Shri Nitin Bansal, SIROHI V. CIT-I, JODHPUR

ITA 275/JODH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82951 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AT RS US OF ACT SUBSE
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA , JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 275 / JU/ 20 1 4 ASSESSMENT YEAR: 200 9 - 1 0 SHRI NITIN BANSAL VS. THE C.I.T - 1 PROP. M/S BALAJI C ONTRACTOR JODHPUR J.K. PURAM, BANAS, SIROHI PAN NO. AHMPB 5003 F (APPELLANT) (RESPONDENT) A SSESSEE B Y : SHRI AMIT KOTHARI DEPARTMENT B Y : SHRI O.P. MEENA , DR DATE OF H EARING : 27 . 0 8 .201 4 DATE OF PRONOUNCEMENT : 04 . 0 9 . 20 1 4 ORDER PER HARI OM MARATHA , J .M. TH IS APPEAL BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE CIT, UDAIPUR DATED 21 . 0 3 .20 1 4 PERTAINING TO A.Y 20 09 - 10 . 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE DERIVED HIS INCOME AS PROP O F M/S BALAJI CONTRACTOR, FROM LABOUR SUPPLY CONTRACT, TRANSPORTATION WORK OF J.K. LAXMI CEMENT CO AND PLYING OF TRUCKS ON HIRE TO VARIOUS PARTIES. FOR THIS YEAR, ASSESSMENT WAS FRAMED ON 5.12.2011 AT A TOTAL INCOME DECLARED BY THE ASSESSEE AT RS. 35,21,45 0/ - U/S 143(3) OF THE ACT. SUBSEQUENTLY, THE LD. CIT CALLED FOR THE RECORDS OF THIS ASSESSMENT ORDER AND AFTER EXAMINING THE SAME, HE HAS CONSIDERED THAT THIS ORDER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THEREFORE, HE ISSUED A SHOW CAUSE NOTICE U/S 263 DATED 02.09.2013. THE POINTS CONSIDERED BY THE LD. COMMISSIONER ARE: (I) CONTRACT RECEIPTS OF RS. 8,07,056/ - AND TRANSPORTATION RECEIPTS OF RS. 73,76,800/ - WHICH ACCORDING TO HIM ARE ON LOWER SIDE IN PERCENTAGE AS COMPAR ED TO A.Y. 2007 - 08. HE HAS OBSERVED THAT THERE IS ABNORMAL INCREASE IN THE CLAIM OF TRANSPORTATION FREIGHT CHARGES WITH REFERENCE TO EARNING OF TRANSPORTATION RECEIPTS AND THEREBY THERE IS DECREASE IN PROFIT MARGIN. ACCORDING TO HIM DESPITE THERE BEING INC REASE IN THE 3 TRANSPORTATION CHARGES BY WAY OF CASH PAYMENTS THE A.O. HAS NOT MADE ANY ENQUIRY IN THIS REGARD. (II) HE HAS ALSO OBSERVED THAT AS PER THE BALANCE SHEET AS ON 31.03.2009, THE ASSESSEE DID NOT OWN JCB MACHINE, LOADER, SCORPIO AND THREE TRUCK S AS THERE WERE SOLD DURING THE RELEVANT FINANCIAL YEAR ITSELF. HOWEVER, IN THE ACCOUNTS SALARY EXPENSES OF RS. 2,58,703/ - HAS BEEN SHOWN AS PAID TO OPERATORS; (III) HE HAS FURTHER OBSERVED THAT RETURN OF THE ASSESSEE U/S 44AE WITHOUT ENQUIRING THE NUMBER OF TRUCKS OWNED BY HIM DURING THIS YEAR, (IV) THAT NO ENQUIRY FROM M/S. J.K. LAXMI CEMENT LTD. WAS MADE BY THE A.O. TO FIND OUT IF ALL THE CONTRACT RECEIPTS HAVE BEEN SHOWN OR NOT. 3. THE ASSESSEE REPLIED THIS SHOW CAUSE NOTICE THROUGH HIS A.R., WHO FIL ED WRITTEN SUBMISSIONS (W.S.) TO EXPLAIN THE POINTS RAISED IN THE ABOVE SHOW CAUSE NOTICE. THE SUM AND SUBSTANCE OF ASSESSEES REPLY ARE AS UNDER : - 4 I. THE BUSINESS OF TRANSPORTATION OF THE GOODS OF M/S. J. K. LAKSHMI CEMENT CO. LTD WAS STARTED FROM 5 - 7 - 2007 RELEVANT TO AY 2008 - 09. THE ASSESSMENT WAS COMPLETED BY THE AO FOR THE AY 2008 - 09 U/S 143(3). SIMILARLY, IN THE YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S 143(3) BY ACCEPTING THE RETURNED INCOME AFTER MAKING DUE V ERIFICATION AND ACCEPTING THE INCOME FROM THE TRUCKS DECLARED U/S 44AE. THE METHOD OF ACCOUNTING FOR BOTH THE YEARS IS SIMILAR. THEREFORE, THE ASSESSMENT WAS NEITHER ERRONEOUS AND NOR PREJUDICIAL TO THE INTEREST OF REVENUE. II. M/S. BALAJI CONTRACTOR IS P ROPRIETARY CONCERN OF SH. NITIN KR. BANSAL WHICH CARRIES BUSINESS OF LABOUR SUPPLY CONTRACT, INTERNAL AND EXTERNAL TRANSPORTATION WORK OF J. K. LAXMI CEMENT LTD. FOR THESE CONTRACT THE CHARTERED ACCOUNTANT. HOWEVER, THE ASSESSEE ALSO OWNS TRUCKS LESS THAN 10 AND IS RUNNING ON HIRE IN TRUCK DIVISION AND THE INCOME IS DISCLOSED U/S 44AE AS NO BOOKS OF ACCOUNTS FOR THE TRUCK DIVISION ARE MAINTAINED RIGHT FROM THE AY 2003 - 04. IN ALL THESE YEARS, THE DEPARTMENT HAS BEEN ACCEPTING INCOME DECLARED U/S 44AE OF THE TRUCK DIVISION. IT IS FURTHER SUBMITTED THAT ON PLYING OF THESE TRUCKS ON HIRE, THE 5 ASSESSEE HAD RECEIVED RECEIPTS OF RS. 8,07,056/ - FROM M/S. NANDANI TRANSPORT CO. AND RS. 77,73,800/ - FROM NATIONAL TRANSPORTS CO. AND THE SAME HAS BEEN CONSIDERED WHILE DIS CLOSING INCOME OF THE TRUCKS U/S 44AE AND THEREFORE, TDS ON THESE RECEIPTS ARE CLAIMED IN THE COMPUTATION OF THE TOTAL INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. III) IT IS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS FULLY ENQUIRED ABOUT TRA NSPORTATION RECEIPTS AND PAYMENTS AND EARNING OF GROSS PROFIT AND NET PROFIT IN THE COURSE OF THE ASSESSMENT PROCEEDING. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD RECEIVED INTERNAL TRANSPORTATION RECEIPTS AMOUNTING TO RS. 16,88,062/ - AND EXTERNAL TRAN SPORTATION RECEIPTS OF RS. 14,87,31,429/ - . FOR EARNING OF EXTERNAL TRANSPORTATION RECEIPTS, THE ASSESSEE HIRED TRUCKS ON FREIGHT CHARGES PAYMENT BASI S FROM OTHER TRUCK OWNERS WHICH IS ALWAYS HIGHER AND THE MARGIN ON EXTERNAL TRANSPORTATION RECEIPTS IS VERY LOW. IV. IN RESPECT OF PAYMENT OF SALARY TO OPERATORS, IT IS SUBMITTED THAT THE JCB MACHINE, LOADERS, SCORPIO AND TRUCKS WERE SOLD IN THE MONTH OF AUGUST, 2008. SALARY PAYMENTS TO 6 OPERATORS WERE PAID UPTO AUGUST, 2008. IN SUPPORT OF THE SAME, THE ASSESS EE PRODUCED BEFORE THE UNDERSIGNED VARIOUS SHEETS FOR PERUSAL. V. IN VIEW OF THE ABOVE FACTS, HE THEREFORE, REQUESTED THAT THE ASSESSMENT NEITHER IS ERRONEOUS AND NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. HENCE, HE REQUESTED FOR DROPPING OF THE PROC EEDINGS INITIATED U/S 263 OF THE I. T. ACT BY SHOW - CAUSE NOTICE DATED 2 - 9 - 2013. 4. EVEN AFTER CONSIDERING THE ABOVE REPLY, THE LD. COMMISSIONER HAS FOUND THE ASSESSMENT ORDER NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. ACCORDI NG TO HIM THE ASSESSEE IS IN BUSINESS OF TRANSPORTATION AND THE FUNDS OF BUSINESS HAVE BEEN UTILIZED FOR ACQUIRING OF THE TRUCKS WHICH HAVE BEEN GIVEN ON HIRE, AND THE TOTAL RECEIPTS SHOULD HAVE BEEN CONSIDERED IN THE ACCOUNT OF BUSINESS OF THE ASSESSEE IN STEAD OF SHOWING LESSER INCOME U/S 44AE, WHICH IS NOT AVAILABLE TO THE ASSESSEE, AS HE OWNED MORE THAN TEN TRUCKS DURING THE YEAR. THEREFORE, HE HAS HELD THAT THIS IS A CASE OF NO ENQUIRY HAVING DONE BY 7 THE A.O. AND HIS ORDER IS NOT ONLY ERR ONEOUS BUT ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. HE HAS SET ASIDE THE ASSESSMENT ORDER FOR REDOING THE SAME. THE ASSESSEE HAS COME IN APPEAL B EFORE US. BOTH THE PARTIES HAVE REI TERATED THEIR EARLIER ARGUMENTS B Y RAISING THE FOLLOWING GROUNDS : - 1. THE ORDER PASSED BY THE ID. CIT - I, JODHPUR U/S 263 IS BAD IN LAW AND BAD ON FACTS. 2. THE ID. CIT - I, JODHPUR HAD ERRED IN OBSERVING THAT ORIGINAL ASSESSMENT MADE U/S 143(3) ON 5 TH DECEMBER, 2011 WAS ERRONEOUS SO FAR AS PREJUDICIAL TO THE INTEREST OF R EVENUE. THE SAID ORDER WAS MADE AFTER DETAILED EXAMINATION OF THE FACTS AND CIRCUMSTANCES AND THERE BEING NO ERROR IN THE ORIGINAL ORDER, THE ORDER PASSED U/S 263 IS BAD IN LAW AND BAD ON FACTS. 3. THE ID. CIT - I, JODHPUR EVEN AFTER DETAILED VERIFICATION O F THE INCOME EARNED BY THE APPELLANT HAD FAILED TO DETERMINE ANY INCOME ESCAPING ASSESSMENT, AND THE ORDER U/S 263 IS THEREFORE WHOLLY BAD IN LAW AND BAD ON FACTS. 8 4. THE SETTING ASIDE OF ORIGINAL ASSESSMENT TO ONCE AGAIN VERIFY THE FACTS WHICH STOOD COM PLETE VERIFICATION IS BAD IN LAW AND BAD ON FACTS. 5. THE ID. CIT HAD ALSO FAILED TO FIND OUT ANY ERROR IN THE ORDER SO AS TO SAY THAT THE SAME IS PREJUDICIAL TO THE INTEREST OF REVENUE, AND THEREFORE EVEN ON ISSUES DISCUSSED BY HIM THERE WAS NO VALID JUR ISDICTION AND REASON TO INITIATE PROCEEDINGS U/S 263. 