOLLY AND E XCLUSIVELY FOR THE PURPOSE OF BUSINESS. THE TOTAL AMOUNT WORKED OUT BY THE A.O. OF THE AFORESAID DISCREPANCIES TOTALED TO RS.19,55,600/-. HOWEVER, THE A.O. ESTIMATED FURTHER SUCH EXPENSES AND DISALLOWED A TO TAL SUM OF RS.35,00,000/-. 6.1 BEFORE CIT(A) IT WAS SUBMITTED THAT THE AO HAD RESORTED TO ADHOC DISALLOWANCE WITHOUT ANY BASIS OR LOGIC. IT W AS ARGUED THAT THE NATURE OF CONTRACTING WORK CARRIED OUT INCLUDES CON TRACTING WORK OF EXCAVATION AND EARTH MOVING AT MINES SITUATED IN VE RY REMOTE AREAS WHICH ARE NOT EASILY ACCESSIBLE BY NORMAL MEANS OF TRANSPORT AND, THEREFORE, THE ASSESSEE CANNOT HAVE FULL FLEDGED A CCOUNTS DEPARTMENT AT EVERY SITE AND CERTAIN EXPENSES HAVE TO BE INCUR RED IN CASH FOR THE PURPOSE OF THE LOCAL AREA AND SUCH EXPENDITURE ARE SUPPORTED BY SELF MADE VOUCHERS. IT WAS SUBMITTED THAT THE DISALL OWANCE-MADE BY THE A.O. ON THE GROUND THAT EVEN THOUGH THE EXPENSES HA VE BEEN INCURRED BY ACCOUNT PAYEE CHEQUES THE SAME ARE NOT SUPPORTED BY PROPER VOUCHERS RATHER BY SELF MADE VOUCHERS AND THAT DOES NOT MEAN THAT THE EXPENSES ARE FICTITIOUS OR BOGUS. IT WAS ARGUED THA T THE A.O. WITHOUT BRINGING ON RECORD ANY MATERIAL INDICATING PERSONAL OR CAPITAL 13 EXPENSES HAS ERRONEOUSLY ARRIVED AT A CONCLUSION TH AT THE SAME IS NOT FOR THE PURPOSES OF BUSINESS. IT WAS SUBMITTED THAT OUT OF THE TOTAL EXPENSES ON CRUSHER MAINTENANCE 90% IS ON ACCOUNT O F SPARE PARTS PURCHASED FOR CRUSHER AND THE REMAINING 10% ON LABO UR AND THEREFORE, MAJORITY OF THE PURCHASE BILLS OF SPARES PURCHASED ARE FROM REGULAR THIRD PARTY AND NOT SELF MADE VOUCHERS AND THAT 90% OF THE EXPENSES INCURRED WERE BY WAY OF ACCOUNT PAYEE CHEQUES AND T HE REMAINING 10% IS MAINLY ON LABOUR CHARGES INCURRED AT SITE WH ICH WERE IN CASH. THE OBSERVATION OF THE AO IN THIS REGARD THAT MANY EXPENSES WERE IN CASH IS WITHOUT ANY BASIS AND IS FACTUALLY NOT CORR ECT. 6.2 SO FAR AS THE EXPENSES ON TRANSPORTATION CHARGE S ARE CONCERNED, IT WAS ARGUED THAT NEARLY 95% OF THE EXPENSES HAVE BEEN INCURRED BY WAY OF CHEQUES AND SUPPORTED BY THIRD PARTY BILLS A ND THE OBSERVATION OF THE AO THAT THE EXPENSES HAVING BEEN INCURRED BY WAY OF CHEQUE BUT WITHOUT SUPPORTING EVIDENCE IS FACTUALLY NOT CO RRECT. IT WAS STATED THAT THE PAYMENTS TO VIDESH USGAONKAR AND BHANUDAS SONIK WERE BY WAY OF CHEQUES AND THE TDS AT APPLICABLE RATES WERE DEDUCTED AND ALSO DEPOSITED IN THE CREDIT OF THE GOVT. AND THE A FORESAID PERSONS HAVE PAN NUMBERS AND THAT THE ACCOUNT EXTRACTS WERE SUBM ITTED BEFORE THE AO WHICH HAS NOT BEEN CONSIDERED. IT WAS ARGUED THA T THE PAYMENTS MADE UNDER THE TRANSPORTATION CHARGES HAVE BEEN AFT ER DEDUCTING TDS AND, THEREFORE, THE IDENTITY OF THE PAYEE IS PROVED AND, THEREFORE, EXPENSES CANNOT BE TERMED AS HAVING NOT BEEN INCURR ED FOR THE PURPOSE OF BUSINESS. MOREOVER, THE BOOKS OF ACCOUNT WERE AUDITED U/S 44AB AND THERE WAS NO ADVERSE COMMENTS OF AUDITORS IN THIS REGARD. IT WAS ARGUED THAT THE ADHOC DISALLOWANCE OF RS.35 LAC S AMOUNTS TO 14 ADDITION OF 5.71 % OF THE NET PROFIT AND THE AO HAS NEITHER SHOWN ANY DEFECT IN THE BOOKS OF ACCOUNT NOR REJECTED THEM BE FORE RESORTING TO THE ADDITION. THE DECISION OF HONBLE ALLAHABAD HIG H COURT IN THE CASE OF AWADESH PRATAP SINGH ABDUL REHMAN BROTHERS VS CIT 210 ITR 406 (ALL) WAS RELIED UPON TO THE PROPOSITION TH AT THE ABSENCE OF CASH MEMO IN A GIVEN SITUATION MAY NOT PER SE LEAD TO AN INFERENCE THAT THE ACCOUNTS ARE FALSE OR INCOMPLETE AND THAT THE MAINTENANCE OF STOCK RECORD OR CASH MEMO DEPENDS ON THE NATURE AND TYPE OF BUSINESS. 6.3 BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) GAVE PART RELIEF TO THE ASSESSEE BY HOLDI NG AS UNDER : 7.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND PERUSED MATERIAL ON RECORD. THE AO HAS RESORTED TO DISALLOWANCE OF RS.35,00,000/- PARTLY ON THE BASIS OF V ERIFICATION DONE WITH RESPECT TO THE MATERIALS PRODUCED BY THE APPELLA NT WHICH AMOUNTS TO RS.19,55,600/- AND PARTLY AMOUNT OF RS.15,4 4,400/- IS BASED ON AN ESTIMATE FOR WHICH NO FINDING HAS BEEN GIV EN AND WHICH HAS BEEN DISALLOWED PURELY ON AN ADHOC BASIS. THE DISALL OWANCE MADE IS WITHOUT ANY SPECIFIC FINDING AND VERIFICATION AND WITHOUT BRINGING ON RECORD ANY MATERIAL TO JUSTIFY THE DISALLOWANCE, I N SUCH A SITUATION THE DISALLOWANCE MADE BY THE A.O. WITHOUT ANY ENQUIR Y CANNOT BE SUSTAINED AND THEREFORE, RS.15,44,400/- (35,00,000 - 1 9,55,600) IS DIRECTED TO BE DELETED. 7.4 NOW COMING TO THE OTHER PART OF THE DISALLOWANCE FOR WHICH THE A.O. HAS DISCUSSED THE ISSUE IN THE ASSESSMENT ORDER OF RS19,55,600/-. THE MAJOR DISALLOWANCE OUT OF THE ABOV E AMOUNT IS OF RS.18.50 LACS AS IS EVIDENT FROM THE ORDER, WHICH RELAT ES TO TRANSPORTATION EXPENSES. THE A.O. HAS DISALLOWED THE EX PENSES FOR WHICH PAYMENTS HAVE BEEN MADE BY WAY OF CHEQUES TO TH E FOLLOWING PERSONS : 1. VIDESH USGAONKAR RS.6.22 LACS ON 02-3-2008 2. BHANUDAS SONIK RS.6.00 LACS ON 25-3-2008 RS.18.50 LACS THE AO'S CONTENTION THAT THE EXPENDITURE IS BASED ON STATEMENT OF ACCOUNT OF THE PARTY AND WITHOUT ANY FURTHER SUPPORT ING EVIDENCE HAS BEEN HELD TO BE EXPENSES NOT INCURRED WHOLLY AND EXCL USIVELY FOR THE PURPOSE OF BUSINESS. THERE IS NO OTHER FINDING MADE BY T HE AO AS IS REVEALED FROM THE ASSESSMENT ORDER. IT IS ALSO PERTINENT TO NOTE THAT THE AO HAS NOT CARRIED OUT ANY VERIFICATION OR ENQUI RY BEFORE ARRIVING AT THE AFORESAID CONCLUSION. THE PAYMENTS TO BOTH THE PERSONS HAVE 15 BEEN MADE BY WAY OF CHEQUES AND IN THE CASES OF BOTH THE PERSONS THE APPELLANT HAS DEDUCTED TDS AT THE TIME OF MAKING THE PAYMENT AND THUS ALSO HELD PAN NUMBERS AND, THEREFORE, ENQUIRIES CO ULD HAVE BEEN CARRIED OUT SO THAT THE DISALLOWANCE MADE COULD HAVE BEEN JUSTIFIED. THE AO HAS ALSO NOT CLAIMED THAT THE EXPENDITURE INCU RRED IS BOGUS OR FICTITIOUS AS NO FINDING TO THIS EFFECT HAS BEEN RECORD ED IN THE ORDER. THE INFERENCE DRAWN BY THE AO THAT THE EXPENDITURE DOES NOT RELATE TO THE BUSINESS OF THE APPELLANT DOES NOT HAVE ANY BASIS OR ANY FINDING BEING THAT THE EXPENDITURE WAS IN THE NATURE OF PERSO NAL IN CHARACTER OR WAS CAPITAL IN NATURE HAS BEEN BROUGHT OUT BY THE AO. THEREFORE, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE SUCH A D ISALLOWANCE WHICH HAS NOT BEEN CONSIDERED SHOWN BY THE AO AND FOR WHICH NO ENQUIRIES HAVE BEEN CARRIED OUT CANNOT BE SUBSTANTIATE D AND, THEREFORE, THE ADDITION OF RS. 18.50 LACS MADE BY THE AO IS DIRECTED TO BE DELETED. 7.5 THE REMAINING DISALLOWANCE OF RS.1,05,600 (19,55,600 - 18,50,000) HAS BEEN MADE BY THE AO ON ACCOUNT OF EXP ENSES HAVING BEEN INCURRED IN CASH AND ALSO WITHOUT ANY SUPPORTING EVIDENCE, THIS AMOUNT BASICALLY PERTAINS TO THE LABOUR CHARGES AND PA RTLY ON CRUSHER MAINTENANCE WHERE SUCH CASH EXPENDITURE IS REQUIRED TO BE INCURRED BECAUSE OF THE LOCATION OF THE SITES IN REMOTE AREAS. T HE APPELLANT HAD PRODUCED SELF MADE VOUCHERS FOR SUCH CLAIM MADE BEFORE THE AO. IT IS A WELL SETTLED PRINCIPLE THAT IF ANY DEDUCTION IS CLA IMED, IT IS FOR THE ASSESSEE TO PROVE THAT DEDUCTION IS LEGALLY ALLOWABLE TO HIM AND IF HE FAIL TO DO SO, THE AMOUNT SO CLAIMED IS LIABLE TO BE A SSESSED. THE AFORESAID EXPENSES INCURRED BY THE APPELLANT HAS ALSO NO T BEEN SUBJECT TO TDS THEREBY LEAVING NO SCOPE FOR ANY FURTHER VERI FICATION AND, THEREFORE, THE DISALLOWANCE MADE BY THE AO IS LIABLE TO BE UPHELD AND THE GROUND NO. 5 RAISED BY THE APPELLANT IS PARTLY ALLOWED. 6.4 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIN D THE ASSESSING OFFICER DISALLOWED A TOTAL SUM OF RS.35 LAKHS ON TH E GROUND THAT ASSESSEE HAD NO DETAILS FOR THE AMOUNT INCURRED ON ACCOUNT OF TRANSPORTATION CHARGES PAID TO SHRI VIDESH USGAONKAR (RS.12.50LAKHS) AND SHRI BHANUDAS SONIK (RS.6 LAKHS). SIMILARLY HE ALSO FOUND THAT CERTAIN CASH EXPENSES HAD BEEN INCURRED WITHOUT ANY SUPPORTING EVIDENCE. WE FIND THE LD.CIT(A) DELETED AN AMOUNT OF RS.15,44,400/- BEING DIFFERENCE BETWEEN RS.35 LAKHS AND RS.19,55,600/- ON THE GROUND THAT SUCH ADDITION WAS MADE BY THE 16 ASSESSING OFFICER ON ADHOC BASIS WITHOUT ANY ENQUIR Y. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT CONTROVERT TH E ABOVE FACTUAL FINDING GIVEN BY THE CIT(A). WE THEREFORE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.15 ,44,400/-. 8. SO FAR AS THE DELETION OF RS.18,50,000/- BEING P AYMENTS TO SHRI VIDESH USGAONKAR AND SHRI BHANUDAS SONIK IS CONCERNED WE FIND BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS GIVEN THE ST ATEMENT OF ACCOUNT OF THE ABOVE 2 PARTIES. THE PAYMENTS HAVE BEEN MAD E TO THE ABOVE PARTIES BY ACCOUNT PAYEE CHEQUES AND THE ASSESSEE H AS DEDUCTED TDS FROM SUCH PAYMENT AT THE TIME OF MAKING THE PAYMENT AND THEIR PAN NOS. WERE ALSO PROVIDED. THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY AND HAS NOT FOUND THAT THE EXPENSES INC URRED BY THE ASSESSEE IS BOGUS OR FICTITIOUS. THE LD. DEPARTMENT AL REPRESENTATIVE COULD NOT PIN POINT ANY FACTUAL ERROR IN THE DETAIL ED ORDER OF THE CIT(A) ON THIS ISSUE. WE THEREFORE FIND NO INFIRMI TY IN THE ORDER OF THE CIT(A) ON THIS ISSUE. THE GROUNDS RAISED BY TH E ASSESSEE ARE ACCORDINGLY DISMISSED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 28-01-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 28 TH JANUARY 2014 SATISH COPY OF THE ORDER IS FORWARDED TO : 17 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II PUNE 4. THE CIT-II, PUNE 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE