Sushila Devi Jaiswal, Kolkata V. DCIT, Circle-48, Kolkata, Kolkata

ITA 2064/KOL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9372 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 27-10-2016
• Court: TRIBUNAL
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Retrospective amendment
• Section: 143(3); 234B; 133(6); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENC H KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L.SAI NI, AM ./ ITA NO.2064/KOL/2016 ( / ASSESSMENT YEAR:2008-09) SUSHILA DEVI JAISWAL, C/O D J SHAH & CO., KALYAN BHAVAN, 2 ELGIN ROAD, KOLKATA-700020 VS. DCIT, CIRCLE-48, KOLKATA ./ ./PAN/GIR NO.: ACWPJ 6786 G ( /APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI MIRAJ D SHAH, ADVOCATE REVENUE BY : NONE / DATE OF HEARING : 13/01/2017 /DATE OF PRONOUNCEMENT 22/02/2017 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTAINI NG TO THE ASSESSMENT YEAR 2008-09, IS DIRECTED AGAINST THE OR DER PASSED BY LD. CIT(A)-14, KOLKATA IN APPEAL NO.223/CIT(A)-XXX/CIR- 487/2010-11, DATED 03.07.2015, WHICH IN TURN ARISES OUT OF AN ORDER PA SSED BY THE ASSESSING OFFICER (AO) UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961, (HEREINAFTER REFERRED TO AS THE ACT), DATED 27.12 .2010. 2. BRIEF FACTS OF THE CASE QUA THE ASSESSEE ARE THA T THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 29.09.2008 DECLARING TOTAL INCOME OF RS.16,70,339/- AND THE SAME WAS PRO CESSED U/S.143(1) OF THE ACT ON 23.03.2009. LATER ON ASSESSEES CASE WAS SELECTED FOR SCRUTINY U/S.143(3) OF THE ACT AND THE AO HAS COMPL ETED THE ASSESSMENT BY MAKING THE DISALLOWANCE U/S.40(A)(IA) OF THE ACT AT RS.5,65,097/- AND DISALLOWANCE OF OTHER CHARGES RS.40,060/-. ITA NO.2064/16 SUSHILA DEVI JAISWAL 2 3. AGGRIEVED FROM THE ORDER OF ASSESSING OFFICER, T HE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE ORDER PASSED BY THE AO OBSERVING THE FOLLOWINGS :- DECISION: THE APPELLANT'S HAS CLAIMED THAT PROVISIONS UNDER S ECTION 194C WERE NOT APPLICABLE IN THE ASSESSEE'S CASE. IT WAS STATE D FIRSTLY THAT THE IMPUGNED PAYMENTS TO PARTIES WERE INCLUDING SUPPLY OF MATERIAL AND THEREFORE SUCH PAYMENTS COULD NOT BE REFLECTED TO D EDUCTION U/S. 194C OF THE I.T. ACT. HOWEVER, THE ASSESSEE'S ASSER TION IN THIS REGARD IS NOT FOUND TO BE TENABLE AS NO SUPPORTING EVIDENC ES OR COPIES OF BILLS WERE PRODUCED TO INDICATE THAT THE PAYMENTS M ADE INCLUDED SUPPLY OF MATERIAL NOR WAS SUCH A PLEA RAISED BEFOR E THE A.O. MOREOVER, THE ASSESSEE WAS ALSO UNABLE TO SUBSTANTI ATE THE ALTERNATE PLEA THAT SINGLE OR AGGREGATE PAYMENTS MA DE TO PARTIES ENUMERATED ABOVE WERE BELOW THE PRESCRIBED UNLIT AS NO SUBSTANTIVE EVIDENCE WAS PRODUCED TO SUBSTANTIATE THIS CLAIM WI TH DOCUMENTARY EVIDENCE BEFORE THE AO OR DURING APPELLATE PROCEEDI NGS. HENCE, THE CONTENTIONS MADE BY THE APPELLANT'S A.R. IN THIS RE GARD ARE FOUND TO BE DEVOID OF SUBSTANCE AND. THE CLAIMS MADE THEREUP ON ARE FOUND TO BE NOT ACCEPTABLE. FURTHER, THE APPELLANT'S A.R HAS CITED SEVERAL JUDI CIAL DECISIONS THAT THE ASSESSEE WAS NOT LIABLE FOR DISALLOWANCE UNDER SEC 40(A) (IA) KEEPING IN VIEW THE ISSUE THAT AMENDMENTS TO THE FI NANCE ACT,2010 WERE HELD TO HAVE RETROSPECTIVE EFFECT AND PROVISIO NS U/S 40(A)(IA) WERE NOT ATTRACTED IF THE PAYMENTS UNDER 192 C WERE MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. THE CAS E LAWS CITED WERE: 'CALCUTTA HIGH COURT IN CASE OF CIT V. VIRGIN CREAT IONS [IT APPEAL NO. 302 OF 2011, DATED 23-11-2011] HAS ALSO EXPRESSED S IMILAR VIEW. IN THIS CASE ASSESSEE DEDUCTED TAX AT SOURCE FROM THE PAID CHARGES BETWEEN 1-4-2005 AND 28-4-2006 AND THE SAME WAS DEP OSITED IN JULY AND AUGUST, 2006, I.E., WELL BEFORE THE DUE DA TE OF FILING OF THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS FACTUAL POSITION WAS UNDISPUTED. IT WAS HELD THAT IN VIEW O F THE AUTHORITATIVE PRONOUNCEMENT OF SC IN CASE OF ALLIED MOTORS (P.) L TD. V. CIT [1997] 224 ITR 677/ 91TAXMAN 205 AND ALSO IN THE CASE CIT V. ALOM EXTRUSIONS' LTD. [2009] 319 ITR 306/ 185TAXMAN416 ( SC) SECTION 40(A)(IA) HAD TO BE GIVEN RETROSPECTIVE APPLICATION . SIMILAR VIEW WAS HELD BY THE HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF ITO VS ANIL KUMAR & CO. 31 TAXMANN.COM .370 (2013) AND THE HON' BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS ASHOK J PATEL (201 4) 43 TAXMANN.COM 227 DATED 02/12/2013. IN ADDITION, IT WAS CONTENDED THAT IN VIEW OF AMEND MENT MADE BY FINANCE ACT. 2010 WHICH PROVIDED THAT IF THE TDS WA S DEDUCTED BEFORE THE DUE DATE FILING RETURN U/S. 139(1) OF TH E ACT, THEN THE ITA NO.2064/16 SUSHILA DEVI JAISWAL 3 DISALLOWANCE U/S 40(A)(IA) OF THE ACT SHALL NOT APP LY. THE APPELLANT HAS CITED SEVERAL CASES LAWS, VIZ. CIT VS. RAJINDER KUMAR (2013)39 TAXMAN 126 [DELHI] AND CIT VS. VIRGIN CREATIONS [IT APPEAL NO.302 OF 2011ETC. IN SUPPORT OF ITS CONTENTION THAT AMENDMEN T MADE TO SECTION 40(A)(IA) BY FINANCE ACT, 2010 AND FINANCE ACT 2012 WOULD HAVE RETROSPECTIVE EFFECT. HOWEVER, THE APPELLANT'S AR HAS. NOT PRODUCED ANY S UPPORTING EVIDENCE BEFORE THE A.O DURING THE ASSESSMENT PROCE EDINGS OR IN APPELLATE PROCEEDING TO SUPPORT THE CONTENTION THAT TDS WAS IN FACT DEDUCTED U/S.192C AND DEPOSITED BEFORE DUE DATE OF FILING OF RETURN FOR THE RELEVANT' ASSESSMENT YEAR: 2008-09 UNDER CO NSIDERATION. HENCE, THE RATIO OF THE CASE LAWS CITED ARE FOUND T O BE NOT APPLICABLE TO THE APPELLANT AS FACTS AND CIRCUMSTANCES OF ITS CASE ARE FOUND TO BE DISTINGUISHABLE. THEREFORE, THE DISALLOWANCE MAD E BY THE A.O.U/S 40(A)(IA) OF THE ACT IS CONFIRMED. THIS GROUND OF A PPEAL IS DISMISSED. 5.3. GROUND NOS. 3:. FOR THE IN THE FACTS AND CIRCU MSTANCES OF THE CASE THE ASSESSING OFFICER ERRED IN MAKING ADDITION OF RS.40,060/- BEING 5% OF DELIVERY CHARGED EXPENSES. THE ADDITION MADE IS UNCALLED FOR, UNJUSTIFIED AND UNWARRANTED AND HENCE THE SAME BE DELETED. DECISION: THE A.O IS FOUND TO HAVE MADE THE DISALLO WANCE OF AN ESTIMATED 5% OF THE EXPENDITURE DEBITED AS DELIVERY EXPENSES TO THE P&L A/C HOLDING THAT THE SUPPORTING VOUCHERS WERE N OT PROPERLY VOUCHED. IT IS WELL SETTLED THAT THE ONUS LIES UPON THE ASSESSEE TO SUBSTANTIATE THE CLAIM FOR DEDUCTION OF EXPENDITURE WITH PROPER DOCUMENTARY EVIDENCE, CONSIDERING THE TOTALITY OF F ACTS OF THE CASE THE DISALLOWANCE MADE BY THE A.O APPEARS TO BE REAS ONABLE. THE APPELLANT HAS NOT PRESSED THIS GROUND AND NO WRITTE N SUBMISSION WAS FILED IN SUPPORT OF THIS GROUND OF APPEAL. THE ADDI TION OF RS.40,060/- MADE BY THE A.O. IS CONFIRMED. THIS GROUND IS DISMI SSED. 5. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A) , THE ASSESSEE IS IN FURTHER APPEAL BEFORE US AND HAS TAKEN THE FOLLOWIN G GROUNDS OF APPEAL :- 1. FOR THAT THE LD. CIT APPEAL HAS PASSED THE ORDE R WITHOUT CONSIDERING THE WRITTEN SUBMISSION ON RECORDS WHICH WAS FILED ON 10/01/2014 & RE-SUBMITTED ON 22/01/2015. THUS TH E ORDER OF THE LD. CIT APPEAL BE SET ASIDE. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE APPELLATE ORDER PASSED WAS IN VIOLATION OF PRINCIPALS OF NATU RAL JUSTICE HENCE IS BAD IN LAW AND BE QUASHED. 3 FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT APPEAL ERRED IN MAKING ADDITION OF RS.5,65,097/- U/ S 40A(IA) OF THE IT ACT 1961. ITA NO.2064/16 SUSHILA DEVI JAISWAL 4 4. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE C ASE THE LD. CIT APPEAL ERRED IN MAKING ADDITION OF RS.40,060/- 5% O F DELIVERY CHARGED EXPENSES. THE ADDITION MADE IS UNCALLED FOR , UNJUSTIFIED AND UNWARRANTED AND HENCE THE SAME BE D ELETED. 5. FOR THAT THE INTEREST COMPUTED U/S 234B OF THE I T ACT 1961 IS OVER CHARGED AND WRONGLY CALCULATED AND OR IS NOT A PPLICABLE TO THE ASSESSEE CASE HENCE THE INTEREST BE DELETED AND OR CORRECTLY COMPUTED. 6. FOR THAT THE LD. CIT APPEAL DID NOT GRANT PROPE R CREDIT FOR PRE PAID TAXES THE LD. CIT APPEAL BE DIRECTED TO ALLOW THE SAME AS PER LAW. 7. THE APPELLANT CRAVES LEAVE TO PRESS NEW, ADDITI ONAL GROUNDS OF APPEAL OR MODIFY, WITHDRAW ANY OF THE ABOVE GROUNDS AT THE TIME OF HEARING OF THE APPEAL. 5.1 ALTHOUGH, IN THIS APPEAL THE ASSESSEE HAS RAISE D MULTIPLE GROUNDS OF APPEAL, BUT AT THE TIME OF HEARING, THE MAIN GRIEVA NCE OF THE ASSESSEE HAS BEEN CONFIRMED TO GROUND NO.3 & 4 AND OTHER GROUNDS WERE NOT PRESSED. 5.2. THE THIRD GROUND RELATES TO ADDITION MADE BY LD. CIT(A) OF RS.5,65,097/- U/S. 40(A)(IA) OF THE ACT. 5.3 LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US THAT THE ABOVE PAYMENTS WERE INCLUDING SUPPLY OF MATERIAL AND THER EFORE SUCH PAYMENTS COULD NOT BE SUBJECT TO DEDUCTION U/S 194C OF THE A CT. THE AO MERELY WENT BY THE NOMENCLATURE GIVEN IN THE PROFIT LOSS A CCOUNT. HAD THE AO EXAMINED THE BILLS THEN IT WOULD BE SEEN THAT SUBST ANTIAL PORTION OF THE PAYMENTS WERE FOR SUPPLY OF MATERIAL WITH LABOR AND IN SUCH CASES NO TDS U/S 194C OF THE ACT IS REQUIRED. EVEN IF IT HELD TH AT ON LABOR PORTION THE TDS WAS TO BE DEDUCTED THEN THE AO HAD TO EXCLUDE T HE MATERIAL PORTION IN THE BILLS AND THEN EXAMINE IF THE BALANCE PAYMEN T OF LABOR CHARGES ATTRACT THE TDS LIMIT. ONLY IF THE SINGLY OR AGGREG ATE PAYMENT EXCEEDS THE TDS LIMIT THEN THE PROVISIONS OF SECTION 194C OF TH E ACT WOULD APPLY. ITA NO.2064/16 SUSHILA DEVI JAISWAL 5 THUS THE AO BE DIRECTED TO EXAMINE THE BILLS AND TH EN ADJUDICATE THE MATTER IN LINES OF THE ABOVE SUBMISSIONS. THE LD AR FOR THE ASSESSEE HAS POINTED OUT THAT IN THE CASE UNDER CONSIDERATION THE RECIPIENT OF THE INCOME HAS PAID THE TAXES ON BEHALF OF THE ASSESSE THEREFORE IT WOULD BE SUFFICIENT COMPLI ANCE. FOR THAT, THE LD AR FOR THE ASSESSE HAS RELIED ON THE FOLLOWING JUDG MENTS: THE HON`BLE ITAT KOLKATA BENCH IN THE CASE OF M/S V AS ELECTRONICS VS. ACIT, ITA NO.662/KOL/2013, DATED 24.11.2015, WHEREI N IT HAS BEEN HELD AS UNDER :- 4. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE FAIR LY CONCEDED THE GROUNDS BUT REQUESTED ONLY ON THE ISSUE OF APPLICAB ILITY OF SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT, WHICH IS H ELD TO BE RETROSPECTIVE BY HON'BLE DELHI HIGH COURT IN THE CA SE OF CIT VS. ANSAL LAND MARK TOWNSHIP P. LTD. (2015) 377 ITR 635 (DEL), WHEREIN THE AO IS DIRECTED TO VERIFY WHETHER THE RE CIPIENTS HAVE INCLUDED THE RECEIPTS PAID BY THE ASSESSEE IN THEIR RESPECTIVE RETURNS OF INCOME AND ALSO PAID TAXES ON THE SAME. WHEN THIS PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WAS CONFRONTED TO LD. SR. DR, HE FAIRLY CONCEDED THE POSITION AND URGED THE BENCH TO SET ASIDE THE MATTER TO THE FILE OF THE AO. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE ARE INCLINED TO SET A SIDE THE ISSUE TO THE FILE OF THE AO AND ACCORDINGLY, WE DIRECT THE A O TO VERIFY WHETHER THE RECIPIENTS HAVE INCLUDED THE INCOME IN THEIR RESPECTIVE RETURNS AND ALSO PAID TAXES ON THE SAME. THE ASSESS EE WILL PROVIDE THE DETAILS OF RECIPIENTS I.E. THEIR ASSESSMENT PAR TICULARS ETC. TO THE AO SO THAT THE AO CAN VERIFY. IN CASE THE RECIPIENT PARTIES ARE NOT COOPERATING IN PROVIDING DETAILS, THE AO CAN CALL F OR THE INFORMATION U/S. 133(6) OF THE ACT FOR VERIFICATION OF THE SAME . ACCORDINGLY, THIS ISSUE IS REMITTED BACK TO THE FILE OF AO TO DECIDE IN TERMS OF THE ABOVE DIRECTIONS. THIS ISSUE OF ASSESSEE'S APPEAL I S ALLOWED FOR STATISTICAL PURPOSES. THE LD AR FOR THE ASSESSE SUBMITTED THAT IN THE ASS ESSEE`S CASE UNDER CONSIDERATION, THE RECIPIENT OF THE INCOME HAD PAID THE TAXES ON BEHALF OF THE ASSESSE (DEEUCTEE) AND THIS ASPECT HAD NOT BEEN VERIFIED BY THE ITA NO.2064/16 SUSHILA DEVI JAISWAL 6 ASSESSING OFFICER, DURING THE ASSESSMENT PROCEEDING S, THEREFORE, HE REQUESTED THE BENCH TO SEND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY THE SAME. 5.4. LD. DR FOR THE REVENUE HAS ALSO PRIMARILY RELI ED ON THE FINDINGS OF THE AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER P ARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 5.5. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF THE ASSESSE, AS THE PROPOSITION CANVASSED BY LD. AR FOR THE ASSE SSEE ARE SUPPORTED BY THE DECISION OF ITAT IN THE CASE OF VAS ELECTRONICS (SUPRA) AND THE FACTS NARRATED BY HIM ABOVE. THE LD. AR FOR THE ASSESSEE HAS RIGHTLY POINTED OUT THAT APPLICABILITY OF SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT WHICH IS HELD TO BE RETROSPECTIVE BY HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP P. LTD. (2015) 377 ITR 635 (DEL), WHEREIN THE AO IS DIRECTED TO VERIFY WHETHER THE RE CIPIENTS HAVE INCLUDED THE RECEIPTS PAID BY THE ASSESSEE IN THEIR RESPECTI VE RETURNS OF INCOME AND ALSO PAID TAXES ON THE SAME. THEREFORE, WE INCL INE TO SET ASIDE THE ISSUE TO THE FILE OF AO AND ACCORDINGLY, WE DIRECT THE AO TO VERIFY AS TO WHETHER THE RECIPIENTS HAVE INCLUDED THE INCOME IN THEIR RESPECTIVE RETURNS AND ALSO PAID TAXES ON THE SAME. THE ASSESS EE WILL PROVIDE THE DETAILS OF RECIPIENTS I.E. THEIR ASSESSMENT PARTICU LARS ETC. TO THE AO SO THAT THE AO CAN VERIFY. IN CASE THE RECIPIENT PARTIES AR E NOT COOPERATING IN PROVIDING DETAILS, THE AO CAN CALL FOR THE INFORMAT ION U/S. 133(6) OF THE ACT FOR VERIFICATION OF THE SAME. ACCORDINGLY, THIS ISS UE IS REMITTED BACK TO THE ITA NO.2064/16 SUSHILA DEVI JAISWAL 7 FILE OF AO TO DECIDE IN TERMS OF THE ABOVE DIRECTIO NS. THIS ISSUE OF ASSESSEE'S APPEAL IS ALLOWED FOR STATISTICAL PURPOS ES. 5.6 IN THE RESULT, THE APPEAL FILED BY THE ASSESSE ON GROUND NO.3 IS ALLOWED FOR STATISTICAL PURPOSES. 6. GROUND NO.4 RELATES TO ADHOC ADDITION OF RS.40,0 60/- BEING 5% OF DELIVERY CHARGES MADE BY THE AO. 6.1 LD. AR FOR THE ASSESSEE HAS SUBMITTED THAT AO W AS WRONG IN MAKING THE ADDITION ON ADHOC BASIS @5% OF DELIVERY CHARGES. TH E ASSESSEE HAS SUBMITTED THE VOUCHERS AND EVIDENCE TO THE AO AND WITHOUT BRI NING ANY SPECIFIC DEFECTS IN THE VOUCHERS AND SUBMISSIONS, THE ADHOC DISALLOWANC E @5% IS NOT PERMITTED. THE AO WITHOUT REJECTING THE BOOKS OF ACCOUNTS MADE THE ADHOC ADDITION, WHICH IS NOT PERMISSIBLE UNDER THE ACT. IN ADDITION TO TH IS, LD. AR FOR THE ASSESSEE HAS RELIED ON THE JUDGMENT OF HON`BLE ITAT KOLKATA BENC H IN THE CASE OF AMRIK SINGH, ITA NO.987/KOL/2010, WHEREIN IT WAS HELD AS UNDER :- 3. IN REGARD TO ITEMS (B), (C) & (D) ABOVE, WE OBSE RVE THAT THE A O. HAS MADE ADDITIONS OF RS.24,665/-, RS.9,371/- AND RS.32 ,469/- DISALLOWING 10% OUT OF THE EXPENDITURE CLAIMED UNDER THE HEADS 'TRAVELLING & CONVEYANCE', 'TELEPHONE' AND 'FOODING CHARGES' RESP ECTIVELY ON THE SOLE GROUND THAT ALL BILLS WERE NOT PRODUCED BY THE ASSE SSEE. THE LD. C.L T.(A) DELETED THE ADDITIONS BY OBSERVING AS UNDER:- '9. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLA NT AND PERUSED THE ASSESSMENT ORDER. THE A O. HAS MADE DISALLOWANCES U NDER THE HEAD TRAVELLING AND CONVEYANCE, TELEPHONE EXPENSES AND F OODING CHARGES FOR THE REASON THAT ALL THE BILLS WERE NOT PRODUCED. HO WEVER, THE AO. HAS FAILED TO POINT OUT SPECIFIC INSTANCES OF THE EXPEN DITURE UNDER THESE HEADS FOR WHICH THE BILLS WERE NOT PRODUCED. IT IS A MATT ER OF FACT ON RECORD THAT THE BOOKS OF ACCOUNTS AS WELL AS BILLS AND VOUCHERS WERE PRODUCED BEFORE THE A O. AND HENCE HE WAS IN A POSITION TO SPECIFIC ALLY POINT OUT THE DISCREPANCY. HOWEVER, HE HAS CHOSEN TO MAKE DISALLO WANCES ON ESTIMATED BASIS. I INTEND TO AGREE WITH THE APPELLA NT THAT THE DISALLOWANCES FOR THE REASON 'ALL BILLS WERE NOT PR ODUCED' COULD NOT BE MADE WITHOUT GIVING OPPORTUNITY TO THE APPELLANT AN D WITHOUT POINTING OUT THE SPECIFIC AMOUNTS FOR WHICH BILLS WERE NOT PRODU CED. IN VIEW OF THE ABOVE, THE A O. IS DIRECTED TO DELETE THE DISALLOWA NCES MADE BY HIM ON ACCOUNT OF TRAVELING AND CONVEYANCE, TELEPHONE EXPE NSES AND FOODING CHARGES. ITA NO.2064/16 SUSHILA DEVI JAISWAL 8 3.1. WE HAVE HEARD THE PARTIES AND PERUSED THE MATE RIAL PLACED BEFORE US. THE ONLY REASON GIVEN BY THE AO FOR DISALLOWING THE SAID EXPENDITURE WAS THAT ALL BILLS WERE NOT PRODUCED IN SUPPORT OF THE RESPECTIVE EXPENSES. HE MADE THE ADHOC ADDITION ON ESTIMATE 'BASIS AND, IN OUR OPINION, FOR JUSTIFYING SUCH ADDITION, THE AO. SHOULD HAVE BROUG HT ON RECORD THE SPECIFIC ITEM OF EXPENDITURE FOR WHICH, IN HIS OPIN ION, SUPPORTING BILLS WERE NOT PRODUCED. THE ASSESSEE'S ACCOUNTS ARE DULY AUDI TED AND HE SUBMITTED EVIDENCES IN SUPPORT OF THE EXPENDITURE C LAIMED. THAT BEING SO, WE DECLINE TO INTERFERE WITH THE ORDER OF ID. C.I T .(A) DELETING THE AFORESAID ADDITIONS. HIS ORDER ON THESE THREE ADDITIONS IS, T HEREFORE, UPHELD AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 6.2. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO, WHICH WE HAVE NOTED ALR EADY IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREV ITY. 6.3. HAVING HEARD THE RIVAL SUBMISSIONS, PERUSED TH E MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THERE IS MERIT IN THE SUBMI SSIONS OF THE ASSESSE, AS THE PROPOSITION CANVASSED BY LD. AR FOR THE ASSE SSEE ARE SUPPORTED BY THE DECISION OF ITAT IN THE CASE OF AMRIK SINGH (SU PRA) AND THE FACTS NARRATED BY HIM ABOVE. LD. AR FOR THE ASSESSEE HAS POINTED OUT THAT THE AO HAS MADE DISALLOWANCE UNDER THE HEAD DELIVERY CH ARGES ON ADHOC BASIS. THE AO HAS MADE ADHOC DEDUCTION BASED ON SUR MISE AND CONJECTURE. THE AO HAS FAILED TO POINT OUT SPECIFIC INSTANCES OF THE EXPENDITURE FOR WHICH THE BILLS WERE NOT PRODUCED. IT IS A MATTER OF FACT ON RECORD THAT THE BOOKS OF ACCOUNTS AS WELL AS BILLS AND VOUCHERS WERE PRODUCED BEFORE THE AO AND, HENCE, HE WAS NOT IN A POSITION TO SPECIFICALLY POINT OUT THE DISCREPANCIES, HOWEVER, HE HAS CHOSEN TO MAKE DISALLOWANCE ON ESTIMATED BASIS. THE AO CANNOT MAKE THE DISALLOWANCE WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE AND WITH OUT POINTING OUT THE SPECIFIC AMOUNTS FOR WHICH BILLS WERE NOT PRODUCED. IN VIEW OF THE ABOVE, ITA NO.2064/16 SUSHILA DEVI JAISWAL 9 WE DELETE THE ADDITION MADE BY ASSESSING OFFICER AN D CONFIRMED BY LD. CIT(A). 6.4. IN THE RESULT, APPEAL FILED BY THE ASSESSE ON GROUND NO. 4, IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/02 /2017. SD/ - (S.S.VISWANETHRA RAVI) SD/ - (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA ; ! DATED 22/02/2017 ' $%& /PRAKASH MISHRA , 0 . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) % & , / ITAT, 1. / THE APPELLANT-SUSHILA DEVI JAISWAL 2. / THE RESPONDENT.- DCIT, CIRCLE-48, KOLKATA 3. 1 ( ) / THE CIT(A), KOLKATA. 4. 1 / CIT 5. 23 4 0056 , 56 , / DR, ITAT, KOLKATA 6. 4 78 / GUARD FILE. 2 0 //TRUE COPY//