6. THE ID. CIT HAS ERRED IN OBSERVING THAT ON FOLLOWING ISSUES THE ORIGINAL ORDER PASSED BY THE ID. JCIT, RANGE - 2, JODHPUR WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE : 6.1 THE ID. CIT, HAS ERRED IN OBSERVING THAT THE HIRE CHARGES FROM NANDANI TRANSPORT COMPANY AT RS. 8,07,056/ - AND FROM NATIONAL TRANSPORT COMPANY AT RS. 73,76,800/ - WAS NOT SHOWN WHILE CREDIT OF TDS ON THESE RECEIPTS WAS BEING CLAIMED, WITHOUT APPRECIATING THE FACT THAT T HE INCOME/ RECEIPT FROM SUCH INCOME WAS ALREADY CONSIDERED IN THE INCOME FROM TRUCK ON WHICH INCOME WAS COMPUTED AS PER PROVISIONS OF SECTION 44AE. 9 6.2 THE ID. CIT HAD ALSO ERRED IN OBSERVING THAT THE PROVISIONS OF SECTION 44AE ARE NOT APPLICABLE IN THE CASE OF THE APPELLANT AS THERE ARE MORE THAN 10 VEHICLE. THE OBSERVATION SO MADE ARE BAD IN LAW AND BAD ON FACTS. 6.3 THE ID. CIT, HAS ERRED IN OBSERVING THAT THE TOTAL TRANSPORT RECEIPTS HAD INCREASED CONSIDERABLY INCREASED DURING THE YEAR TO RS. 15.04 AN D THE EXPENSES AGAINST THE SAME WERE CLAIMED WERE RS. 14.45 CRORES AND CLAIM OF RECEIPTS AND EXPENSES WERE NOT PROPERLY VERIFIED. THE SAID OBSERVATION IS INCORRECT ON FACTS AND NO VALID JURISDICTION CAN BE ASSUMED U/S 263. THE COMPLETE DETAILS AND INFORMAT ION WERE DULY SUBMITTED DURING ASSESSMENT, AND AFTER COMPLETE VERIFICATION OF SUCH RECEIPTS AND EXPENSES THE INCOME DECLARED WAS ACCEPTED . 6.4 THE ID. CIT HAD ERRED IN OBSERVING THAT THE EXPENSES RELATING TO SALARY TO OPERATORS WAS NOT FULLY EXAMINED. THE OBSERVATION IS ALSO BAD IN LAW AND BAD ON FACTS, AND COMPLETE DETAILS AND INFORMATION WAS SUBMITTED AND EXAMINED DURING THE ASSESSMENT PROCEEDINGS . 6.5 THE ID. CIT HAD ALSO ERRED IN OBSERVING THAT NO PROPER ENQUIRY WAS MADE IN RELATION TO RECEIPTS FROM J .K.LAKSHMI CEMENT, WHILE THE ENTIRE RECEIPTS WAS FULLY VERIFIABLE AND ALL PAYMENTS BEING RECEIVED THROUGH BANKING CHANNELS. THE RECEIPTS ARE FULLY VERIFIABLE AND THERE BEING NO DISCREPANCY IN 10 THE RECEIPTS. THE SAME WAS ALSO VERIFIABLE FROM THE TDS CERTIFIC ATES. 6.6 THAT ON NONE OF THE ABOVE ISSUES THE ID. CIT WAS JUSTIFIED IN INITIATING THE PROCEEDINGS U/S 263 AND THE ORIGINAL ORDER MADE U/S 143(3) CANNOT BY ANY MEANS BE REGARDED AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF REVENUE, AND THE PROCEEDINGS D ESERVES TO BE QUASHED. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFULLY EXAMINED THE ENTIRE RECORD. IT IS TRITE THAT AN ORDER CAN BE REVISED ONLY AND ONLY IF TWIN CONDITIONS OF ERROR IN THE ORDER AND PREJUDICE CAUSED TO THE REVENUE CO - EXIST. THE SUBJECT OF REVISION UNDER SECTION 263 HAS BEEN VASTLY EXAMINED AND ANALYZED BY VARIOUS COURTS INCLUDING THAT OF HONBLE APEX COURT. THE REVISIONAL POWER CONFERRED ON THE CIT VIDE SECTION 263 IS OF VIDE AMPLITUDE. IT ENABLES THE CIT TO CALL FOR AND EXA MINE THE RECORDS OF ANY PROCEEDING UNDER THE ACT. IT EMPOWERS THE CIT TO MAKE OR CAUSE TO BE MADE SUCH AN ENQUIRY AS HE DEEMS NECESSARY IN ORDER TO FIND OUT IF ANY ORDER PASSED BY ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERE STS OF THE REVENUE. THE ONLY LIMITATION ON HIS POWERS IS THAT HE MUST HAVE SOME MATERIAL(S) WHICH WOULD ENABLE HIM TO FORM A PRIMA FACIE OPINION THAT 11 THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. ONCE HE COMES TO THE ABOVE CONCLUSION ON THE BASIS OF THE MATERIAL THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND ALSO PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CIT IS EMPOWERED TO PASS AN ORDER AS THE CIRCUMSTANCES OF THE CASE MAY WARRANT. HE MAY PASS AN ORDER ENHANCING THE ASSESSMENT OR HE MAY MODIFY THE ASSESSMENT. HE IS ALSO EMPOWERED TO CANCEL THE ASSESSMENT AND DIRECT TO FRAME A FRESH ASSESSMENT. HE IS EMPOWERED TO TAKE RECOURSE TO ANY OF THE THREE COURSES INDICATE D IN SECTION 263. SO, IT IS CLEAR THAT THE CIT DOES NOT HAVE UNFETTERED AND UNCHEQURED DISCRETION TO REVISE AN ORDER. THE CIT IS REQUIRED TO EXERCISE REVISIONAL POWER WITHIN THE BOUNDS OF THE LAW AND HAS TO SATISFY THE NEED OF FAIRNESS IN ADMINISTRATIVE ACTION AND FAIR PLAY WITH DUE RESPECT TO THE PRINCIPLE OF AUDI ALTERAM PARTEM AS ENVISAGED IN THE CONSTITUTION OF INDIA AS WELL AS IN SECTION 263. AN ORDER CAN BE TREATED AS ERRONEOUS IF IT WAS PASSED IN UTTER IGNORANCE OR IN VIOLATION OF ANY LAW; OR P ASSED WITHOUT TAKING INTO CONSIDERATION ALL THE RELEVANT FACTS OR BY TAKING INTO CONSIDERATION IRRELEVANT FACTS. THE PREJUDICE THAT IS CONTEMPLATED UNDER SECTION 263 IS THE PREJUDICE TO THE INCOME TAX ADMINISTRATION AS A WHOLE. THE REVISION HAS TO BE D ONE FOR THE PURPOSE OF SETTING RIGHT DISTORTIONS AND 12 PREJUDICES CAUSED TO THE REVENUE IN THE ABOVE CONTEXT. THE FUNDAMENTAL PRINCIPLES WHICH EMERGE FROM THE SEVERAL CASES REGARDING THE POWERS OF THE CIT UNDER SECTION 263 MAY BE SUMMARIZED BELOW: (I) THE CIT MUST RECORD SATI SFACTION THAT THE ORDER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. BOTH THE CONDITIONS MUST BE FULFILLED. (II) SECTION 263 CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COMMITTED BY THE ASSESSING OFFICER AND IT IS ONLY WHEN AN ORDER IS ERRONEOUS, THAT THE SECTION WILL BE ATTRACTED. (III) AN INCORRECT ASSUMPTION OF FACTS OR AN INCORRECT APPLICATION OF LAW WILL SUFFICE FOR THE REQUIREMENT OR ORDER BEING ERRONEOUS . (IV) IF THE ORDER IS PASSED WITHOUT APPLICATION OF MIND, SUCH ORDER WILL FALL UNDER THE CATEGORY OF ERRONEOUS ORDER. (V) EVERY LOSS OF REVENUE CANNOT BE TREATED AS PREJUDICIAL TO THE INTEREST OF THE REVENUE AND IF THE ASSESSING OFFICER HAS ADOPT ED ONE OF THE COURSES PERMISSIBLE UNDER LAW OR WHERE TWO 13 VIEWS ARE POSSIBLE AND THE ASSESSING OFFICER HAS TAKEN ONE VIEW UNDER WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER, UNLESS THE VIEW TAKEN BY THE ASSESSING OFFICER IS UNSUSTAINABLE UNDER THE LAW. (VI) IF WHILE MAKING THE ASSESSMENT, THE ASSESSING OFFICER EXAMINES THE ACCOUNTS, MAKES ENQUIRIES, APPLIES HIS MIND TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND DETERMINES THE INCOME, THE CIT, WHILE EXERCISING HIS POWE R UNDER SECTION 263, IS NOT PERMITTED TO SUBSTITUTE HIS ESTIMATE OF INCOME IN PLACE OF THE INCOME ESTIMATED BY THE ASSESSING OFFICER. (VII) THE ASSESSING OFFICER EXERCISE QUASI - JUDICIAL POWER VESTED IN HIM AND IF HE EXERCISE SUCH POWER IN ACCORDANCE WIT H LAW AND ARRIVES AS A CONCLUSION, SUCH CONCLUSION CANNOT BE TERMED TO BE ERRONEOUS SIMPLY BECAUSE THE CIT DOES NOT FEEL SATISFIED WITH THE CONCLUSION. (VIII) THE CIT, BEFORE EXERCISING HIS JURISDICTION UNDER SECTION 263, MUST HAVE MATERIAL ON RECORD TO ARRIVE AT A SATISFACTION. (IX) IF THE ASSESSING OFFICER HAS MADE ENQUIRIES DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON 14 THE RELEVANT ISSUES AND THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BE A LETTER IN WRITING AND THE ASSESSING OFFICER ALLOWED THE CLAIM ON BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, THE DECISION OF THE ASSESSING OFFICER CANNOT BE HELD TO BE ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DOES NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. 6 . ADVERTING TO THE FACTS OF THIS CASE IT I S FOUND THAT THE A.O. HAS FOUND COMPLETE ENQUIRIES REGARDING ALL THE POINTS RAISED BY LD. COMMISSIONER. THE ASSESSEE IN FACT OWNED ONLY TEN TRUCKS DURING THE YEAR AND THE OTHER TWO VEHICLES WHICH HAVE BEEN INCLUDED BY THE LD. COMMISSIONER ARE (I) JCB MACHI NE AND ( II) LOADER WHICH ARE NOT TRUCK TO BE USED FOR TRANSPORTING GOODS IN TERMS OF SECTION 44AE. THEREFORE, FINDING OF LD. COMMISSIONER IN THIS REGARD IS FAULTY. THE A.O. MADE QUERY VIDE LETTER DATED 29.06.2011 WITH REGARD TO ALL THE POINTS RAISED BY LD. COMMISSIONER IN HIS SHOW CAUSE NOTICE. THE ASSESSEE ALSO REPLIED IN DETAIL, A COPY OF WHICH IS ENCLOSED AT PAPER BOOK PAGE 188 TO 190, WHICH IS SELF EVIDENTIARY. WE HAVE EXAMINED THE ENTIRE RECORD AND HAVE FOUND THAT THERE IS NO FALLACY OR ERROR IN THE AS SESSMENT 15 ORDER IN RESPECT OF THE POINTS RAISED IN THE APPELLATE ORDER, IN VIEW OF THE LEGAL POSITION ON THIS SUBJECT DISCUSSED ABOVE. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT AND RESTORE THE ORDER OF LD. A.O. 7. IN THE RESULT, THE APPEAL OF THE ASS ESSEE IN ITA NO. 275/JU/2014 STANDS ALLOWED. ORDER PRON OUNCED IN THE COURT ON 04 TH SEPTEMBER , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEM B ER DATED : 04 TH SEPTEMB ER , 201 4 VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR