ADITYA LOGISTICS (I) P. LTD, NAVI MUMBAI V. ACIT 10(3), MUMBAI

ITA 2408/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3138 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: UBRAMANIAN
• Keywords: Opportunity of being heard; Additional evidence; Non-deduction of tax; Reason to believe
• Section: 143(3); 194C; 148; 139

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.2408 /MUM/2012 ( / ASSESSMENT YEAR : 2005-06) ADITYA LOGISTICS (I) PVT. LTD., D-388 INDUSTRIAL AREA, MIDC KUKSHET VILLAGE, NAVI MUMBAI, MUMBAI 400 705. / V. A.C.I.T. 10(3), AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. ./ PAN : AADCM6294N ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI M. S UBRAMANIAN REVENUE BY : SHRI A. RAMACHANDRAN / DATE OF HEARING : 14-6-2016 / DATE OF PRONOUNCEMENT : 08-09-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE COMPANY, BEING ITA NO. 2408/MUM/2012, IS DIRECTED AGAINST THE APPELLATE OR DER DATED 9 TH MARCH, 2012 PASSED BY LEARNED COMMISSIONER OF INCOME TAX ( APPEALS)- 22, MUMBAI (HEREINAFTER CALLED THE CIT(A)), FOR THE ASSESSME NT YEAR 2005-06, THE APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARI SING FROM THE ASSESSMENT ORDER DATED 8 TH DECEMBER, 2011 PASSED BY THE LEARNED ASSESSING OFF ICER (HEREINAFTER CALLED THE AO) U/S 143(3(II) R.W.S. 147 OF THE INCOME TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 2408/MUM/2012 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE COM PANY IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL , MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE ASSESSMENT ORDER PASSED U/S 143(3)(II) R.W.S. 147 OF THE I.T. ACT IS INVALID AND BAD IN LAW. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C I T(A) ERRED IN DISMISSING THE APPEAL WIT HOUT GIVING FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C I T (A) ERRED IN DISMISSING THE APPEAL WI THOUT CONSIDERING FULLY AND PROPERLY THE EVIDENCES SUBMITTED IN TERMS OF A PAPER BOOK AS WELL AS THE SUBMISSIONS MADE DURING THE COURSE OF HEA RING PROCEEDINGS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C I T (A) ERRED IN NOT DEALING WITH ADDITION AL GROUNDS OF APPEAL RAISED DURING THE COURSE OF HEARING PROCEEDINGS. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C I T (A) ERRED IN HOLDING THAT THE REOPENING OF THE ASSESSMENT BY THE A.O. IS VALID. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T (A) ERRED IN UPHOLDING THE DISALLOWANC E OF RS.2,13,52,044/- MADE U/S 40(A)(IA) OF THE ACT. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LEARNED C. I. T (A) ERRED IN HOLDING THAT THE ADDITION AL EVIDENCE CANNOT BE ADMITTED UNDER RULE 46A OF THE I.T. ACT, 1961. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME U/S 139 OF THE ACT ON 28 TH OCTOBER, 2005 WHICH WAS PROCESSED U/S 143(1) OF THE ACT ON 18 TH MARCH, 2006. LATER ON THE ASSESSMENT WAS COMPLETED BY REVENUE U/S 143(3) OF THE ACT ON 24 TH DECEMBER, 2007 ASSESSING TOTAL INCOME AT RS. 66,54,560/- I.E. THE RETURNED INCOME WAS ACCEPTED BY REVENUE IN THE ASSESSMENT FRAMED U/S 14 3(3) OF THE ACT. ITA 2408/MUM/2012 3 THEREAFTER, PROCEEDINGS U/S 147 OF THE ACT WERE INI TIATED BY REVENUE AFTER RECORDING THE FOLLOWING REASONS FOR REOPENING THE A SSESSMENT:- IN THE INSTANT CASE, RETURN OF INCOME WAS FILED ON 28.10.2005 DECLARING TOTAL INCOME OF RS. 66,54,560/-. ASSESSME NT WAS COMPLETED U/S 143(3) ASSESSING TOTAL INCOME AT RS.6 6,54,560/- ON 24.12.2007. SUBSEQUENTLY, IT HAS BEEN NOTICED THAT THE GROSS RE CEIPTS CREDITED TO THE P&L A/C AMOUNT TO RS. 6,86,78,419/- WHEREAS, THE GROSS RECEIPTS AS PER TDS CERTIFICATES AMOUNTED TO RS. 13 ,31,69,110/- ON WHICH TDS CREDIT OF RS. 28,66,207/- IS CLAIMED. THEREFORE, I HAVE REASON TO BELIEVE THAT INCOME OF RS. 6,44,90,691 (133169110 68678419) HAS ESCAPED ASSESSMENT WITHI N THE MEANING OF SECTION 147 OF THE ACT DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL F ACTS. NOTICE U/S 148 OF THE ACT, IS THEREFORE, ISSUED. NOTICE U/S 148 OF THE ACT WAS ISSUED ON 25 TH MARCH, 2011 AFTER OBTAINING THE APPROVAL FROM THE LEARNED CIT-10, MUMBAI WHICH WAS DULY SERVED ON THE ASSESSEE ON 1ST APRIL, 2011. THE ASSESSEE VIDE LETT ER DATED 05.05.2011 REQUESTED TO TREAT THE RETURN OF INCOME FILED U/S 1 39 OF THE ACT ON 28.10.2005 AS RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 14 8 AND REQUESTED TO PROVIDE THE REASONS RECORDED FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT. THE SAID REASONS WERE COMMUNICATED TO THE ASSESSEE VIDE LETT ER DATED 12 MAY, 2011. THE A.O. NOTICED THAT THE GROSS RECEIPTS AS PER THE TDS CERTIFICATES FOR WHICH THE CREDIT WAS CLAIMED BY THE ASSESSEE EXCEEDED THE TOTAL CREDITS TO THE P&L A/C AND HENCE THE INCOME ON WHICH CREDIT FOR TAX DE DUCTED AT SOURCE WAS CLAIMED BY THE ASSESSEE WAS NOT OFFERED TO TAX CORR ECTLY, THEREFORE, THE DETAILS AND RECONCILIATION WERE CALLED FOR. THE ASSESSEE SU BMITTED THAT THE TOTAL FREIGHT RECEIVED FROM THE OWN VEHICLES AND THE ATTA CHED VEHICLES AMOUNTED TO RS. 15,66,57,479/- COMPRISING OF FREIGHT OF RS. 5,8 0,12,857/- FROM OWN VEHICLES AND FREIGHT OF RS. 9,86,44,622/- FROM ATTA CHED VEHICLES. IT WAS ALSO ITA 2408/MUM/2012 4 SUBMITTED THAT FREIGHT OF RS.8,79,79,061/- PAID TO THE ATTACHED VEHICLES WAS REDUCED FROM THE FREIGHT RECEIVED FROM THE ATTACHED VEHICLES AND NET AMOUNT OF RS. 1,06,65,562/- WAS CREDITED TO THE P&L A/C AL ONG WITH FREIGHT OF RS. 5,80,12,857/- FROM OWN VEHICLES. THE ASSESSEE ALSO FURNISHED COPIES OF TDS PAYMENT CHALLANS BEFORE THE A.O. . THE ASSESSEE WAS ASKED BY THE AO TO FURNISH THE DETAILS OF FREIGHT PAID AND TDS THEREON ALONG WITH DOCUMENTARY EVIDENCES AND ON PERUSAL OF THE DETAILS FURNISHED B Y THE ASSESSEE VIDE LETTER DATED 02.12.2011, VARIOUS DISCREPANCIES WERE NOTICE D IN RESPECT OF DEDUCTION OF TAX AT SOURCE FROM THE FREIGHT PAYMENTS, THE DET AILS OF WHICH ARE AS UNDER:- FREIGHT AND TDS DETAILS MISMATCH NAME OF THE PARTY FREIGHT THE AMOUNT ON WHICH TDS WAS MADE BY THE ASSESSEE DIFFERENCE A SUBBA RAJU 4,05,259 3,65,479 39,780 M/S ALLIED SURFACE (I) PVT. LTD. 59,006 0 59,006 M/S AMBIKA ROAD CARRIERS 1,12,910 93,774 19,136 M/S ANAND ROADWAYS 13,31,168 6,04,940 7,26,228 APPA RAO 2,20,430 2,20,427 3 M/S AVTAR CARGO CARRIER 5,81,667 42,066 5,39,601 BALASURAMANIUM 6,74,797 0 6,74,797 M/S DASHMESH ROADLINES 4,53,058 2,51,533 2,01,525 M/S DHILLON ROADLINES 2,63,233 2,24,555 38,678 G. SUBBA RAO 2,61,000 0 2,61,000 M/S GHOMAN ROAD CARRIER 5,84,037 3,86,275 1,97,762 M/S GIRIRAJ TRANSPORT COMPANY 2,50,873 1,83,969 66, 904 M/S GOBIND CARRIERS 21,47,168 17,12,272 4,34,896 M/S HARSH CARGO MOVERS 7,97,910 48,699 7,49,211 M/S HIMMAT ROADLINES 21,33,555 19,04,809 2,28,746 M/S JAI TRANSPORT 50,324 44,400 5,924 M/S JODHPUR BOMBAY FREIGHT CARRIER 1,82,304 1,68,129 14,175 K. JAGANADHAN 1,10,266 0 1,10,266 M/S KALESWARI LORRY SUPPLY, VIZAG 6,68,100 0 6,68,1 00 ITA 2408/MUM/2012 5 M/S KAMAL SAROOP ROADWAYS 5,37,405 4,36,429 1,00,97 6 M/S KARNATAKA RAYALSEEMA ROADLINES. VIZAG. 2,70,940 0 2,70,940 M/S KHALSA BULK MOVERS 3,97,448 2,61,701 1,35,747 M/S KHALSA FREIGHT CARRIER 12,03,533 8,50,553 3,52, 980 M/S KHALSA ROADWAYS 8,97,902 7,39,403 1,58,499 M. RAMESH 1,67,973 0 1,67,973 M/S MAHARASHTRA M.P. ROADLINES 1,69,914 0 1,69,914 M/S MAHENDRA TRANSPORT, VIZAG 1,40,165 0 1,40,165 MOHAMMED SAIFIULLAH 17,33,290 0 17,33,290 M/S MOOKAMBIKA ENTERPRISES 96,954 0 96,954 M/S NAVJOT ROAD CARRIER 1,64,030 21,420 1,42,610 M/S N EW INDORE AGRA ROADWAYS 3,08,090 2,88,383 19,707 M/S NEW VISAKHA ROADLINES, VIZAG 11,50,130 0 11,50, 130 M/S NILESH ROADLINES 18,11,325 9,21,429 8,89,896 M/S OM TRANSPORTS CO. 3,35,622 3,15,649 19,973 P. VENKANNA 3,82,000 0 3,82,000 P. DEMUDU BABU 2,78,762 0 2,78,762 P.V. RAMANA 1,67,699 0 1,67,699 PUNNIYAMURTHY 37,44,919 0 37,44,919 R. LALITHA 61,369 0 61,369 R.R. NAIDU 66,000 0 66,000 M/S RAIPUR GOODS CARRIERS 1,19,308 85,168 34,140 M/S RAJ TRANSPORT CO. 4,27,543 3,88,310 39,233 M/S RANCHI BOMBAY ROADWAYS 93,74,588 92,22,109 1,52 ,479 M/S SAI D URGA TPTS. VIZAG 83,950 0 83,950 SANJAY CHOPRA 94,596 0 94,596 M/S SHARMA TRANSPORTS, VIZAG 96,000 0 96,000 M/S SHIRDI SAI TRANSPORT, VIZAG 15,36,535 0 15,36,5 35 M/S SIMRAN FREIGHT CARRIER 1,06,266 86704 19,562 M/S SODI BHARAT TRANSPORT CO 96,619 56,923 39,696 M/S SRI DURGADEVU ROADLINES, VIZAG 1,01,650 0 1,01,650 M/S SRI GANESH CARO CARRIER 13,48,417 0 13,48,417 M/S SRI JAGDAMBE ROADWAYS 1,88,233 1,29,875 58,358 M/S SRI KANYA TRANSPORTS 17,73,477 17,58,994 14,483 M/S SRI RAJYALAXMI TRANSPORTS 9,14,537 5,13,543 4,0 0,994 M/S SRI SHYAM FREIGHT CARRIER 85,041 0 85,041 M/S SRI VENKATESHWARA LORRY SERVICES 6,75,420 0 6,75,420 M/S SRIDEVI TRANSPORTS VIZAG 11,38,335 0 11,38,335 M/S SUVARNA TRANSPORTS, VIZAG 1,10,000 0 1,10,000 M/S UTTAM ROAD CARRIER 2,48,209 2,11,295 36,914 ITA 2408/MUM/2012 6 TOTAL 2,13,52,044 THE ASSESSEE SUBMITTED THAT THE PROVISIONS OF CHAPT ER XVII-B OF THE ACT WERE DULY COMPLIED WITH AND THERE WAS NO DISCREPANCY. IT WAS SUBMITTED THAT IN THE CASE THE PAYMENT OR CREDIT WAS LESS THAN RS. 20 ,000/- OR THE PARTIES SUBMITTED FORM NO. 15H, NO TDS WAS DEDUCTED. FROM THE PERUSAL OF THE ABOVE TABLE, THE A.O. OBSERVED THAT TAX HAS NOT BEE N DEDUCTED FROM THE ABOVE PAYMENTS OF FREIGHT AS PER THE PROVISIONS OF CHAPTE R XVII-B, WHICH ARE ALL ABOVE RS. 50,000/- AND THE DETAILS OF PARTIES SUBMI TTING FORM NO 15H WAS ALSO NOT SUBMITTED BY THE ASSESSEE. THEREFORE, THE AGGREGATE OF THE FREIGHT EXPENDITURE AMOUNTING TO RS. 2,13,52,044/- WAS DISA LLOWED BY THE AO U/S 40(A)(IA) OF THE ACT FOR NON-DEDUCTION OF TAX AT SO URCE AND THE SAID SUM WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE BY THE A. O. VIDE ASSESSMENT ORDER DATED 8 TH DECEMBER, 2011 PASSED U/S 143(3)(II) R.W.S. 147 OF THE ACT. 4.AGGRIEVED BY THE ASSESSMENT ORDER DATED 8-12-2011 PASSED BY THE A.O. U/S 143(3)(II) READ WITH SECTION 147 OF THE ACT, TH E ASSESSEE FILED ITS FIRST APPEAL BEFORE THE LD. CIT(A). 5. BEFORE THE LD. CIT(A), THE ASSESSEE OBJECTED TO THE REOPENING OF THE ASSESSMENT AND SUBMITTED THAT DURING ORIGINAL ASSES SMENT PROCEEDINGS, ALL THE DETAILS INCLUDING RECONCILIATION OF TDS WAS SUB MITTED BEFORE THE AO WHICH ALTHOUGH HAS NOT BEEN DISCUSSED IN ORIGINAL ASSESSM ENT ORDER U/S 143(3) OF THE ACT DATED 24.12.2007 BUT THE A.O. HAS DULY APPL IED HIS MIND ON THE RECONCILIATION OF TDS ON FREIGHT PAYMENTS. THE LD. CIT(A), ON PERUSAL OF THE ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 24.12. 2007 OBSERVED THAT THE A.O. HAS NOWHERE MADE ANY REFERENCE TO THE RECONCIL IATION OF TDS ON FREIGHT PAYMENTS AND HENCE IT APPEARS THAT NO SUCH QUERY WA S RAISED BY THE A.O. DURING THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143( 3) OF THE ACT. THE ITA 2408/MUM/2012 7 ASSESSEE SUBMITTED THAT THE SAID RECONCILIATION WAS DULY SUBMITTED AND PRODUCED THE COPY OF LETTER DATED 18-12-2007 ADDRES SED TO THE AO WHICH WAS SUBMITTED BEFORE THE A.O. WITH RESPECT TO RECONCILI ATION OF TDS ON FREIGHT PAYMENTS. HOWEVER, THE LD. CIT(A) OBSERVED THAT NOT HING AS SUCH HAS BEEN MENTIONED IN THAT LETTER NOR THERE IS A REFERENCE O F ANY ENCLOSURE THERETO, HENCE, THE ASSESSEE HAS NOT SUBSTANTIATED ITS CLAIM OF DEDUCTION OF TDS ON FREIGHT PAYMENTS. THUS, THE LD. CIT(A) OBSERVED TH AT THE ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 24 TH DECEMBER, 2007 WAS PASSED BY THE A.O. WITHOUT APPLICATION OF MIND ON THE ISSUE OF RECONCI LIATION OF TDS ON FREIGHT PAYMENTS. THE LD. CIT(A) ALSO REJECTED THE CONTENT IONS OF THE ASSESSEE THAT THE A.O. HAS NOT GIVEN THE REASONS RECORDED, HOWEVE R, THE SO CALLED EXTRACT AVAILABLE WITH THE ASSESSEE AS MENTIONED IN THE SUB MISSIONS BEFORE THE LD. CIT(A) IS THE SAME WHICH HAS BEEN RECORDED IN THE A SSESSMENT ORDER WAS THE OBSERVATION OF LEARNED CIT(A). THE LD. CIT(A) FURTH ER OBSERVED THAT THE ASSESSEE COULD NOT PRODUCE BEFORE HIM ANY LETTER AD DRESSED TO A.O. (BEFORE COMPLYING WITH THE NOTICE OF RE-OPENING) OBJECTING TO THE EXTRACT OF REASON RECORDED, COPY OF WHICH WAS PROVIDED TO IT. THE ASS ESSEE CONTENDED THAT ON THE MATERIAL ALREADY CONSIDERED BY THE A.O. DURING ORIGINAL ASSESSMENT PROCEEDINGS, RE-OPENING HAS BEEN DONE, HOWEVER, IN THE ORIGINAL ASSESSMENT MADE THERE WAS NO APPLICATION OF MIND SINCE NEITHER THE MATERIAL WAS CALLED FOR BY A.O. NOR PROVIDED BY THE ASSESSEE AND HENCE THERE IS NO QUESTION OF APPLICATION OF MIND WAS THE OBSERVATIONS OF THE LEA RNED CIT(A). IT WAS OBSERVED BY THE LEARNED CIT(A) THAT DUE OPPORTUNITY HAS BEEN GIVEN BY THE A.O. TO THE ASSESSEE BUT THE ASSESSEE HAS FAILED TO COMPLY WITH THE SAME. THE LD. CIT (A) ACCORDINGLY HELD THAT THERE IS NO MERIT IN THE CONTENTIONS OF THE ASSESSEE AND THE REOPENING OF THE ASSESSMENT BY THE A.O. WAS HELD AS VALID BY THE LEARNED CIT(A) VIDE APPELLATE ORDERS DATED 0 9-03-2012. ON MERITS , THE ASSESSEE CONTENDED BEFORE THE LD CIT(A) THAT NO TDS WAS DEDUCTED WHEREIN PAYMENT WAS LESS THAN RS 20000/- OR IN AGGREGATE DU RING THE YEAR WAS LESS THAN RS. 50,000/ AS PER PROVISIONS OF SECTION 194C OF THE ACT , OR WHERE THE ITA 2408/MUM/2012 8 PARTIES HAVE SUBMITTED FORM NO 15-I . THE ASSESSEE SUBMITTED THE DETAILS IN SUPPORT OF CONTENTIONS BEFORE THE LEARNED CIT(A) AS ADDITIONAL EVIDENCES WHICH WAS REJECTED BY THE LEARNED CIT(A) ON THE GRO UNDS THAT THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE AO AND THE ASSESSEE FAILED TO PRODUCE THESE EVIDENCES BEFORE THE AO AND AS PER RULE 46A O F INCOME TAX RULES, 1962, THE ASSESSEE DOES NOT SATISFY THE REQUIREMENT S OF RULE 46A OF INCOME TAX RULES, 1962 FOR ADMISSION OF ADDITIONAL EVIDENC ES AND HENCE THE SAME WERE NOT ADMITTED BY LEARNED CIT(A) VIDE APPELLATE ORDER DATED 09-03-2012. 6. AGGRIEVED BY THE APPELLATE ORDER DATED 09-03-201 2 PASSED BY THE LD. CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUN AL. 7. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THE ORIGINAL ASSESSMENT ORDER WAS PASSED ON 24 TH DECEMBER, 2007 U/S 143(3) OF THE ACT WHILE REOPENING HAS BEEN DONE U/S 147/148 O F THE ACT. ASSESSMENT ORDER U/S 143(3) R.W.S 147 OF THE ACT HAS BEEN PASS ED ON 8 TH DECEMBER, 2011. THE REASONS WERE DULY RECORDED AND NOTICE U/S 148 O F THE ACT WAS ISSUED ON 25 TH MARCH, 2011. THE REASONS SUPPLIED TO THE ASSESSEE , WHICH ARE AS UNDER:- IN THE INSTANT CASE, RETURN OF INCOME WAS FILED ON 28.10.2005 DECLARING TOTAL INCOME OF RS. 66,54,560/-. ASSESSME NT WAS COMPLETED U/S 143(3) ASSESSING TOTAL INCOME AT RS.6 6,54,560/- ON 24.12.2007. SUBSEQUENTLY, IT HAS BEEN NOTICED THAT THE GROSS RE CEIPTS CREDITED TO THE P&L A/C AMOUNT TO RS. 6,86,78,419/- WHEREAS, THE GROSS RECEIPTS AS PER TDS CERTIFICATES AMOUNTED TO RS. 13 ,31,69,110/- ON WHICH TDS CREDIT OF RS. 28,66,207/- IS CLAIMED. THEREFORE, I HAVE REASON TO BELIEVE THAT INCOME OF RS. 6,44,90,691 (133169110 68678419) HAS ESCAPED ASSESSMENT WITHI N THE MEANING OF SECTION 147 OF THE ACT DUE TO FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE TRULY AND FULLY ALL MATERIAL F ACTS. ITA 2408/MUM/2012 9 NOTICE U/S 148 OF THE ACT IS, THEREFORE, ISSUED THE LD. COUNSEL SUBMITTED THAT ON PERUSAL OF THE RE ASONS, THERE IS A MIS- MATCH BETWEEN THE GROSS RECEIPTS CREDITED TO THE P& L ACCOUNT OF RS. 6,86,78,419/- AS COMPARED TO THE GROSS RECEIPTS AS PER TDS CERTIFICATE AMOUNT OF RS. 13,31,69,110/-. THERE IS NO ADDITIO N MADE BY THE AUTHORITIES BELOW ON ACCOUNT OF THIS MIS-MATCH OF GROSS RECEIPT S AS WELL AS THE AMOUNT AS REFLECTED AS PER THE TDS CERTIFICATE, WHILE ADDITIO NS HAVE BEEN MADE ON ACCOUNT OF NON-DEDUCTION OF TDS UNDER CHAPTER XVII- B OF THE ACT. THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT V. JET AIRWAYS (I) LTD., [2011] 331 ITR 236 (BOM) IS CLEARLY APPLICABL E TO THE INSTANT CASE AND THE ADDITIONS ARE NOT SUSTAINABLE. THE RE-OPENING IS NOT VALID AS NO ADDITION HAS BEEN MADE BY THE AUTHORITIES ON ACCOUNT OF THE REASONS ON WHICH THE ASSESSMENT WAS REOPENED U/S 147/148 OF THE ACT. 8. THE LD. D.R., ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD. CIT(A). 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE ASS ESSEE HAS DULY FILED THE RETURN OF INCOME U/S. 139 OF THE ACT WHICH WAS SELE CTED FOR SCRUTINY AND ASSESSMENT U/S 143(3) OF THE ACT WAS DULY COMPLETED ON 24 TH DECEMBER, 2007 ACCEPTING THE RETURNED INCOME. THE CASE WAS REOPENE D U/S 147/148 OF THE ACT ON THE GROUND THAT THERE WAS A MIS-MATCH IN THE GROSS RECEIPTS AS DECLARED IN RETURN OF INCOME FILED WITH REVENUE VIS --VIS GROSS RECEIPTS AS REFLECTED AS PER TDS CERTIFICATES. THE REASONS REC ORDED FOR REOPENING WERE DULY SUPPLIED TO THE ASSESSEE. THE ASSESSEE HAS GI VEN REPLY EXPLAINING THAT THE FREIGHT PAID TO THE ATTACHED VEHICLES WAS REDUC ED FROM THE FREIGHT RECEIVED FROM THE ATTACHED VEHICLES AND THE NET AMOUNT WAS CREDITED TO THE P&L ACCOUNT ALONG WITH THE FREIGHT RECEIVED FROM OWN VE HICLES. THUS THE REASON FOR ITA 2408/MUM/2012 10 THE MIS-MATCH HAS BEEN DULY EXPLAINED BY THE ASSESS EE WHICH WAS ACCEPTED BY THE REVENUE AND NO ADDITION HAS BEEN MADE BY THE REVENUE ON THIS GROUND. THE REVENUE HAS MADE THE ADDITION ON SOME OTHER GROUND I.E. NON DEDUCTION OF TDS ON PAYMENT OF FREIGHT. IN OUR CON SIDERED VIEW, THE RATIO OF THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF JET AIRWAYS (I) LTD.(SUPRA) IS DIRECTLY APPLICABLE TO THE INSTANT C ASE AND THE ADDITION MADE BY THE REVENUE CANNOT BE SUSTAINED. WE ORDER DELETION OF THE ADDITION MADE BY THE A.O. AND AS SUSTAINED BY THE LEARNED CIT(A). WE ORDER ACCORDINGLY. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN ITA NO. 2408/MUM/2012 FOR THE ASSESSMENT YEAR 2005-06 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH SEPTEMBER, 2016. # $% &' 08-09-2016 ( ) SD/- SD/- (MAHAVIR SINGH) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 08-09-2016 [ .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI A BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI