ACIT, V. The Republic (P) Ltd.,

ITA 165/RAN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0378 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROUSHAN SR S C
• Assessee Lawyers: V K JALAN FCS
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI CIRCUIT BENCH, RANCHI BEFORE SHRI N.S. SAINI, HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 165/RAN/2014 (ASST. YEAR : 2009-10) ACIT, CIRCLE-3, RANCHI VS. THE REPUBLIC (P) LTD., ATMA RAM BHAWAN, R.S. LANE, MAIN ROAD, RANCHI. PAN NO. AACCT 0051 D (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. JALAN FCS DEPARTMENT BY : SHRI DEEPAK ROUSHAN SR.SC DATE OF HEARING : 04/11/2015. DATE OF PRONOUNCEMENT : 04/11/2015. O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), RANCHI, DATED 20/02/2014. 2. GROUND NO.1 OF THE APPEAL, THE GRIEVANCE OF THE R EVENUE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN D ELETING THE ADDITION OF RS. 33 LAC ON ACCOUNT OF SHARE APPLICAT ION. 3 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE O RDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT ON PERUSA L OF THE BALANCE SHEET IT IS SEEN THAT THE ASSESSEE HAD INTRODUCED S HARE APPLICATION MONEY TO THE TUNE OF RS. 33 LAC. THE ASSESSING OFF ICER OBSERVED THAT 2 ITA NO. 165/RAN/2014 THE SHARE APPLICATION MONEY WAS INTRODUCED WITHOUT INCREASING THE AUTHORIZED SHARE CAPITAL OF THE COMPANY AND THE COM PANY NEITHER ALLOTTED SHARE NOR ANY SUBSCRIPTION TOOK PLACE. HE OBSERVED THAT ACCORDING TO THE ASSESSEE, NO ACTUAL PAYMENT WAS RE CEIVED BY THE COMPANY AND ON THE OTHER HAND ASSESSEE HAD CLAIMED THAT IT HAD GIVEN REMUNERATION TO THE DIRECTORS AND PAID RENT DURING THE FINANCIAL YEAR 2008-09. THUS, THE ASSESSING OFFICER OBSERVED THAT NO ACTUAL PAYMENT OF REMUNERATION AND RENT TOOK PLACE DURING THE FINA NCIAL YEAR AND, THEREFORE, ADDED RS. 33 LAC IN THE HANDS OF THE ASS ESSEE COMPANY. 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS ) OBSERVED THAT THE ASSESSING OFFICER WHILE MAKING THE ADDITIO N OBSERVED THAT THE ASSESSEE HAD INTRODUCED SHARE APPLICATION MONEY WIT HOUT INCREASING THE SHARE CAPITAL OF THE ASSESSEE COMPANY AND HAS ALSO OBSERVED THAT THE AMOUNT OF REMUNERATION AND RENT WHICH THE SHAREHOLD ERS HAD TAKEN WERE CAPITALIZED AS THE SHARE APPLICATION MONEY. A CCORDINGLY, THE SAME WAS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE COMPANY. THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE ASSESSEE HAS RAISED THAT THE ASSESSING OFFICER WAS NOT RIGHT IN MAKING ADDITION OF RS.33 LAC ON ACCOUNT OF SHARE APPLICATION MONEY WHI CH BELONGS TO THE DIRECTORS OF THE COMPANY AND WHICH WERE DULY DECLAR ED IN THEIR INDIVIDUAL RETURNS. THE ASSESSEE SUBMITTED COPY OF THE RETURN OF BHAGIRATHI DEVI BUDHIA, RAHUL BUDHIA (HUF), RAJENDR A PRASAD BUDHIA (HUF) AND RAJENDRA PRASAD BUDHIA AND MINTU BUDHIA. ALL THE RETURNS WERE DULY FILED BY THE ASSESSEE, WHEREIN THE INCOME , SO RECEIVED WAS DULY ASSESSED. THE SHARE APPLICATION MONEY GIVEN W AS DULY REFLECTED IN THE BALANCE SHEET OF ALL THE CONCERNED PERSONS I.E. BHAGIRATHI DEVI BUDHIA-RS. 11 LAC, RAHUL BUDHIA (HUF) RS. 5 LAC, RAJENDRA PRASAD BUDHIA (HUF) - RS. 5 LAC, RAJENDRA PRASAD BUDHIA RS. 10 LAC AND MINTU BUDHIA 2 LAC, TOTALLING TO RS. 33 LAC. ALL THE PERSONS HAVE SHOWN THEIR RETURNS OF INCOME WHICH ARE BHAGIRATHI DEVI BUDHIA RS.3,10,600/-, RAHUL BUDHIA (HUF) 8,75,620/-, RAJ ENDRA PRASAD 3 ITA NO. 165/RAN/2014 BUDHIA (HUF) RS. 5,39,840/- AND RAJENDRA PRASAD B UDHIA RS.9,83,450/-AND MINTU BUDHIA RS. 8,83,530/-. T HE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT ALL THE ABOVE PE RSONS WERE ALREADY SHAREHOLDERS IN THIS ASSESSEE COMPANY AND ARE OLD A SSESSEE FILING THEIR RETURNS OF INCOME AT ALL TIMES. HE OBSERVED THAT R ECENTLY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. M/S. LOVELY EXPORTS (P) LTD . (SLP NO.CC 11993/2007) HAS HELD THAT ONCE TRANSACTION IS CONFIRMED BY THE SHAREHOLDERS, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY. THEREFORE, HE DELETED THE ADDITION OF RS. 33 LAC. 5. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF COMMISSIONER OF INCOME TAX ( APPEALS). 6 . WE FIND THAT IN THE INSTANT CASE, THE ASSESSING O FFICER INSTEAD OF MAKING PAYMENT OF RENT AND REMUNERATION TO DIRECTOR S, AGGREGATING TO RS. 33 LAC, HAS CONVERTED THE SAID LIABILITY INTO S HARE APPLICATION MONEY FROM ITS DIRECTORS. ON THE ABOVE FACTS AS THE ASSE SSING OFFICER FOUND THAT THERE WAS NO ACTUAL PAYMENT OF RENT AND REMUNE RATION DURING THE YEAR BY THE ASSESSEE COMPANY AND, THEREFORE, THE AS SESSING OFFICER DISALLOWED AND ADDED RS. 33 LAC TO THE INCOME OF TH E ASSESSEE COMPANY. WE FIND THAT IT IS NOT IN DISPUTE THAT TH E AMOUNT OF REMUNERATION AND RENT CLAIMED BY THE ASSESSEE COMPA NY WAS REASONABLE AND WAS NOT EXCESSIVE WITHIN THE MEANING OF SEC. 40A(2) OF THE ACT. IN OUR OPINION, SIMPLY BECAUSE THERE WAS NO ACTUAL PAYMENT OF THE GENUINE LIABILITY OF THE ASSESSEE COMPANY AND T HE SAID LIABILITY WAS CONVERTED INTO SHARE APPLICATION MONEY DISALLOWANCE MADE BY THE ASSESSING OFFICER ON THE ABOVE GROUND IS CLEARLY UN TENABLE. IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE COMPANY WAS N OT LEGALLY LIABLE TO PAY RENT AND REMUNERATION, AGGREGATING TO RS. 33 LA C, DURING THE YEAR UNDER CONSIDERATION. THE CONVERSION OF THE ABOVE L IABILITY INTO SHARE APPLICATION MONEY, FROM THE PERSONS WHO WERE ENTITL ED TO RECEIVE THE SAID AMOUNT FROM THE COMPANY IN EFFECT TANTAMOUNT T O DISCHARGE OF THE 4 ITA NO. 165/RAN/2014 LIABILITY OF THE COMPANY TO PAY RENT AND REMUNERATI ON. IT IS OBSERVED THAT THE SYSTEM OF ACCOUNTING EMPLOYED BY THE ASSES SEE COMPANY WAS MERCANTILE AND THEREFORE, NON-PAYMENT OF GENUINE BU SINESS EXPENDITURE DURING THE YEAR CANNOT BE A GROUND FOR NOT ALLOWING THE SAID EXPENDITURE AND ADDING THE SAME TO THE INCOME OF TH E ASSESSEE COMPANY. WE, THEREFORE, FOR THE ABOVE REASONS CON FIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND DISMIS S THE GROUND OF APPEAL OF THE REVENUE. 7 . IN GROUND NO.2 OF THE APPEAL, THE GRIEVANCE OF TH E REVENUE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN RESTRICTING THE DISALLOWANCE TO 25% UNDER THE HEAD LIASIONING CHAR GES. 8 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE O RDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSES SEE HAD CLAIMED RS.61,81,510/- AS LIASIONING CHARGES. ON PERUSAL O F CONFIRMATION, THE ASSESSING OFFICER OBSERVED THAT LIASIONING CHARGES OF RS. 25,28,643/- WAS TAKEN FROM SUNDRY CREDITORS, BUT THE ASSESSEE H AD CLAIMED THAT LIASIONING CHARGES ARE THE EXPENSES INCURRED BY IT WHILE SELLING ITS TRACTORS. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SHOWN THAT IT HAD ALSO BEEN TAKING LIASIONING CHARGES FRO M SUNDRY CREDITORS THAT MEANS EITHER THE ASSESSEE HAD PAID LIASIONING CHARGES TO THESE PERSONS DURING THE YEAR WHICH WAS NOT SPENT BY THEM OR THIS AMOUNT WAS MERELY ADJUSTMENT ENTRY TO INTRODUCE THE CASH C REDIT IN THE BUSINESS. THE ASSESSING OFFICER ALSO NOTED THAT S UNDRY CREDITORS FROM WHOM THE COMPANY HAD CLAIMED TO RECEIVE LIASIONING CHARGES OF RS.25,28,643/- DURING THE YEAR ARE THE EMPLOYEES OF THE COMPANY BECAUSE THE ADDRESSES PROVIDED BY THE ASSESSEE FOR THEIR IDENTITY IS OF ONLY ONE PREMISES WHICH IS ASSESSEES ADDRESS ALSO. THEREFORE, HE DISALLOWED DEDUCTION FOR LIASIONING CHARGES CLAIMED BY THE ASSESSEE TO THE EXTENT OF RS. 25,28,643/-. 5 ITA NO. 165/RAN/2014 9. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE SIMILAR ADDITION WAS MADE IN THE EARLIER A SSESSMENT YEAR ALSO. AGAINST WHICH THE TRIBUNAL VIDE ITS ORDER DATED 26/ 11/2010 PASSED IN ITA NOS. 138 & 233/RAN/2009 IN THE CASE OF ASSESSEE ITSELF HAS RESTRICTED THE DISALLOWANCE TO 25%. THEREFORE, COM MISSIONER OF INCOME TAX (APPEALS) FOLLOWING THE RULE OF CONSISTE NCY, RESTRICTED THE DISALLOWANCE ON LIASIONING CHARGES TO 25% OF THE TO TAL LIASIONING CHARGES OF RS. 61,81,510/- CLAIMED BY THE ASSESSEE. AS A R ESULT, OUT OF TOTAL DISALLOWANCE OF RS. 25,28,643/- UNDER THIS HEAD MAD E BY THE ASSESSING OFFICER RS. 15,45,378/- WAS CONFIRMED AND RS. 9,83 ,265/- WAS DELETED BY THE COMMISSIONER OF INCOME TAX (APPEALS). 10 . DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE AS SESSEE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). 11. WE FIND THAT THE ASSESSING OFFICER MADE DISALLOWANC E UNDER THE HEAD LIASIONING CHARGES OF RS. 25,28,643/-. ON A PPEAL, COMMISSIONER OF INCOME TAX (APPEALS) FOLLOWING THE ORDER OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF IN THE ASSE SSMENT YEAR 2005-06, RESTRICTED THE DISALLOWANCE TO 25% OF THE TOTAL LIA SIONING CHARGES PAID BY THE ASSESSEE OF RS. 61,81,510/- AND THUS RESTRIC TED DISALLOWANCE AT RS. 15,45,378/- AND DELETED THE BALANCE DISALLOWANC E OF RS. 9,83,265/-. THE DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT AS TO WHY THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSEL F PASSED IN THE ASSESSMENT YEAR 2005-06 SHOULD NOT BE FOLLOWED. IN ABSENCE OF ANY DISTINGUISHING FEATURES BEING POINTED OUT BY THE DE PARTMENTAL REPRESENTATIVE, WE FIND NO INFIRMITY IN THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFIRMED AND THIS GR OUND OF APPEAL OF THE REVENUE IS DISMISSED. 6 ITA NO. 165/RAN/2014 12. IN GROUND NO.3 OF THE APPEAL, THE GRIEVANCE OF THE REVENUE IS THAT COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN RESTRICTING THE ADDITION UNDER THE HEAD GIFT TO CUSTOMER TO 10%. 13. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORD ERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSES SEE IN THE PROFIT & LOSS ACCOUNT DEBITED RS. 1,80,293/- UNDER THE HEAD GIFT TO CUSTOMERS. THE ASSESSING OFFICER OBSERVED THAT FOUR CUSTOMERS WERE GIVEN CASH OR KIND ON DIFFERENT DATES. SINCE, THIS WAS THE AMOUN T WHICH PRINCIPALS HYUNDAI MOTORS LTD. AND MAHINDRA & MAHINDRA LTD. HA D PAID, THEREFORE IT CANNOT BE SAID THAT ACTUAL EXPENSES HAD BEEN INC URRED BY THE ASSESSEE. 14. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPEAL S) OBSERVED THAT THE ASSESSEE DEBITED RS. 1,80,293/- UNDER THE HEAD GIFT TO CUSTOMERS AND THE ONUS IS ON THE ASSESSEE TO FURNIS H ALL THE RELEVANT BILLS AND VOUCHERS IN SUPPORT OF CLAIM OF THE ASSES SEE UNDER THE INCOME TAX ACT, 1961. IN ABSENCE OF BILLS AND VOUCHERS TH E ASSESSING OFFICER HAD RIGHTLY MADE THE DISALLOWANCE BUT CONSIDERING T HE FACTS OF THE CASE, THIS IS SLIGHTLY ON THE HIGHER SIDE. HE OBSERVED T HAT IT WOULD BE REASONABLE TO RESTRICT THE DISALLOWANCE TO 10% OF E XPENSES CLAIMED BEING RS. 18029/- AS AGAINST ADDITION OF RS. 1,80,2 93/-MADE BY THE ASSESSING OFFICER. ACCORDINGLY, HE DELETED THE DIS ALLOWANCE OF RS.1,62,264/-. 15. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME T AX (APPEALS) AND SUBMITTED THAT THE RECEIPT FROM THE HYUNDAI MOTORS LTD. AND MAHINDRA & MAHINDRA LTD. WAS INCLUDED IN THE INCOME AND, THERE FORE, THERE WAS NO REASON TO DISALLOW THE PAYMENT CLAIMED AS EXPENDITU RE. 7 ITA NO. 165/RAN/2014 16. WE FIND THAT, IN THE INSTANT CASE, THE ASSESSING OF FICER DISALLOWED THE CLAIM OF THE ASSESSEE OF EXPENDITURE OF RS. 1,8 0,293/- UNDER THE HEAD GIFT TO CUSTOMERS ON THE GROUND THAT THE SAI D AMOUNT WAS RECEIVED BY THE ASSESSEE FROM HYUNDAI MOTORS LTD. A ND MAHINDRA & MAHINDRA LTD. AND THEREFORE, THE PAYMENT WAS IN FAC T NOT THE EXPENDITURE OF THE ASSESSEE. HOWEVER, WE FIND THAT THE REVENUE COULD NOT CONTROVERT THE SUBMISSION OF THE ASSESSEE THAT THE RECEIPT FROM HYUNDAI MOTORS LTD. AND MAHINDRA & MAHINDRA LTD. WE RE INCLUDED IN THE INCOME OF THE ASSESSEE AND, THEREFORE THE PAYMENT M ADE BY THE ASSESSEE IS ALLOWABLE AS EXPENDITURE. IN THE ABOVE CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE AND ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 17. IN GROUND NO.4 OF THE APPEAL, THE GRIEVANCE OF THE REVENUE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITION OF RS. 4,88,615/- UNDER THE HEAD TRAVELLI NG AND CONVEYANCE. 18. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORD ERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSES SEE CLAIMED RS.24,43,077/- UNDER THE HEAD TRAVELLING AND CONVEY ANCE EXPENSES. HE OBSERVED THAT SINCE THE CLAIMED EXPENDITURE CANN OT BE VERIFIED AND JUSTIFIED IN ABSENCE OF SUPPORTING DETAILS AS WELL AS THESE EXPENSES ALSO INCLUDE PERSONAL NATURE OF EXPENSES INCURRED BY THE DIRECTORS ON TOUR, SO 20% OF THE SAID AMOUNT WAS CLAIMED AS EXPENDITUR E WAS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 19. ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) OBS ERVED THAT IN THE EARLIER ASSESSMENT YEAR IN THE CASE OF ASSES SEE ITSELF, THE COMMISSIONER OF INCOME TAX (APPEALS) AND THE TRIBUN AL HAD DELETED THE ADDITION MADE BY THE ASSESSING OFFICER UNDER TH E HEAD TRAVELLING AND CONVEYANCE, THEREFORE FOLLOWING THE SAME, THE C OMMISSIONER OF INCOME TAX (APPEALS) DELETED THE DISALLOWANCE. 8 ITA NO. 165/RAN/2014 20. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF THE COMMISSIONER OF INCOME T AX (APPEALS). 21. WE FIND THAT THE DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). HE ALSO COULD NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT THE EXPENSES INCURRED ON ACCOUNT OF TRAVELLING AND CONVEYANCE WAS ON PERSONAL ACCOUNTS OF THE DIRECTORS. IN ABSENCE OF ANY SUCH MATERIAL BEING BROUGHT ON RECORD, WE FIND NO INFIRMITY IN TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFI RMED AND THE GROUND OF APPEAL OF THE DEPARTMENT IS DISMISSED. 22. THE GROUND NO.5 OF THE APPEAL, THE GRIEVANCE OF THE REVENUE IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DELETING THE ADDITION OF RS. 3,35,778/- UNDER THE HEAD REPAIR & MAINTENANCE. 23. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORD ERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS DEBITED RS. 33, 57,789/- UNDER THE HEAD REPAIR AND MAINTENANCE OF VEHICLE. IN ABSEN CE OF BILLS AND VOUCHERS, 10% OF THE EXPENSES WAS DISALLOWED AND TH EREBY THE ADDITION OF RS. 3,35,778/- WAS MADE TO THE INCOME OF THE ASS ESSEE. 24. ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) OBS ERVED THAT IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005-06, THE COMMISSIONER OF INCOME TAX (APPEALS), RANCHI HAD DELETED THE ENT IRE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING THAT I AM OF THE VIEW THAT SEEING THE NATURE OF BUSINESS AND TURNOVER SHOWN BY THE AP PELLANT, EXPENSES SHOWN IS NOT EXCESSIVE. FOLLOWING THE SAME, THE ADDITION MADE BY THE ASSESSING OFFICER WAS DELETED BY THE COMMISSIONER O F INCOME TAX (APPEALS). 9 ITA NO. 165/RAN/2014 25. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF COMMISSIONER OF INCOME TAX ( APPEALS). 26. WE FIND THAT THE COMMISSIONER OF INCOME TAX (APPEAL S) DELETED THE DISALLOWANCE OF RS. 3,35,778/- MADE UNDER THE H EAD REPAIR AND MAINTENANCE OF VEHICLE BY FOLLOWING THE ORDER OF CO MMISSIONER OF INCOME TAX (APPEALS) IN ASSESSEES OWN CASE FOR ASS ESSMENT YEAR 2005-06. NO MATERIAL WAS BROUGHT ON RECORD BY THE DEPARTMENTAL REPRESENTATIVE TO SHOW THAT THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS) WAS VARIED IN APPEAL BY ANY HIGHER FO RUM AND ALSO NO DISTINGUISH FEATURES HAVE BEEN POINTED DURING THE Y EAR UNDER CONSIDERATION. HENCE, WE DO NOT FIND ANY GOOD REA SON TO INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE I S DISMISSED. 27. IN GROUND NO.6 OF THE APPEAL, THE GRIEVANCE OF THE REVENUE IS THAT COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN RESTRICTING THE ADDITION UNDER THE HEAD DIESEL, PETROL AND MOBILE EXPENSES TO 5% OF THE EXPENSES CLAIMED. 28. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORD ERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSES SEE HAD CLAIMED RS.66,136.3 UNDER THE HEAD DIESEL, PETROL AND MOBI LE EXPENSES. IN ABSENCE OF ANY BILLS AND VOUCHERS, THE ASSESSING OF FICER DISALLOWED 10% OF THE EXPENSES BEING RS. 66,136.3/- AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 29. ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) OBS ERVED THAT SIMILAR ADDITION WAS MADE IN ASSESSMENT YEAR 2005-0 6 AND THE TRIBUNAL RESTRICTED THE DISALLOWANCE TO 5%. HE, THEREFORE, FOLLOWING THE ORDER OF 10 ITA NO. 165/RAN/2014 THE TRIBUNAL RESTRICTED THE DISALLOWANCE TO RS. 33, 068/- IN PLACE OF RS.66,136/- MADE BY THE ASSESSING OFFICER. 30 . DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER O F THE ASSESSING OFFICER WHEREAS AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUPPORTED THE ORDER OF COMMISSIONER OF INCOME TAX ( APPEALS). 31. WE FIND THAT THE COMMISSIONER OF INCOME TAX (APPEAL S) BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF IN ASSESSMENT YEAR 2005-06, RESTRICTED THE DISALLOWANC E UNDER THE HEAD DIESEL, PETROL AND MOBILE EXPENSES FROM 10% OF TH E TOTAL EXPENSES TO 5% OF THE TOTAL EXPENSES. THE DEPARTMENTAL REPRESENT ATIVE COULD NOT POINT OUT ANY GOOD REASON TO NOT TO FOLLOW THE ORDE R OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF IN THE ASSESSMENT YEAR 2005-06. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMI SSIONER OF INCOME TAX (APPEALS) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 32 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON WEDNESDAY, THE 4 TH DAY OF NOVEMBER, 2015 AT RANCHI. SD/- SD/- (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 04 TH NOVEMBER, 2015. VR/- 11 ITA NO. 165/RAN/2014 COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., RANCHI 12 ITA NO. 165/RAN/2014 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 04/11/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 05/11/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 05/11/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 05/11/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 05/11/2015 SR.PS 6. DATE OF PRONOUNCEMENT 04/11/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 05/11/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER