M/s Goa Bambay Roadlines, V. CIT, Hisar

ITA 3104/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7262 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-07-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SAROHA
• Assessee Lawyers: RAKESH JAIN ADVS
• Keywords: Assessment record; Revenue expenditure
• Section: 143(3); 194C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER, AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER ITA NO. 3104/DEL /2013 ASSESSMENT YEAR: 2008-09 M/S GOA BOMBAY ROADLINES VS. THE C.I.T. OLD STATE BANK STREET HISSAR NARWANA [HARYANA] NEW DELHI PAN : AAHFG 0227G [APPELLANT] [RESPONDENT] DATE OF HEARING : 26.07.2016 DATE OF PRONOUNCEMENT : 29.08.2016 APPELLANT BY : SHRI GURJEET SINGH & RAKESH JAIN, ADVS RESPONDENT BY : SHRI A.K. SAROHA, CIT-DR ORDER PER CHANDRA MOHAN GARG, JUDICIAL MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A), HISSAR, DATED 14/03/2013 FOR A .Y 2008-09 PASSED U/S 263(1) OF THE INCOME-TAX ACT, 1961 [HERE INAFTER REFERRED TO AS 'THE ACT'. 2 ITA NO. 3104/ DEL/2013 2 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS : 1. BECAUSE THE ACTION IS UNDER CHALLENGE ON FAC TS AND LAW QUA THE ASSUMPTION AND APPLICATION OF REVISION JURI SDICTION U/S 263 SINCE THERE IS 'MATERIAL FACTS' CONTAINING 'MAT ERIAL PARTICULARS' SHOWING THE APPLICATION OF MIND BY THE A.O. 2. BECAUSE THERE IS AN ERRONEOUS INTERPRETATION RENDERED TO THE 'PRIVITY OF CONTRACT' (INDIAN CONTRACT ACT 1872 ) BETWEEN THE CONSIGNOR AND THE TRANSPORTER (BENEFICIARY) BY CHAN GING THE NATURE OF THE ASSESSEE'S INCOME QUA THE AMOUNT OF R S. 1,37,04,773/-. 3. BECAUSE THE ACTION FOR INVOKING THE PROVISION OF SECTION 40(A)(IA) R/W SECTION 194C(3)(I) BEFORE AMENDMENT A ND SECTION 194C(6) W.E.F. 1.4.2009 IS BEING CHALLENGED ON FACT S AND LAW PARTICULARLY LOOKING INTO THE FACTS AND CIRCUMSTANC ES AND NATURE OF BUSINESS. 3. BRIEFLY STATED, THE FACTS GIVING RISE TO THIS AP PEAL, AS EMANATING FROM THE ASSESSMENT ORDER ARE THAT ON A P ERUSAL OF ASSESSMENT RECORDS, THE LD. CIT HISSAR NOTICED THAT THE ASSESSEE HAS CLAIMED CREDIT OF TDS OF RS.9,66,267/- ON GROSS RECEIPTS OF RS.4,22,44,740/- AS PER FORM(S) NO.16A WHEREAS GROS S RECEIPTS OF RS.2,90,04,667/- ONLY HAVE BEEN SHOWN IN THE PROFIT & LOSS ACCOUNT [PLA FOR SHORT]. IN THIS WAY, LESS RECEIPTS OF RS.1 ,32,40,073/- WERE SHOWN IN THE PLA BY THE ASSESSEE. THE LD. CIT IS SUED NOTICE U/S 263 OF THE ACT BY OBSERVING THAT THE A.O. FAILED TO (I ) NOTICE THE ISSUE, (II) MAKE NECESSARY INVESTIGATION AND (III) CONSEQUENTLY MAKE SUITABLE 3 ITA NO. 3104/ DEL/2013 3 ADDITIONS IN RESPECT OF THE DIFFERENCE OF RS.1,32,4 0,073/-. AFTER RECEIVING THE REPLY FROM THE ASSESSEE, THE LD. CIT, HISSAR PASSED IMPUGNED ORDER U/S 263 OF THE ACT BY SETTING ASIDE THE ASSESSMENT ORDER DATED 19.10.2010 PASSED U/S 143(3) OF THE ACT . NOW THE AGGRIEVED ASSESSEE HAS FILED THIS APPEAL CHALLENGIN G THE ISSUANCE OF NOTICE AND INVOCATION OF REVISIONAL POWERS CONTEMPL ATED U/S 263 OF THE ACT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAR EFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE LD. COUNSEL F OR THE ASSESSEE [LD. AR] FIRST OF ALL DREW OUR ATTENTION TOWARDS PAGE 1 PARA 3 OF THE IMPUGNED ORDER AND SUBMITTED THAT THE A.O, IN THE O RIGINAL ASSESSMENT PROCEEDINGS, ISSUED NOTICE AND CONDUCTED ENQUIRIES REGARDING THE ISSUE PICKED UP BY THE LD. CIT. THE LD. AR POINTED OUT TH AT THE ASSESSEE IN ITS RECEIPT AND PAYMENT ACCOUNT CUM PROFIT AND LOSS ACC OUNT AND BALANCE SHEET FOR THE YEAR ENDING 31.3.2008 [COPY PLACED AT PAGE 63 OF THE ASSESSEES PAPER BOOK 1] HAS SHOWN FREIGHT AMOUNTI NG TO RS. 2.90 CRORES AND COMMISSION RECEIPT OF RS. 3,45,800/- WHI CH HAS BEEN PROPERLY EXAMINED BY THE A.O DURING THE ORIGINAL AS SESSMENT PROCEEDINGS BY WAY OF ISSUING QUESTIONNAIRE DATED 2 7.8.2010 [PAGES 1 AND 2 PB 1] AND THE ASSESSEE FILED DETAILED REPLY T O THIS QUESTIONNAIRE 4 ITA NO. 3104/ DEL/2013 4 ON 12.10.2010 [PAGES 3 AND 4 PB 1]. THE LD. AR POI NTED OUT THAT IN THE SAID QUESTIONNAIRE 5 AND 8, THE A.O ASKED THE ASSES SEE TO FURNISH COMPLETE DETAILS OF COMMISSION RECEIPT OF RS. 3,45, 800/- WITH DOCUMENTARY EVIDENCE AND ALSO DIRECTED TO PRODUCE C OMPLETE BOOKS OF ACCOUNTS WITH BILLS AND VOUCHERS WHICH WERE SUBMITT ED DURING THE ASSESSMENT PROCEEDINGS BY WAY OF REPLY DATED 12.10. 2010. THE LD. AR CONTENDED THAT IN REPLY TO QUESTION NO. 11, THE ASS ESSEE SPECIFICALLY STATED THAT THE FIRM HAS NOT DEDUCTED TDS OF ANY PE RSON BECAUSE THERE WAS NO LIABILITY OF TDS AND THUS NO RETURN OF TDS H AS BEEN FILED. THE LD. AR ALSO CONTENDED THAT IN THE REPLY AT SL. NO. 5 AND 18, THE ASSESSEE SUBMITTED COPY OF ACCOUNTS OF COMMISSION R ECEIPT OF RS. 3,45,800/- AND REGULAR BOOKS OF ACCOUNTS, BILLS AND VOUCHERS WERE ALSO SUBMITTED FOR VERIFICATION. THEREFORE, THE A.O MAD E A DETAILED ENQUIRY DURING THE ORIGINAL ASSESSMENT PROCEEDINGS BY WAY OF ISSUING QUESTIONNAIRE AND RECEIVING REPLY FROM THE ASSESSEE . THE LD. AR ALSO SUBMITTED THAT THE COMMISSION LEDGER ACCOUNT FROM 1 .4.2007 TO 31.3.2008 WAS SUBMITTED TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WHICH IS AVAILABLE AT PAGES 1 TO 40 OF THE APB-II. THE LD. AR ALSO SUBMITTED THAT IN PARA 4.3.1, THE ASSESSEE S REPLY VIDE LETTER DATED 26.12.2012 HAS BEEN REPRODUCED BY THE LD. CIT WHEREIN THE ASSESSEE ELABORATELY SUBMITTED THAT AS PER MODUS OP ERANDI OF THE 5 ITA NO. 3104/ DEL/2013 5 ASSESSEE, GOODS ARE BOOKED BY THEM FOR TRANSPORTATI ON, FOR WHICH VEHICLES ARE ENGAGED BY US. IN THIS CASE, THE FREIG HT IS SETTLED WITH THE CONSIGNOR / CONSIGNEE, AND RECEIVED BY THE M. THE LD. AR FURTHER SUBMITTED THAT VEHICLE OWNERS WERE PAID THE AMOUNT OF FREIGHT AS PER THE VERBAL AGREEMENT WITH THEM. THIS ACT, ACCORDING TO THE LD. AR IS A PUCCA ARHATIYA. THE LD. AR SUBMITTED THAT MANY A TIMES THEY MAKE AVAILABLE VEH ICLES FOR TRANSPORTATION OF GOODS ON COMMISSION BASIS. IN THA T CASE THE FREIGHT WAS DIRECTLY PAID TO THE VEHICLE OWNERS BY THE CONSIGNOR TO THE CONSIGNEE AND THEY CHARGED FIXED AMOUNT OF C OMMISSION FOR THEIR SERVICES WHICH ACT IS A KACHCHA ARHATIYA ON COMMISSION BASIS. THE LD. AR FURTHER CONTENDED THAT THE AMOUNT DIRECTLY RECEIVED BY THEM FROM CONSIGNOR OR CONSIGN EE (AS PACCA ARHATIYA) HAS BEEN DECLARED AS 'GROSS RECEIPTS IN PROFIT & LOSS ACCOUNT WHEREAS THE AMOUNT RECEIVED AS COMMISSION O N BOOKING OF VEHICLES (AS KACHCHA ARHATIYA) HAS BEEN SHOWN UN DER THE HEAD COMMISSION IN PROFIT & LOSS ACCOUNT. COPY OF PROF IT & LOSS A/C & BALANCE SHEET AUDITED BY THE CHARTERED ACCOUNTANT H AS BEEN PLACED ON RECORD. IN THE CASE OF KACHCHA ARHATIYA, GROSS AMOUNT OF COMMISSION ONLY IS CONSIDERED FOR THE PURPOSE OF TURNOVER. 6 ITA NO. 3104/ DEL/2013 6 5. THE LD. AR FURTHER SUBMITTED THAT ON THE AMOUNT OF RS. 1.32 CRORES, THE ASSESSEE ONLY RECEIVED COMMISSION IN TH E FORM OF CASH AND TDS CERTIFICATES WHEREIN TDS WAS DEDUCTED IN TH E NAME OF THE ASSESSEE AND THUS CASH COMMISSION AND TDS AMOUN T WERE TREATED BY THE ASSESSEE AS ITS INCOME. THE LD. AR VEHEMENTLY CONTENDED THAT THE ASSESSEE RENDERED SERVICES AS KA CCHA ARHATIA WHICH BROUGHT COMMISSION TO THE ASSESSEE IN THE FOR M OF CASH AND TDS CERTIFICATES WHICH CREATED DOUBT IN THE MIND OF THE CIT AND IN THIS, THE CIT HAS TO APPLY HIS MIND TO THE FACTS AND MODUS OPERANDI OF THE ASSESSEES BUSINESS AS STATED ABOVE . THE LD. AR ALSO POINTED OUT THAT IF THERE IS NO WRITTEN AGREEM ENT, THEN TDS PROVISIONS OF SECTION 194 C IS NOT APPLICABLE AND T HE ASSESSEE ACTED AS KACCHA ARHATIA ON VERBAL AGREEMENT ONLY AN D THEREFORE, THE ASSESSEE WAS ENTITLED TO RECEIVE COMMISSION ONL Y AND FREIGHT WAS DIRECTLY PAID BY THE CONSIGNER OR CONSIGNEE TO THE TRANSPORT VEHICLE OWNER AFTER DEDUCTING TDS IN THE NAME OF TH E ASSESSEE BECAUSE HE IS UNDERTAKING SERVICES OF MAKE AVAILABL E VEHICLES FOR TRANSPORTATION OF GOODS TO THE DESTINATION OF THE C ONSIGNER TO THE DESTINATION OF THE CONSIGNEE IN WHICH THE ASSESSEE IS RECEIVING CASH COMMISSION, TDS CERTIFICATES WHICH ALSO FORM P ART OF COMMISSION RECEIPTS AND THE ASSESSEE OFFERED ENTIRE COMMISSION 7 ITA NO. 3104/ DEL/2013 7 RECEIPTS TO TAX WHICH ALSO INCLUDES AMOUNT OF TDS V OUCHERS WHICH WERE CREDITED TO THE COMMISSION ACCOUNT ON 31.3.200 8 WITHIN THE FINANCIAL PERIOD AND IN THIS SITUATION THE ORDER OF THE AO COULD NOT ALLEGE AS ERRONEOUS OR PREJUDICIAL TO THE INTER EST OF THE REVENUE BECAUSE THE AO MADE SPECIFIC ENQUIRY WITH R EGARD TO COMMISSION RECEIPT RECEIVED BY THE ASSESSEE ON THE ACT OF KACCHA ARHATIA WHICH INCLUDES AMOUNT OF TDS CERTIFICATES A ND THE ASSESSEE HAS SHOWN ENTIRE COMMISSION RECEIPTS IN CA SH AND IN THE FORM OF TDS CERTIFICATES TO TAX AND ACCORDINGLY CLA IMED TDS SET OFF DURING THE ASSESSMENT PROCEEDINGS UNDER THE BON AFIDE BEING THAT THE ASSESSEE IS RECEIVING COMMISSION ON THE AC T OF KACCHA ARHATIA IN THE FORM OF CASH AND COMMISSION. HE, TH EREFORE, OFFERED BOTH THE ELEMENTS TO TAX AND BONAFIDE CLAIM OF TDS WHICH WAS ALLOWED BY THE AO AND THIS ORDER OF THE AO CANN OT BE HELD AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REV ENUE. TO SUPPORT THIS CONTENTION, THE LD. AR HAS PLACED RELI ANCE ON THE DECISION OF THE HON'BLE HIGH COURT IN THE CASE OF C IT VS. SUNBEAM AUTO LTD REPORTED AT [2011] 332 ITR 167 [DHC] AND T HE DECISION OF THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CA SE OF UNITED ROLE LAND LTD REPORTED AT [2010] 322 ITR 594 [P&H]. THE LD. AR ALSO DREW OUR ATTENTION TOWARDS THE JUDGMENT OF THE HON'BLE 8 ITA NO. 3104/ DEL/2013 8 SUPREME COURT IN THE CASE OF CIT VS. MAX INDIA LTD [2007] 295 ITR 282 [SC] AND SUBMITTED THAT THE CIT PASSED IMPUGNED ORDER U/S 263 OF THE ACT AND IT WAS HELD BY THE HON'BLE HIGH COURT THAT WHERE TWO VIEW ARE POSSIBLE AND THE ITO HAS TAKEN O NE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS ERRONEOUS OR PREJUDICIAL TO THE INTEREST OF THE REVENUE AND T HE CIT COULD NOT EXERCISE POWERS U/S 263 OF THE ACT. THE LD. AR ALSO DREW OUR ATTENTION TOWARDS THE ORDER OF THE ITAT CHANDIGARH BENCH DATED 22.9.2011 IN THE CASE OF JAGRON TRUCK OPERATORS UNI ON VS. ITO IN ITA NO. 560/CHD/2011 FOR A.Y 2006-07 AND SUBMITTED THAT THE PROVISIONS OF SECTION 194C ARE NOT ATTRACTED IN RES PECT OF PAYMENTS MADE BY THE ASSESSEE UNION TO ITS TRUCK OPERATORS/OWNERS AND CONSEQUENTLY DEDUCTION CLAIMED ON ACCOUNT OF SUCH FREIGHT CHARGES IS TO BE ALLOWED AS DEDUCTI ON AND PROVISIONS OF SECTION 40A(IA) ARE NOT ATTRACTED. 6. REPLYING TO ABOVE SUBMISSIONS OF THE LD. DR, PLA CING RELIANCE ON THE DECISION OF THE ITAT DELHI E BENCH IN THE CASE OF NIIT VS. CIT IN ITA NO. 2057/DEL/2010 FOR A.Y 1999-2000 DATE D 27.3.2015 REPORTED AT 60 TAXMANN.COM 313 [DELHI SUBMITTED THA T AS PER PARA 28 TO 28.2 OF THIS ORDER, MERELY A QUESTIONNAI RE WAS ISSUED 9 ITA NO. 3104/ DEL/2013 9 AND REPLY WAS FILED BY THE ASSESSEE IPSO FACTO DOES NOT FULFIL THE REQUIREMENTS OF ADEQUATE ENQUIRE. THE LD. DR VEHEME NTLY POINTED OUT THAT THE ASSESSEE UNDERTOOK TRANSPORTAT ION LIABILITY OF GOODS FORM CONSIGNER DESTINATION TO CONSIGNEE DE STINATION AND IT WORKED AS PRINCIPAL TO PRINCIPAL BASIS AND THE A SSESSEES CONTENTION THAT HE IS COMMISSION AGENT IS NOT ACCEP TABLE. THE LD. DR ALSO CONTENDED THAT THE AO DID NOT ASK THE A SSESSEE TO FILE RECONCILIATION AND HE DID NOT SEE BECAUSE OF THE DI FFERENCE BETWEEN THE AMOUNT OF FREIGHT RECEIPTS AND TDS CLAI M AND HE DID NOT EXAMINE THE ISSUE PROPERLY AND ADEQUATELY, THER EFORE, IT IS A CASE OF ADEQUATE ENQUIRY WHICH ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. TH E LD. DR FURTHER DREW OUR ATTENTION TO APB 1 PAGES 3-4 AND 39-40 AND CONTENDED THAT AT PAGE 10, THE CIT ENTERED THE DIFF ERENCE BETWEEN THE FIGURE OF TDS CERTIFICATES AND RECEIPT OF FREIGHT ACCOUNTED BY THE ASSESSEE AND NO ENQUIRY WAS MADE B Y THE AO TO VERIFY THIS DIFFERENCE, THEREFORE, THE ORDER WAS RI GHTLY HELD AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. 7. THE LD. DR FURTHER DREW OUR ATTENTION TOWARDS PA RA 7.3.1. AT PAGES 8 OF THE CITS ORDER AND CONTENDED THAT ON EX AMINATION OF CONTENTION OF THE ASSESSEE, IT WAS FOUND THAT THE A CCOUNT 10 ITA NO. 3104/ DEL/2013 10 STATEMENT RECEIVED FROM THE SIX COMPANIES REVEALS T HAT HE DETAILS OF FREIGHT RECEIPTS, AS SHOWN IN THE BOOKS OF ACCOUNTS HAS NOT BEEN ACCOUNTED BY THE ASSESSEE IN THE PLA. THE LD. DR FURTHER CONTENDED THAT UNILATERAL ACT OF THE ASSESS EE CLAIMING CREDIT OF TDS, CLAIMING IT TO BE RECEIVED AS COMMIS SION AND NOT ACCOUNTING FREIGHT RECEIPTS, IS CLEARLY AGAINST THE PROVISIONS OF THE ACT AS WELL AS THE ESTABLISHED PRINCIPLES OF AC COUNTING. THEREFORE, THE CIT WAS RIGHT IN INVOKING REVISION P ROVISIONS OF SECTION 263 OF THE ACT. THE LD. DR ALSO POINTED OU T THAT FROM THE LETTER RECEIVED FROM KALIKA STEEL ALLOYS PVT. AVAIL ABLE AT PAGE 47 OF THE ASSESSEES PB, IT IS CLEAR THAT THE PAYMENTS HAVE BEEN MADE TO THE ASSESSEE BY M/S KALIKA STEEL ALLOYS PVT . LTD UNDER A CONTRACT AND THE AO HAS NOT EXAMINED THE ISSUE IN A PROPER PERSPECTIVE. THE LD. DR ALSO POINTED OUT THAT THE AO DID NOT CALL FOR THE REQUIRED DETAILS, HENCE HE DID NOT MAKE ADE QUATE ENQUIRY IN REGARD TO THE FREIGHT RECEIPTS AND, THEREFORE, I T IS CLEAR CASE OF INADEQUATE ENQUIRY WHICH ESTABLISHES THE FACT THAT THE ORDER OF THE AO IS NOT ONLY ERRONEOUS BUT ALSO PREJUDICIAL T O THE INTEREST OF THE REVENUE. THEREFORE, THE LD. CIT WAS JUST AN D CORRECT IN REVISING THE ASSESSMENT ORDER. THE LD. DR LASTLY P OINTED OUT THAT THERE IS NO REGULAR ENTRY OF TDS IN THE COMMISSION ACCOUNT AND 11 ITA NO. 3104/ DEL/2013 11 THE ASSESSEE MADE ALL ENTRIES ON THE LAST DATE OF F .Y. I.E. 31.3.2008 AND TDS SHOWN FROM VARIOUS CONSIGNERS AND CONSIGNEES IS OF DIFFERENT PERCENTAGE WHICH CREATES A DOUBT IN THE MIND ON THE TDS CERTIFICATES ISSUED BY RESPECTIVE CONSIGNER S AND CONSIGNEES IN FAVOUR OF THE ASSESSEE ESPECIALLY WHE N THE AMOUNT PERTAINING TO TDS HAS NOT BEEN SHOWN AS FREIGHT REC EIPT BY THE ASSESSEE IN ITS PLA. 8. IN REJOINDER, THE LD. AR CONTENDED THAT THE LETT ER OF M/S KALIKA STEEL ALLOYS PVT. LTD POINTED OUT BY THE CIT -DR AT PAGE 47 OF THE APB-II, IS NOT AN AGREEMENT BUT IT IS MERELY AN INFORMATION TO THE CIT REGARDING PAYMENTS MADE TO THE ASSESSEE AGAINST VARIOUS INVOICES TO THE TRUCK DRIVERS/OWNERS WHO US ED TO BRING THE MATERIAL TO THE PREMISES OF M/S KALIKA STEEL AL LOYS PVT LTD. AND THERE IS NO OTHER DOCUMENT WHICH COULD ESTABLIS H THAT THERE WAS WRITTEN AGREEMENT BETWEEN EH ASSESSEE AND THE R ESPECTIVE CONSIGNERS AND CONSIGNEES REGARDING TRANSPORTATION OF GOODS. THE LD. AR ALSO POINTED OUT THAT THE ASSESSEE DOES NOT OWN ANY TRUCK OR VEHICLE AND THE ASSESSEE IS MERELY WORKING AS CO MMISSION AGENT TO ESTABLISH THE CONTRACT BETWEEN THE CONSIGN ERS WHO WISH TO SEND GOODS TO THE CONSIGNEES LOCATED AT DIFFEREN T PLACES. THEREFORE, IT CANNOT BE STATED THAT THE ASSESSEE IT SELF UNDERTOOK 12 ITA NO. 3104/ DEL/2013 12 THE LIABILITY OF TRANSPORTATION OF GOODS FROM CONSI GNERS DESTINATION TO THE CONSIGNEE DESTINATION AND THE A SSESSEE MERELY WORKED AS A LIAISON AGENT BETWEEN THE CONSIGNERS- CONSIGNEES/TRUCK VEHICLE OWNERS/DRIVERS BY CHARGING COMMISSION. THEREFORE, THE PROVISIONS OF SECTION 194C OF THE AC T ARE NOT APPLICABLE TO THE ASSESSEE. 9. ON CAREFUL CONSIDERATION OF THE ABOVE, WE ARE OF THE VIEW THAT THE CIT(A) HAS NOT ALLEGED THAT THE ASSES SEE IS TRUCK OR VEHICLE OWNER AND UNDERTAKES THE RESPONSIB ILITIES OF TRANSPORTATION OF GOODS FROM THE CONSIGNERS DESTIN ATION TO THE CONSIGNEE DESTINATION. FROM THE RECEIPT AND PAYME NT ACCOUNT AND PLA FOR THE RELEVANT PERIOD PLACED AT PAGE 63 O F APB-1, WE NOTE THAT THE ASSESSEE HAS SHOWN FREIGHT RECEIPTS O F 2.90 CRORES AND COMMISSION RECEIPT OF RS. 3,45,800/-. AGAINST THIS RECEIPT, THE ASSESSEE CLAIMED FREIGHT PAID OF RS. 2.79 CRORE S. FROM THE QUESTIONNAIRE DATED 27.8.2010, THE AO DURING THE AS SESSMENT PROCEEDINGS U/S 143(1) OF THE ACT AND REPLY OF THE ASSESSEE TO THE SAID QUESTIONNAIRE DATED 10.12.2010, WE CLEARLY NOT E THAT THE AO ASKED THE ASSESSEE TO FURNISH VARIOUS DOCUMENTS/DET AILS/BILLS AND VOUCHERS INCLUDING DETAILS REGARDING COMMISSION REC EIVED ALONGWITH DOCUMENTARY EVIDENCE, COMPLETE BOOKS OF A CCOUNT AND 13 ITA NO. 3104/ DEL/2013 13 THE ASSESSEE SUBMITTED THE SAME ALONGWITH REPLY DAT ED 12.10.2010. THIS ACTION OF THE AO HAS BEEN STATED IN THE FIRST PARA OF THE ASSESSMENT ORDER. IN PARA 2 OF THE ASS ESSMENT ORDER, THE AO CATEGORICALLY NOTED THAT THE ASSESSEE FIRM I S DOING THE BUSINESS OF TRANSPORT AGENCY ON COMMISSION BASIS AN D HAS NO TRUCK OF THEIR OWN. BEFORE THAT, IN PARA 1, THE AO NOTED THAT AUDITED COPIES OF RECEIPT AND PAYMENT ACCOUNT CUM P LA AND BALANCE SHEET OBTAINED FROM THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WRITTEN EXPLANATION FILED FROM TIME TO TIME WAS EXAMINED WITH REFERENCE TO THE DETAILS GIV EN IN RETURN AND ALSO VERIFIED FROM THE BOOKS OF ACCOUNT WHICH W ERE PRODUCED AND TEST CHECKED. THE AO NOTICED THAT THE DETAILS OF INFORMATION ASKED FOR HAVE BEEN FURNISHED AND PLACED ON RECORD MAKING IT AN INTEGRAL PART OF THE ASSESSMENT RECORD AND AFTER AN ALYSING THE INFORMATION AND DISCUSSIONS MADE WITH THE COUNSEL O F THE ASSESSEE, ASSESSMENT HAS BEEN FRAMED. IN SECOND PA RA, THE AO NOTED THAT THE ASSESSEE HAS PAID FREIGHT OF RS. 2.7 9 CRORES AND SALARY AND WAGES AT RS. 6.94 LAKHS AND THE ASSESSEE WAS ASKED TO FURNISH THE COMPLETE DETAILS IN RESPECT OF THESE EX PENSES. THE AO FURTHER NOTED THAT ON AN EXAMINATION OF THE BOOK S OF ACCOUNT AND THE DETAILS SO FILED, IT WAS FOUND THAT SOME OF THE FREIGHT 14 ITA NO. 3104/ DEL/2013 14 EXPENSES WERE SUPPORTED WITH INTERNAL VOUCHERS. TH E POSITION WITH REGARD TO SALARY WAS MORE ALARMING IN AS MUCH AS ALL THE EXPENSES WITH REGARD TO THE SALARY WERE SUPPORTED T HROUGH INTERNAL VOUCHERS AND THAT TOO PAID IN CASH. ACCOR DINGLY, THE AO, AFTER DISCUSSING THE MATTER WITH THE COUNSEL OF THE ASSESSEE WHO AGREED TO AN ADHOC ADDITION OF RS. 75,000/- TO COVE R THE AFORESAID DISCREPANCIES AND ALSO TO PLUG IN THE LEA KAGE IN PROFIT, ADDED A SUM OF RS. 75,000/- TO THE TOTAL INCOME OF THE ASSESSEE. 10. IN THE CASE OF ITAT DELHI E BENCH NIIT VS. CI T [SUPRA], AUTHORED BY ONE OF US, IT WAS OBSERVED THUS: IF AO ACCEPTS OR REJECTS ANY CLAIM OF THE ASSESSEE WITHOUT DUE APPLICATION OF MIND AND IF SUCH FAILURE CAUSES PREJUDICE TO REVENUE, THE COMMISSIONER WOULD BE WELL WITHIN H IS POWERS U/S 263 TO INTERVENE IN THE MATTER. AN INQUI RY WHICH IS JUST FARCE OR MERE PRETENCE OF INQUIRY, CANNOT B E SAID TO BE AN INQUIRY AT ALL, MUCH LESS AN INQUIRY NEEDED T O REACH THE LEVEL OF SATISFACTION OF THE AO ON THE GIVEN IS SUE. THE LEVEL OF SATISFACTION WOULD OBVIOUSLY MEAN THAT HE HAS CONDUCTED THE INQUIRY IN A MANNER WHEREBY HE PLACES ON RECORD THE MATERIAL ENOUGH TO REACH THE SATISFACTIO N, WHICH A RATIONAL PERSON, BEING INFORMED OF THE NUANCES OF TAX LAWS WOULD REACH AFTER DUE APPRECIATION OF SUCH MAT ERIAL. IF THIS COMPONENT IS MISSING, IT WILL ALWAYS BE A CASE OF LACK OF 15 ITA NO. 3104/ DEL/2013 15 INQUIRY AND NOT INADEQUATE INQUIRY. WE FIND THAT LD . COMMISSIONER, WHILE CONSIDERING THIS ARGUMENT OF AS SESSEE HAS OBSERVED THAT THE REPRESENTATIVE OF THE ASSESSE E WAS ASSURED THAT THIS ISSUE WILL BE CONSIDERED WITH IND EPENDENT APPLICATION OF MIND WHILE PASSING THE ORDER U/S 263 . THEREFORE, WHEN SPECIFIC ISSUES WILL BE CONSIDERED, IT WILL BE EXAMINED WHETHER THE AO HAD REACHED THE LEVEL OF SATISFACTION BY CARRYING OUT NECESSARY INQUIRIES QU A THAT ISSUE OR NOT. GROUND IS DISPOSED OF ACCORDINGLY. 11. IN THE LIGHT OF THE ABOVE PROPOSITION, WHEN WE ANALYSE THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE NOTE THAT THE AO ACCEPTED THE AMOUNT OF FREIGHT RECEIPTS AND FREIGHT PAID/ SHOWN IN THE PLA BUT DISPUTED THE AMO UNT OF COMMISSION OF RS. 3,45,800/- AND THEREAFTER, ISSUED A QUESTIONNAIRE TO THE ASSESSEE ON VARIOUS ISSUES INC LUDING THE ISSUE OF SAID COMMISSION. THE ASSESSEE FILED DETAI LED REPLY ALONGWITH COPY OF FREIGHT PAID, COPY OF ACCOUNT OF FREIGHT RECEIPT, BALANCE SHEET OF CREDITORS AND EXPLANATION REGARDING CLAIM OF EXPENSES. THE ASSESSEE FILED COPY OF ACCOU NT OF COMMISSION RECEIVED OF RS. 3,45,800/- AND REGULAR B OOKS OF ACCOUNTS, BILLS AND VOUCHERS WERE ALSO SUBMITTED FO R VERIFICATION. FROM COPY OF COMMISSION ACCOUNT FROM 1.4.2007 TO 31.3.2008 SUBMITTED AT PAGES 1 TO 40 OF THE APB II, WE 16 ITA NO. 3104/ DEL/2013 16 OBSERVE THAT THE ASSESSEE SUBMITTED THAT THE ENTIRE DETAILS REGARDING RECEIPT FOR COMMISSION FROM 1.4.2007 TO 3 1.3.2008 AND WE ALSO OBSERVE THAT THE ASSESSEE ALSO CREDITED AMOUNT OF TDS RECEIVABLE FROM VARIOUS PARTIES, BEING AMOUN T OF TDS CERTIFICATES RECEIVED FROM VARIOUS CLIENTS WHICH WA S ALSO TRANSFERRED TO COMMISSION ACCOUNT. THE CIT HAS NOT RAISED ANY DOUBT REGARDING AMOUNT OF COMMISSION SHOWN BY T HE ASSESSEE AND THE MODUS OPERANDI OF BUSINESS OF THE ASSESSEE WHEREIN IT UNDERTOOK TWO KINDS OF ACTIVITIES FOR EA RNING COMMISSION VIZ. PUCCA ARAHTIA WHEREIN THE ASSESSEE RECEIVED FREIGHT FROM CONSIGNER/CONSIGNEE AND AFTER DEDUCTIN G ITS COMMISSION REMAINING AMOUNT IS FURTHER PAID TO THE TRUCK OWNERS/DRIVERS AD IN THIS SEGMENT, THE AMOUNT OF FR EIGHT RECEIVED IS SHOWN ON THE RIGHT SIDE OF THE PLA AND FREIGHT PAID TO THE TRUCK OWNER/DRIVERS IS SHOWN ON THE LEF T SIDE OF THE PLA AND THE AMOUNT OF SURPLUS BECOME THE PROFIT OF THE EARNED AS COMMISSION ON THE SECOND SEGMENT WHEN THE ASSESSEE WORKS AS KACCHA ARHATIA, IT MAKES AVAILABL E THE VEHICLES TO THE CONSIGNERS FOR TRANSPORTATION OF GO ODS FROM THE CONSIGNER DOORSTEP TO THE CONSIGNEE DOORSTEP AN D ONLY CHARGING COMMISSION IN THE FORM OF CASH/TDS CERTIFI CATES 17 ITA NO. 3104/ DEL/2013 17 ISSUED BY THE RESPECTIVE PAYER EITHER CONSIGNER OR CONSIGNEE. WE SHOULD BEAR IN MIND THAT IN THE KACCHA ARHATIA A CCOUNT, THE ASSESSEE NOT ONLY CREDITED COMMISSION RECEIVED IN CASH BUT ALSO CREDIT AMOUNT OF COMMISSION RECEIVED BY IT DURING THE FINANCIAL PERIOD AND THESE COMMISSION AMOUNTS R ECEIVED IN THE FORM OF TDS CERTIFICATES HAS BEEN CREDITED A T THE END OF THE FINANCIAL YEAR WHICH IS THE NORMAL PRACTICE FOLLOWED BY THE ASSESSEE IN ALL THE EARLIER AND SUBSEQUENT Y EARS AND THIS FACT HAS NOT BEEN CONTRACTED OR DEMOLISHED BY THE CIT OR LD. DR. 12. NOW WE FIND IT APPROPRIATE IT CONSIDER THE RATI O OF THE DECISIONS RELIED UPON BY THE LD. AR. IN THE CASE O F CIT VS. SUNBEAM [SUPRA] THE HON'BLE HIGH COURT OF DELHI HEL D THAT IF THE AO HAVING MADE ENQUIRES, ELICITED REPLIES AND T HEREAFTER ALLOWED THE EXPENDITURE ON TOOLS AND DUES AS REVENU E EXPENDITURE, IT CANNOT BE SAID THAT IT IS A CASE O F LACK OF ENQUIRY AND, THEREFORE, THE ASSESSMENT ORDER PASSE D BY THE AO ALLOWING DEDUCTION OF SAID EXPENDITURE COULD NOT BE REVISED U/S 263 OF THE ACT, MORE SO, AS THE VIEW TA KEN BY THE AO WAS ONE OF THE POSSIBLE VIEWS AND THE CIT HIMSEL F WAS NOT CLEAR AS TO WHETHER THE SAID EXPENDITURE IS TO BE T REATED AS 18 ITA NO. 3104/ DEL/2013 18 CAPITAL OR REVENUE EXPENDITURE. THEREFORE, THE ORDE R CANNOT BE ALLEGED AS ERRONEOUS OR PREJUDICIAL TO THE INTER EST OF THE REVENUE. 13. IN THE CASE OF CIT VS. UNITED RICE LAND [SUPRA] , IT HAS BEEN HELD THAT THERE BEING NEITHER ANY ORAL OR WRIT TEN AGREEMENT BETWEEN THE ASSESSEE AND THE ASSESSEE TRANSPORTERS OF GOODS NOT IT IS PROVED THAT ANY FRE IGHT CHARGES WERE PAID TO THEM IN PURSUANCE OF A CONTRAC T FOR A SPECIFIC PERIOD, QUANTITY OR PRICE, THE ASSESSEE WA S NOT LIABLE TO DEDUCT TAX U/S 194C OF THE ACT FROM THE P AYMENTS MADE TO THE TRANSPORTERS. 14. REVERTING BACK TO THE FACTS OF THE PRESENT CASE AS EMANATING FROM THE ORIGINAL ASSESSMENT ORDER AT PAR A 2, IT IS AMPLY CLEAR THAT THE ASSESSEE FIRM IS DOING BUSINES S OF TRANSPORTATION AGENCY ON COMMISSION BASIS AND HAS N O TRUCK OR VEHICLE OF ITS OWN. SO FAR AS THE ISSUE OF ORAL OR WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE TRANSPORTERS IS CONCERNED, WE ARE UNABLE TO SEE ANY DOCUMENT OR FAC T WHICH COULD LEAD US TO INFER THAT THE ASSESSEE WAS PROVID ING SERVICES TO THE VARIOUS CONSIGNORS OR CONSIGNEES FO R 19 ITA NO. 3104/ DEL/2013 19 TRANSPORTATION OF GOODS UNDER ANY ORAL OR WRITTEN A GREEMENT. WE MAY ALSO POINT OUT THAT THE CIT HAS NOT ALLEGED THAT IT WAS THE FIRST YEAR OF BUSINESS OF THE ASSESSEE AND THAT THE ACCOUNTING PRACTICE ADOPTED BY THE ASSESSEE FOR THE F.Y. UNDER CONSIDERATION WAS CONSISTENTLY BEING ADOPTED BY THE ASSESSEE DURING THE EARLIER AND SUBSEQUENT A.Y ALSO WITHOUT ANY CHANGE OR DEVIATION. SO FAR AS MODUS OPERANDI O F THE BUSINESS OF THE ASSESSEE IS CONCERNED, WE ARE CONVI NCED THAT THERE WERE TWO TYPES OF TRANSACTIONS VIZ; FIRST, WH ERE THE ASSESSEE RECEIVES FREIGHT AMOUNT FROM CONSIGNERS/CO NSIGNEES AND AFTER DEDUCTING ITS COMMISSION, BALANCE IS PAID TO THE TRUCK OWNERS/DRIVERS WHO PROVIDED TRANSPORTATION SE RVICES FROM THE DESTINATION OF THE CONSIGNOR TO THE DESTIN ATION OF THE CONSIGNEE. SECOND TYPE OF MODUS OPERANDI OF THE ASSESSEE FIRM, AS NOTED BY US AND COULD NOT BE DEMO LISHED BY THE CIT OR LD. DR, IS THAT THE ASSESSEE MAKES AVAIL ABLE TRUCKS/VEHICLES FOR TRANSPORTATION OF GOODS BY FIXI NG FREIGHT AND THEREAFTER, FREIGHT IS DIRECTLY PAID BY THE CONSIGNOR/CONSIGNEE TO THE TRUCK OWNERS/DRIVERS AND THE ASSESSEE, IN THE CAPACITY OF TRANSPORTATION COMMISS ION AGENT ONLY RECEIVES COMMISSION IN CASH AND IN THE FORM OF TDS 20 ITA NO. 3104/ DEL/2013 20 CERTIFICATES ISSUED BY RESPECTIVE PAYERS WHICH WAS ALSO ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS OF THE ASSES SEE AND CREDITED TO THE COMMISSION ACCOUNT PERTAINING TO TH E SERVICES RENDERED BY THE ASSESSEE AS KACCHA ARHATIA . ON A POINT RAISED BY THE CIT-DR THAT A DIFFERENCE IS SHO WN BETWEEN THE PERCENTAGE EARNED BY THE ASSESSEE FROM THE ACTIVITY OF FREIGHT RECEIVED AND FREIGHT PAID AS PU CCA ARHATIA WITH THE PERCENTAGE EARNED BY THE ASSESSEE FROM IMP UGNED COMMISSION OF RS. 3,45,800/- WHICH WAS EARNED ON RE CEIPT OF RS. 1.32 CRORES, IT WAS CONTENDED THAT FOR WORKING AS PUCCA ARHATIA, THE ASSESSEE REQUIRES MORE STAFF AND UNDER TAKES RISK OF RECEIVING PAYMENT ON BEHALF OF TRUCK OWNERS AND IT IS FURTHER PAID TO TRUCK OWNERS, THEREFORE, THE PERCEN TAGE OF COMMISSION EARNED THEREFROM IS LITTLE HIGHER THAN T HE COMMISSION EARNED FROM KACCHA ARHATIA WHEREIN NO RI SK OF RECEIVING FREIGHT AMOUNT AND FURTHER PAYING THE DRI VERS AND NO RISK IS INVOLVED AND THERE WAS NO NEED OF APPOIN TING ANY STAFF, CASHIER OR MAINTAINING BANK ACCOUNT OR CASH IN HAND. THEREFORE, THIS DIFFERENCE IS QUITE JUSTIFIED WHICH WAS ALSO NOTICED BY THE AO AFTER ANALYSING THE REPLY TO THE QUESTIONNAIRE OF THE ASSESSEE FILED ON 12.10.2010 B EFORE THE 21 ITA NO. 3104/ DEL/2013 21 AO. 15. ON THE BASIS OF FOREGOING DISCUSSION, WE ARE SA TISFIED AND CONVINCED THAT THE AO PICKED UP THE ISSUE OF CO MMISSION RECEIVED BY THE ASSESSEE AND SHOWN IN THE CREDIT SI DE OF THE PLA AND MADE ENQUIRY FROM THE ASSESSEE AND AFTER RE CEVING REPLY FROM THE ASSESSEE AND VERIFYING THE BOOKS OF ACCOUNTS AND RELEVANT BILLS AND VOUCHERS SUBMITTED BY THE AS SESSEE, ACCEPTED THE CLAIM OF THE ASSESSEE. WE MAY FURTHER POINT OUT THAT WHEN THE ASSESSEE IS ADOPTING THIS PRACTIC E OF CREDITING COMMISSION IN CASH AND TDS VOUCHERS TO TH E COMMISSION ACCOUNT PERTAINING TO THE SERVICES RENDE RED AS KACCHA ARHATIA AND CREDITING TOTAL AMOUNT OF COMMIS SION TO THE PLA AND CLAIMING TDS DURING THE ASSESSMENT PROC EEDINGS, THEN THE PRACTICE WHICH HAS BEEN CONSISTENTLY FOLLO WED BY THE ASSESSEE DURING THE EARLIER AND SUBSEQUENT A.YS AND ACCEPTED BY THE AO COULD NOT BE DISTURBED WITHOUT A NY SUBSTANTIAL MATERIAL OR ALLEGATION AND THE AO WAS Q UITE JUSTIFIED AND CORRECT IN ACCEPTING THE CLAIM OF THE ASSESSEE IN THIS REGARD AFTER DUE VERIFICATION OF DETAILS, P LA, TDS CERTIFICATES AND OTHER RELEVANT BILLS AND VOUCHERS PRODUCED BY THE ASSESSEE. WE MAY POINT OUT THAT IT IS NOT R EQUIRED FOR 22 ITA NO. 3104/ DEL/2013 22 THE AO TO MENTION MINUTE DETAILS OF ASSESSMENT PROC EEDINGS IN THE ASSESSMENT ORDER IN SO MANY WORDS, HOWEVER, FOR INVOKING THE PROVISIONS OF SECTION 263 OF HT ACT, I T HAS TO BE ESTABLISHED THAT THE CONCLUSION DRAWN BY THE AO WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND WAS N OT SUSTAINABLE. THEREFORE, THE ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE ON ACCOU NT OF INADEQUATE ENQUIRY ON A PARTICULAR ISSUE WHICH CAUS ED PREJUDICE TO THE REVENUE. IN THE PRESENT CASE, WHEN THE ASSESSEE IS SHOWING ITS MODUS OPERANDI OF BUSINESS ON TWO SEGMENTS AND MAKING ACCOUNTING ENTRIES ACCORDINGLY, THEN, WE ARE UNABLE TO SEE ANY REASON TO HOLD THAT THE CO NCLUSION DRAWN BY THE AO OR IN ACCORDANCE WITH THE PROVISION S OF THE ACT OR WAS UNSUSTAINABLE AS PER RELEVANT PROVISIONS OF THE ACT. IN THE PRESENT CASE, SINCE THE ASSESSEE FIRM IS NOT OWNING ANY TRUCKS OR VEHICLES OF ITS OWN AND MERELY WORKING AS TRANSPORTATION COMMISSION AGENT, AND IT IS RUNNI NG SERVICES WITHOUT ANY ORAL OR WRITTEN AGREEMENT, THE N THE PROVISIONS OF SECTION 194C OF THE ACT DO NOT APPLY TO THE TRANSACTIONS UNDERTAKEN BY THE ASSESSEE. SO FAR AS DIFFERENCE BETWEEN COMMISSION EARNED FROM PUCCA AND KACCHA ARH ATIA IS 23 ITA NO. 3104/ DEL/2013 23 CONCERNED, WE ARE SATISFIED THAT FOR UNDERTAKING PU CCA ARHATIA SERVICES, THE ASSESSEE REQUIRES NUMBER OF S TAFF MEMBERS AND IT HAS TO UNDERTAKE THE RISK OF RECEIVI NG AND PAYING CASH WHEREAS, IN THE KACCHA ARHATIA WORKING, THE ASSESSEE REQUIRES NO STAFF MEMBERS AND THE RISK FAC TOR IS VERY LESS AND THUS THE DIFFERENCE IN THE PERCENTAGE COMMISSION EARNED FROM TWO DIFFERENT ACTIVITIES IS QUITE JUSTIFIED WHICH CANNOT BE TAKEN AS AN ALLEGATION TO THE CONCLUSION DRAWN BY THE AO THAT THE ORDER IS ERRONE OUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE PRE SENT CASE CANNOT BE HELD AS A LACK OF ENQUIRY. THEREFORE, WE ARE UNABLE TO AGREE WITH THE CONCLUSION DRAWN BY THE CI T, HISSAR THAT THE ORDER OF THE AO PASSED U/S 143(3) OF THE A CT DATED 19.10.2010 IS ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE WHICH REQUIRES INVOCATION OF REVISIONAL POW ERS U/S 263 OF THE ACT. ON THE BASIS OF FOREGOING DISCUSSI ON, WE ARE INCLINED TO HOLD THAT THE LD. CIT INVOKED REVISIONA L POWERS U/S 263 OF THE ACT WITHOUT ANY LEGAL OR JUSTIFIED B ASIS. THEREFORE, THE NOTICE AND IMPUGNED ORDER PASSED U/S 263 OF THE ACT SETTING ASIDE THE IMPUGNED ASSESSMENT ORDER CANNOT BE HELD AS VALID AND SUSTAINABLE IN THE EYES OF LAW AND THUS 24 ITA NO. 3104/ DEL/2013 24 WE DECLINE TO ACCEPT THE ALLEGATIONS OF THE LD. CIT (A) THAT THE A.O DID NOT NOTICE THE ISSUE, DID NOT MAKE NECE SSARY INVESTIGATIONS AND CONSEQUENTLY MAKE SUITABLE ADDIT ION IN RESPECT OF RS. 1,32,40,073/- FOR WHICH TDS WAS CLAI MED BUT NOT SHOWN IN THE PLA AS IN ANY CASE THE A.O CANNOT MADE ADDITION REGARDING THIS AMOUNT BECAUSE THIS CANNOT BE DEEMED AS INCOME OF THE ASSESSEE. THE A.O NOTICED THE ISSUE, HENCE HE ISSUED QUESTIONNAIRE ASKING DETAILS FROM THE ASSESSEE AND AFTER TAKING AND CONSIDERING THE REPLY OF THE ASSESSEE, ALLOWED THE CLAIM AND THUS IT IS NOT A CA SE F NO ENQUIRY OR INADEQUATE ENQUIRY WHICH CANNOT BE ALLEG ED AS JUST PRETENCE OF ENQUIRY. KEEPING VIEW THE PROPOSI TION LAID DOWN BY THE TRIBUNAL ORDER IN THE CASE OF NIIT [SUP RA], THE A.O REACHED TO THE SATISFACTION AFTER CONDUCTING EN QUIRY IN A PROPER MANNER WHEREIN HE PLACED QUESTIONNAIRE AND R EPLY OF THE ASSESSEE SUPPORTED BY RELEVANT DOCUMENTARY EVID ENCE ON RECORD AND AFTER CONSIDERING THE SAME. THE A.O AS A RATIONAL PERSON BEING INFORMED OF THE NUANCES OF TAX, REACHE D TO A CONCLUSION FOR FRAMING ASSESSMENT AFTER DUE APPRECI ATION OF FACTS. THUS, IN THE PRESENT CASE, WE ARE NOT IN AG REEMENT WITH THE CONCLUSION RECORDED BY THE LD. CIT(A) IN T HE 25 ITA NO. 3104/ DEL/2013 25 IMPUGNED ORDER AND IT CANNOT BE ALLEGED THAT THE OR IGINAL ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO TH E INTEREST OF THE REVENUE. THUS, WE HOLD THAT THE IMPUGNED OR DER IS VOID AB INITIO AND HAS BEEN PASSED WITHOUT ANY VALI D REASONS AND CONSEQUENTLY WE QUASH THE SAME. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAND S ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.08 .2016. SD/- SD/- (S.V. MEHROTRA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH AUGUST, 2016 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI