ACIT, CIR- 8, Nagpur V. M/S BOMBAY GOODS TRANSPORT GARAGE, Nagpur

ITA 323/NAG/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2223 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 31-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Keywords: Business expenditure; Question of law; Non-deduction of tax
• Section: 194C

Judgement Text

1 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NOS. 323 & 325 /NAG/201 4 . ASSESSMENT YEARS : 2005 - 06 & 2007 - 08. ASSTT. COMMISSIONER OF INCOME - TAX, M/S BOMBAY GOODS TRANSPORT CIRCLE - 8, NAGPUR . VS. GARAGE, NAGPUR. PAN AABFB3874E. APPELLANT. RESPONDENT. C.O. NO.10 /NAG/2014 (IN ITA NO. 323/NAG/2014) ASSESSMENT YEAR : 200 5 - 06. M/S BOMBAY GOODS TRANSPORT ASSTT. COMMISSIONER OF INCOME - TAX GARAGE, NAGPUR. VS. CIRCLE - 8, NAGPUR. CROSS OBJECTOR. RESPONDENT. DEPARTMENT BY : SHRI NARENDRA KANE. ASSESSEE BY : SHRI K.P. DEWANI. DATE OF HEARING : 31 - 03 - 2016 DATE OF PRONOUNCEMENT : 5 TH MAY , 2016 O R D E R PER SHRI SHAMIM YAHYA, A.M. THESE APPEALS BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE EMANATE OUT OF THE ORDERS OF LEARNED CIT(APPEALS) FOR ASSESSMENT YEARS 2005 - 06 AND 2007 - 08. SINCE THE ISSUES ARE RELATED AND THE APPEALS WERE HEARD TOGETHER, THESE HAVE BEEN DISPOSED OF BY THIS COMMON ORDER. 2 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 2. GROUND RAISED IN REVENUES APPEAL IN ITA NO. 323/NAG/2014: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) WAS RIGHT IN DELETING THE ADDITION OF RS.12,45,24,237/ - MADE BY AO WITHOUT APPRECIATING THE FACT THAT FREIGHT PAID BY THE ASSESSEE CONSTIT UTE PAYMENT TO SUB - CONTRACTOR ON WHICH PROVISION OF SEC. 194C OF THE I.T. ACT IS CLEARLY ATTRACTED. GROUND S RAISED IN REVENUES APPEAL IN ITA NO. 325/NAG/2014: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(APPEALS) IS RIGHT IN DELE TING THE ADDITION OF RS.2,73,35,324/ - MADE BY THE AO.? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS CORRECT IN HOLDING THAT THE FREIGHT AMOUN T S PAID BY THE ASSESSEE DID NOT CONSTITUTE SUB CONTRACT PAYMENT WHICH DID NOT ATTRACT PROVISIONS OF SEC. 194C? GROUND RAISED BY THE ASSESSEE IN C.O. NO.10/NAG/2014 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.3,99,840/ - MADE BY THE AO OUT OF THE CLAIM OF INTEREST PAID BY THE ASSESSEE. 3. REVENUES APPEAL S : IN THE REVENUES APPEAL S COMMON ISSUES HAVE BEEN RAISED. ISSUE RELAT ING TO DELETION ON ACCOUNT OF DISALLOWANCE BY INVO KING THE PROVISIONS OF SECTION 40(A)(IA) . SINCE THE FACTS ARE COMMON, WE ARE ADJUDICATING THE ISSUE WITH FACTS AND FIGURES OF ITA NO. 325/NAG/2014. THE FACTS OF THE CASE ARE AS FOLLOWS: - RETURN OF INCOME DECLARING INCOME OF RS. 17834450/ - WAS FILED ON 31 - 10 - 2007. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPORTATION. THE A SSESSEE HAS BEEN PROVIDING TRANSPORTATION SERVICES TO MANUFACTURING COMPANIES LIKE ULTRA TECH CEMENT, MANIKGARH CEMENT, BHARAT PETROLEUM ETC. AND THESE SERVICES ARE BEING OFFERED ON CONTRACTUAL BASIS 3 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 UNDER CONTRACT OF WORK. FOR THE PURPOSES OF EXECUTING THE SAID CONTRACT, THE A SSESSEE IS USING ITS OWN TRUCKS AND ALSO USES HIRED TRUCKS THAT ARE PROCURED FROM THE MARKET AS AND WHEN REQUIRED. THE AO NOTED THAT THE A SSESSEE HAD DEBITED EXPENSES ON ACCOUNT OF FREIGHT PAYMENTS. AMOUNTING TO RS. 16.62 CRORES. DURING THE COURSE OF VERIFICATION OF THE COMPLIANCE TO THE , PROVISIONS OF TDS IT WAS ALSO NOTED BY THE AO THAT THE A SSESSEE HAD NOT MADE TDS IN RESPECT OF SAID FREIGHT PAYMENTS AMOUNTING TO RS. 16.62 CRORES. IT WAS EXPLAINE D BY THE A SSESSEE BEFORE THE AO THAT THESE FREIGHT PAYMENTS WERE INVARIABLY IN CASH AND EACH PAYMENT WAS LESS THAN RS. 20,000/ - AND THAT THEREFORE THE PROVISIONS OF TDS WERE NOT ATTRACTED. IN ITS SUPPORT THE A SSESSEE ALSO FURNISHED SOFT COPY OF THE DATA IN EXCEL WORKSHEET WITH COMPLETE DETAILS REGARDING DATE - WISE TRIPS OF VARIOUS TRUCKS, THE DESTINATION , THE AMOUNT OF BILLS AND THE PAYMENT MADE. IT WAS SUBMITTED BY THE A SSESSEE BEFORE THE AO THAT ,EACH GR IS A SEPARATE CONTRACT AND THAT EACH GR WAS LESS THAN RS.20,000/ - AND THAT THEREFORE THERE WAS NO OBLIGATION TO DEDUCT TDS U/S 194 OF THE ACT. 3. THE AO FURTHER NOTED THAT IN RESPECT OF PAYMENTS MADE BY THE ASSESSEE TO PARTIES IN WHOSE CASES TDS WAS NOT LIABLE TO BE MADE, THE ASSESSEE HAD S UBMITTED FORM 15J CONTAINING FORM 15I SUBMITTED BEFORE THE CIT - IV WITHIN THE DUE DATE. THE AO ANALYZED THE DATA PERTAINING TO FREIGHT PAYMENT AND CAME TO THE CONCLUSION THAT IN 65 CASES, AMOUNTING TO RS.20221381/ - , THE FORM 15I SUBMITTED AS PER RULE 29D OF THE RULES DID NOT PERTAIN TO THE RELEVANT FY 2006 - 07. IN VIEW OF THE ABOVE FACTS AND AFTER CONSIDERING THE RELEVANT DETAILS/DEFECTS, THE AO COMPUTED THE DISALLOWANCE MADE U /S 40(A)(IA) R.W.S. 194C AS UNDER : 4 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 TOTAL FREIGHT EXPENDITURE CLAIMED IN P&L A/C : RS. 16,62,03,244/ - LESS: FREIGHT PAYMENT BELOW RS.50,000/ - PAID TO PARTIES AS IT IS NOT LIABLE FOR TDS : RS. 2,38,25,796/ - BALANCE LIABLE FOR TDS : RS. 14,23,77,448/ - LESS: FREIGHT AMOUNT ON WHICH TDS ALREADY MADE & PAID TO GOVT. A/C : RS. 77,00,000/ - BALANCE : RS. 13,46,77,448/ - LESS: FREIGHT AMOUNT PAID TO PARTIES IN WHOSE CASE (388 CASES) ASSESSEE SUBMITTED FORM 15J : RS. 12,75,45,505/ - BALANCE : RS. 71,31,943/ - ADD: FREIGHT PAYMENT PAID TO PARTIES IN WHOSE CASES (65 IN NUMBER), FROM 151 ARE NOT RELATING TO F.Y. 2006 - 07. : RS. 2,02,21,381/ - TOTAL : RS. 2,73,35,324/ - . ACCO RDINGLY THE AO ADDED AN AMOUNT OF RS. 2,73,35,324/ - TO THE INCOME OF THE ASSESSEE U/S 40(A)(IA) OF THE I.T. ACT. 4. DURING THE COURSE OF APPELLATE P ROCEEDINGS BEFORE THE LD. CFIT(A) DETAILED SUBMISSIONS WERE FILED BY THE ASSESSEE STATING THAT THE ASSESSEE WAS NOT LIABLE TO MAKE TDS AS PER THE PROVISIONS OF SECTION 194C IN VIEW OF THE FACT THAT THERE WAS NO CONTRACTUAL PAYMENT OF THE ASSESSEES DRIVERS/TRUCK OWNERS. WITH REGARD TO THE CONTENTION OF THE AO THAT IN 65 CASES THE FORM 15I DID NOT PERTAIN TO THE RELEVANT FINANCIAL YEAR, IT WAS SUBMITTED BY THE ASSESSEE T HAT THERE COULD HAVE BEEN A CLERICAL MISTAKE IN SUBMITTING THE FORM 15I FOR THE PERIOD OTHER THAN FY 2006 - 07 AND THAT SINCE THE ASSESSEE HAD RECEIVE D A CORRECT FORM IN RESPECT OF VARIOUS PAYEES FOR FY 2006 - 07 NO TAX WAS REQUIRED TO BE DEDUCTED AT SOURCE AND 5 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 CONSEQUENTLY THE ADDITION MADE OF RS.20221381/ - MADE BY THE AO IN THIS REGARD WAS UNJUSTIFIED. 5. IN VIEW OF THE SUBMISSION MADE BY THE ASSESSEE L D. CIT(A) REMANDED THE MATTER BACK TO THE AO ALON G WITH EVIDENCES SUBMITTED FOR THE COMMENTS. THE AO VIDE LETTER DATED 08 - 08 - 2011 SUBMITTED THAT MOST OF FORM 15I PRODUCED DID NOT HAVE DATES MENTIONED ON THEM BY THE PERSONS SIGNING THE FORMS AND SINCE THE DATES ARE NOT MENTIONED IT IS DIFFICULT TO CONCLUDE WHETHER THESE FORM S WERE COLLECTED PRIOR TO MAKING PAYMENTS AS REQUIRED BY THE PROVISIONS OF SECTION 194C. THE AO FURTHER NOTED THAT IN 3 CASES FORM 15I WERE TAMPERED LIKE NON - MENTION OF REGISTRATION DETA ILS OF THE VEHICLE. IN VIEW OF THE ABOVE FACTS, THE AO STATED THAT THE ADDITION MADE IN RESPECT OF AN AMOUNT OF RS.20221381/ - IS JUSTIFIED. 6. THEREAFTER LEARNED CIT(APPEALS) REPRODUCED THE SUBMISSIONS OF THE ASSESSEE. T HE LEARNED CIT(APPEALS) HELD AS UNDER : 7. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE WRITTEN SUBMISSIONS OF THE APPELLANT. I FIND SUBSTANTIAL FORCE IN THE SUBMISSIONS MADE BY THE APPELLANT. THE APPELLANT IS IN THE BUSINESS OF TRANSPORTING GOODS FOR VARIOUS CORPORATES LI KE ULTRA TECH CEMENT, MANIKGARH CEMENT, BHARAT PETROLEUM ETC. AND FOR THIS PURPOSES OF EXECUTING THE CONTRACTS, THE APPELLANT USES ITS OWN TRUCKS AND AT TIMES ALSO HIRES TRUCKS FROM THE OPEN MARKET IN THE VICINITY OF THE VARIOUS FACTORIES FOR WHICH THE C ONTRACTUAL OBLIGATIONS HAVE TO BE EXECUTED. IT IS ALSO EVIDENT FROM THE VARIOUS FACTS, WHICH ARE AVAILABLE ON RECORD THAT THE APPELLANT HAS NOT ENTERED INTO ANY REGULAR CONTRACT OF HIRING OF TRUCKS FOR CONTINUOUS TRANSPORTATION WITH THE PERSONS WHOSE TRUCKS ARE BEING USED FOR TRANSPORTATION OF GOODS. IT IS EVIDENT FROM THE MATERIAL ON RECORD THAT ON EACH DAY THE EMPLOYEE OF THE APPELLANT OBTAINS THE TRUCK FOR TRANSPORTATION OF GOODS FROM THE LOCAL TRANSPORTER MANDI AND THE APPELLANT I ~) S NOT EVEN AWARE OF THE PERSON WHO IS THE OWNER OF THE TRUCK. IT IS THE DRIVER OF THE TRUCK WHO OFFERS TO TRANSPORT THE GOODS BY SETTLING THE CONSIDERATION ON EACH TRIP BASIS WITH THE EMPLOYEE OF THE APPELLANT. IN VIEW OF THE ABOVE FACTS, THE TRANSACTION BETWEEN THE APPELLANT AND THE PERSON OFFERING TO TRANSPORT THE GOODS FOR APPELLANT IS AN INDEPENDENT TRANSACTION AND CAN BY NO STRETCH OF IMAGINATION BE TAKEN TO BE A SUB - CONTRACT. IT IS ALSO AN UNDISPUTED FACT THAT EACH OF THE PAYMENT MADE IS LESS THAN OF A VALUE OF RS.20000/ - . 7.1 THE ISSUE THAT NEEDS TO BE EXAMINED IS WHETHER THE VEHICLE HIRED BY THE APPELLANT FOR EXECUTION OF TRANSPORT CONTRACT WITH ITS PRINCI PLES CAN BE TERMED AS A SUB - CONTRACT AND CONSEQUENTLY WHETHER THE APPELLANT OUGHT TO HAVE DEDUCTED THE TAX FROM THE PAYMENT MADE FOR SUCH VEHICLE U/S 194C(2) OF THE ACT. IT IS THE CONTENTION OF THE LD. AO THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE REQUIR ED TO BE INVOKED FOR PAYMENT MADE FOR HIRING TRUCKS AS SUCH PAYMENTS REPRESENT PAYMENT TO SUB - 6 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 CONTRACTORS AND THE APPELLANT WAS LIABLE TO DEDUCT TDS U/S. 194C(2) OF THE ACT AND THAT THE APPELLANT FAILED TO DEDUCT TDS U/S 194C(2) OF THE ACT. SECTION 194C(2) READS AS UNDER: - ANY PERSON (BEING A CONTRACTOR AND NOT BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY) RESPONSIBLE FOR PAYING ANY RESIDENT (HEREAFTER IN THE SECTION REFERRED TO AS THE SUB - CONTRACTOR) IN PURSUANCE OF A CONTRACT WITH THE SUB - CONTRACTOR FOR CARRYING OUT, OR FOR THE SUPPLY OF LABOUR FOR CARRYING OUT, THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR OR FOR SUPPLYING WHETHER WHOLLY OR PARTLY ANY LABOUR WHICH THE CONTRACTOR HAS UNDERTAKEN TO SUPPLY SHALL, AT THE TIME OF CREDIT O F SUCH SUM TO THE ACCOUNT OF THE SUB - CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT AN AMOUNT EQUAL TO ONE PERCENT OF SUCH SUM AS INCOME TAX ON INCOME COMPRISED THERE IN. 7.2 ON THE BASIS OF BARE READING OF THE ABOVE SECTION 194C(2) IT IS EVIDENT THAT THE PROVISIONS OF SECTION 40(A)(IA) WOULD BE ATTRACTED IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED. A) THE APPELLANT SHOULD BE A CONTRACTOR. B) THE APPELLANT, IN HIS CAP ACITY AS A CONTRACTOR SHOULD ENTER INTO A CONTRACT WITH A SUB CONTRACTOR FOR CARRYING OUT THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR. C) THE SUB CONTRACTOR SHOULD CARRY OUT THE WHOLE OR PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR AND TH E PAYMENT SHOULD BE MADE FOR CARRYING OUT THE WHOLE OR PART OF THE CONTRACT. 7.3 AS STATED ABOVE AND AS IS EVIDENT FROM THE MATERIAL ON RECORD, THE APPELLANT HAS NOT ENTERED INTO ANY CONTRACT FOR HIRING OF TRUCKS FOR CONTINUOUS TRANSPORTATION OF VARIOUS G OODS WITH VARIOUS PERSONS WHOSE TRUCKS ARE BEING USED FOR TRANSPORTATION OF GOODS. SUCH TRUCKS ARE PROCURED ON A DAILY BASIS FROM THE LOCAL TRANSPORT MANDI AND NO EVIDENCE OF ANY CONTRACTUAL RELATIONSHIP BETWEEN THE APPELLANT AND THE SAID TRUCK OWNERS HAS BEEN BROUGHT ON RECORD. ADMITTEDLY EACH OF THE PAYMENT MADE IS LESS THAN RS.20,000/ - AND THE APPELLANT MAKES THE PAYMENT TO VARIOUS DRIVERS/OWNERS OF THE TRUCKS ON EACH TRIP BASIS. THUS CLEARLY THE APPELLANT HAS NOT ENTERED INTO ANY CONTRACT WITH THE SAID DRIVERS/OWNERS FOR CARRYING OUT THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR. 7.4 I HAVE ALSO PERUSED THE CONTRACTS ENTERED INTO BY THE APPELLANT WITH ITS PRINCIPLES VIZ. ULTRA TECH CEMENT, MANIKGARH CEMENT, BHARAT PETROLEUM ETC. P ERUSAL OF THE SAID CONTRACTS CLEARLY SHOWS THAT THE APPELLANT IS BURDENED WITH AND SOLELY RESPONSIBLE FOR A RANGE OF ACTIONS IN PURSUANCE TO THE CONTRACT. THE APPELLANT IS REQUIRED TO COMPLY WITH ALL EXISTING RULES AND REGULATIONS RELATED TO LABOUR/TRAFFI C AND TRANSPORT. THE APPELLANT IS LIABLE FOR LOSSES, DAMAGES, THEFTS, PILFERAGE, FIRE/ ROAD ACCIDENTS, BREAKAGES, SHORTAGES TEC. THE APPELLANT IS FULLY RESPONSIBLE FOR SAFETY AND DELIVERY OF THE GOODS IN GOOD CONDITION FROM THE TIME OF COLLECTING OF GOODS FROM THE DELIVERY IT MADE TO THE CONSIGNEE. VARIOUS OTHER RESPONSIBILITIES HAVE BEEN IMPOSED 7 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 BY STRINGENT CLAUSES THAT CLEARLY SUGGEST THAT THE APPELLANT IS SOLELY RESPONSIBLE FOR ALL THE FACTS AND DEFAULTS COMMITTED BY IT AND/ OR ITS EMPLOYEES. 7.5 ON THE OTHER HAND THERE IS NOTHING ON RECORD TO SUGGEST THAT THE DRIVER/TRUCK OWNERS FROM THE APPELLANT HAS HIRED THE VEHICLES HAVE ALSO BEEN FASTENED WITH SIMILAR LIABILITIES. IT IS EVIDENT FROM THE VARIOUS DECISIONS REFERRED TO IN THE SUBMISSION OF THE APPELLANT THAT FOR THE PURPOSES OF SECTION 194C(2) WHEN A CONTRACT IS SUB LET WITH THE SAME SET OF CONDITIONS ATTACHED TO THE CONTRACTOR TO BE EXECUTED BY ANOTHER PERSON, IT CAN BE TERMED AS SUB CONTRACT. IT IS EVIDENT FROM THE FACTS ON RECORD THAT THE VA RIOUS PERSONS TO WHOM LORRY CHARGES HAVE BEEN PAID, HAVE NOT BEEN FASTENED WITH VARIOUS LIABILITIES WHICH APPELLANT IS OBLIGED TO FULFILL IN TERMS OF CONTRACTS WITH VARIOUS CLIENTS AS CONTRACTOR. ON ABOVE UNDISPUTED FACTUAL POSITION, RELATIONSHIP BETWEEN A PPELLANT BEING CONTRACTOR AND PERSON TO WHOM LORRY HIRE CHARGES ARE PAID IS NOT ESTABLISHED TO BE SUB CONTRACTOR. THE LD AO HAS TREATED TRANSACTIONS BETWEEN THE APPELLANT AND THE TRUCK OWNER AS A SUB - CONTRACT, WHICH IS ERRONEOUS IN THE GIVEN SET OF FACTS AND CIRCUMSTANCES, AS SUCH TRUCK OWNERS DO NOT SHARE RISKS OF THE APPELLANT INVOLVED IN TRANSPORTATION OF GOODS. FROM THE RECORD OR THE FINDINGS OF THE LD. AO, NOWHERE IT IS BORNE OUT THAT THERE WAS ANY KIND OF WRITTEN OR ORAL CONTRACT WITH THE PRINCIPALS BY SUCH OUTSIDE TRUCK/LORRY OWNERS THAT THEY WILL SHARE THE RISK AND RESPONSIBILITY WITH THE APPELLANT. FURTHER, AS IS EVIDENT FROM THE FACTS, AT MOST OF THE TIMES THE TRUCK OWNERS MAY NOT EVEN BE AWARE OF THE PRINCIPAL FOR WHICH THE APPELLANT IS EXECUTING TRANSPORT WORK AND THEREFORE IT CAN BE CONCLUDED THAT THE TRUCK OWNERS HAVE NOT ENTERED INTO ANY CONTRACT EITHER WITH THE APPELLANT OR THE PRINCIPALS FOR WHICH THE APPELLANT IS EXECUTING THE WORK. IN VIEW OF THE ABOVE FACTS IT IS DIFFICULT TO HOLD THAT TH E PAYMENT MADE FOR HIRING VEHICLES IS A SUB - CONTRACT PAYMENT. THUS IT CAN BE CONCLUDED THAT THE PAYMENT MADE FOR HIRING VEHICLES DOES NOT FALL IN THE CATEGORY OF SUB - CONTRACT. ALSO, IT IS NOT PROVED THAT ANY FREIGHT CHARGES WERE PAID TO THEM IN PURSUANCE O F A CONTRACT FOR SPECIFIC PERIOD, QUANTITY OR PRICE IN THE PRESENT CASE AND CLEARLY THEREFORE, THE APPELLANT WAS NOT LIABLE TO DEDUCT TAX U/S. 194C FROM THE PAYMENTS MADE TO THE TRANSPORTERS. THE ABOVE VIEW IS SUPPORTED BY SEVERAL JUDICIAL PRONOUNCEMENTS W HEREIN IT HAS BEEN HELD ON IDENTICAL FACTS THAT THE PAYMENT MADE BY THE TRANSPORTERS TO HIRED VEHICLE OWNERS ARE NOT HIT BY PROVISION OF SECTION 194C. THESE JUDGMENTS ARE DISCUSSED IN THE NEXT PARA OF THIS APPELLATE ORDER. 7. THE LEARNED CIT(APPEALS) FURTHER REFERRED TO FOLLOWING CASE LAWS HOLDING THAT T HE SAME WERE ON IDENTICAL FACTS: (1) ITAT, VISHAKHAPATNAM BENCH DECISION IN THE CASE OF MYTHRI TRANSPORT CORPORATION VS. ACIT 1 ITR (TRIB) 290. (2) ITAT, MUMBAI BENCH IN THE CASE OF BHAIL BULK CARRIERS, MUMBAI IN ITA NO. 3536/MUM/2011 DT. 7 TH MARCH, 2012. 8 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 (3) ITAT DELHI BENCH DECISION IN THE CASE OF GURPREET SINGH IN ITA NO. 4790/DEL/2011 DT.24 - 01 - 2013 . (4) ITAT AHMEDABAD BENCH DECISION IN THE CASE OF RAJENDRA MADHUBHAI GOHIL IN ITA NO. 683/AHD/2013 DT. 31 - 10 - 2013. (5) ITAT MUMBAI DECISION IN THE CASE OF RAJIV KISHOR LAL PATODIA IN ITA NO. 8967/MUM/2010 DT. 23 - 05 - 2013. (6) ITAT MUMBAI BENCH DECISION IN THE CASE OF HEMANT M. BHANUSHALI IN ITA NO. 2336/MUM/2011 DT. 13 TH A PRIL, 2012 . REFERRING TO THE ABOVE CASE LAWS, LEARNED CIT(APPE A LS) CONCLUDED AS UN DER : 9. ON PERUSAL OF THE ABOVE FINDINGS AND APPLYING THE SAME TO THE FACTS OF APPELLANTS CASE, IT IS CLEARLY ESTABLISHED THAT THE APPELLANTS CASE IS NOT COVERED BY THE PROVISIONS OF SECTION 194C(2) OF THE ACT. IN THE CASE OF THE APPELLANT, IT IS NOT DISPUT ED THAT THE CONTRACT FOR CARRYING OUT THE WORK HAS BEEN ENTERED INTO BETWEEN THE APPELLANT AND VARIOUS OTHERS PARTIES AND IT IS THE APPELLANT ALONE WHO IS RESPONSIBLE FOR CARRYING OUT THE CONTRACT WORK AS PER THE TERMS OF AGREEMENT ENTERED INTO WITH ITS PR INCIPALS. THE LD. AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SUGGEST THAT THERE WAS ANY SUB - CONTRACT, EITHER WRITTEN OR ORAL, WITH THE OUTSIDE TRUCK/ LORRY OWNERS WHEREBY THE RISK AND RESPONSIBILITIES, WHICH ARE ASSOCIATED WITH A CONTRACT, HAS ALSO BEEN PASSED ON TO THESE OUTSIDE PARTIES. 9.1 THE PROVISIONS OF SECTION 194C(2) WOULD NOT BE APPLICABLE AS THE RISK AND RESPONSIBILITY OF FULFILLING OF VARIOUS TERMS AND CONDITIONS OF THE CONTRACT REMAIN WITH THE APPELLANT. THE APPELLANT HAS MERELY TAKEN ON HIRE THE VEHICLES AND THE SAME CANNO T BE SAID TO BE A SUB - CONTRACT AND THEREFORE THE PROVISIONS OF SECTION 194C(2) AS APPLIED BY THE LD. AO ARE NOT APPLICABLE IN THE CASE OF THE APPELLANT. THE CASE OF SUB CONTRACT CAN BE MADE OUT ONLY WHEN THE APPELLANT OF - ROADS A DEFINED PART OF THE CONTRAC T WORK TO THE SAID LORRY/ CONTRACT OWNERS BY WAY OF A WRITTEN OR ORAL WHEREIN THE RISK AND RESPONSIBILITY ARE ALSO TRANSFERRED. 9.2 IN VIEW OF THE ABOVE FACTS AND THE CLEAR FINDINGS IN MYTHRI TRANSPORT CORPORATION V. ASST. CIT (SUPRA) AND VARIOUS O THER JUDICIAL PRONOUNCEMENTS REFERRED TO AND REPRODUCED ABOVE, IT CAN BE CONCLUDED THAT THE PAYMENTS MADE FOR HIRING VEHICLES DOES NOT FALL IN THE CATEGORY OF SUB CONTRACT WITH THE DRIVERS/TRUCK OWNERS AND IN VIEW OF THE SAME IT IS HELD THAT THE PROVISION S OF SECTION 40(A)(IA) RWS 194C(2) ARE NOT ATTRACTED AND THE ADDITION MADE BY THE LD. AO OF RS.2,73,35,324/ - IS UNJUSTIFIED AND UNSUSTAINABLE. 9 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 8. FINALLY THE LEARNED CIT(APPEALS) CONCLUDED AS UNDER : IN VIEW OF THE ABOVE TOTALITY OF FACTS IT CAN BE CONCLUDED THAT THE PAYMENTS MADE FOR HIRING VEHICLES DOES NOT FALL IN THE CATEGORY OF SUB - CONTRACT WITH THE DRIVERS/TRUCK OWNERS AND IN VIEW OF THE SAME IT IS HELD THAT THE PROVISIONS OF SECTION 40(A)(IA) R.W.S. 194C ARE NOT ATTRACTED AND THE ADDITION MADE BY THE LD. AO OF RS.2,73,35,324/ - IS HEREBY DELETED. 9. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 10. THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE IN THIS REGARD IS AS UNDER : A) THE ASSESSEE IS ENGAGED IN ACTIVITY O F TRANSPORTATION OF GOODS. THE ASSESSEE HAS UNDERTAKEN CONTRACTS FOR VARIOUS CORPORATE ENTITIES NAMELY ULTRATECH CEMENT, MANIKGARH CEMENT AND BHARAT PETROLEUM ETC. FOR TRANSPORTING OF GOODS OF THE SAID COMPANIES. B) THE ASSESSEE FOR RENDERING THE SERVICES HAS ENTERED INTO AGREEMENTS AND AFORESAID CONTRACTS PROVIDE FOR VARIOUS STIPULATIONS WHICH ARE TO BE STRICTLY ADHERED BY ASSESSEE BEING TERMS AND CONDITIONS OF CONTRACTS. THE PAYMENT RECEIVED BY ASSESSEE ARE CONTRACT PAYMENTS AS ENVISAGED IN SECTION 194C (1) OF I.T. ACT 1961. CONTRACTS OF TRANSPORTATIONS AY 2005 - 06 CONTRACTS OF TRANSPORTATIONS AY 2007 - 08 C) ON CERTAIN OCCASIONS ASSESSEE HAS TO HIRE TRUCKS FROM OPEN MARKET IN THE VICINITY OF VARIOUS FACTORIES LOCATED FOR TRANSPORTATION OF GOODS. THE ASSESSEE HAS NO REGULAR CONTRACT OF HIRING OF TRUCKS FOR CONTINUOUS TRANSPORTATION OF VARIOUS GOODS AND IN FACT ASSESSEE HAS NO ORAL OR WRITTEN 10 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 AGREEMENT FOR HIRING TRUCKS FOR TRANSPORTATION OF GOODS TO PERFORM CONTRACTUAL OBLIGATION UNDERTAKEN BY VIRTUE OF VARIOUS AGREEMENTS WITH CORPORATE CLIENTS. D) THE ASSESSEE ALONE UNDER ITS CONTROL AND SUPERVISION HAS EXECUTED WHOLE OF CONTRACT. THE INDIVIDUAL LORRY OWNERS HAVE NOT CARRIED OUT ANY PART OF THE WORK UNDERTAKEN BY ASSESSEE. THE PAYMENTS MADE BY ASSESSEE TO VARIOUS DRIVERS OF TRUCKS ARE ON EACH TRIP BASIS. IN VIEW OF ABOVE FACTS PAYMENT MADE BY ASSESSEE FOR HIRING O F TRUCKS IS NOT IN THE NATURE OF PAYMENT MADE TO SUB - CONTRACTORS ON WHICH THERE IS OBLIGATION TO DEDUCT TAX AT SOURCE U/S. 194C(2). E) THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THE OTHER TRUCK OWNERS INVOLVED THEMSELVES IN CARRYING OUT ANY PART OF W ORK UNDERTAKEN BY THE ASSESSEE BY SPENDING THEIR TIME, ENERGY AND BY TAKING THE RISKS ASSOCIATED WITH THE MAIN CONTRACT WORK. IN ABSENCE OF ABOVE CHARACTERISTICS, IT CANNOT BE SAID THAT PAYMENT MADE FOR HIRED VEHICLES WOULD FALL IN THE CATEGORY OF PAYMENT S MADE TO SUB - CONTRACTOR. RELIANCE ON: 1. HON'BLE BOMBAY HIGH COURT ORDER IN ITA NO.1219 OF 2012 IN THE CASE OF M/S. BHAIL BULK CARRIERS VIDE ORDER DATED 12/11/2014. 2. (2012) 50 SOT 0622 BHAIL BULK CARRIERS VS. ITO 3. (2010) 1 ITR 0290 (VISAKHAPATNAM) MYTHRI T RANSPORT CORPN. VS. ACIT 4. (2012) 53 SOT 0230 KULDEEP KUMAR SHARMA VS. ITO 5. ITAT ORDER IN ITA NO.4666/MUM/2012 IN THE CASE OF JASWANT P. PATEL (HUF) VIDE ORDER DATED 19/11/2013. 6. ITAT ORDER IN ITA NO.2153/0EL/2011 I N THE CASE OF SHRI SUJAN SINGH VIDE ORDER DATED 28/11/2013. 11 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 7. ITAT ORDER IN ITA NO.38/AGRA/2013 IN THE CASE OF VICKY ROADWAYS VIDE ORDER DATED 31/10/2013. 8. ITAT ORDER IN ITA NO.3593/MUM/201 0 IN THE CASE OF MR. ARSHAD ABOO MOHIDEEN VIDE ORDER DATED 29/04/2011. 9. ITAT ORDER IN ITA NO.306/AGRA/2009 IN THE CASE OF SHRI VIPIN ARORA VIDE ORDER DATED 17/06/2011. 10. ITAT ORDER IN ITA NO.6506/MUM/201 0 IN THE CASE OF SHRI JANARDHAN V. SAWANT FOR ASSTT. YEAR 2007 - 08 VIDE ORDER DATED 28/03/2012. 11. (2010) 45 OTR 0146 (KO L .) MRS. K AVITA CHUG VS. ITO 12. (2010) 322 ITR 0594 (PUNJAB & HARYANA) CIT VS. UNITED RICE LAND LTD. F) PROVISION OF SECTION 194C HAVE BEEN AMENDED BY FINANCE ACT (2) 2004. AS PER AMENDMENT PAYMENT MADE FOR CONTRACT LIABLE FOR DEDUCTION AT SOURCE IF AGGREGATE PAYMENT EXCEEDS TO RS 50000/ - IN YEAR W.E.F 1/10/2004 THUS ASSESSEE IS NOT LIABLE TO DEDUCT THE TAX AT SOURCE IN RESPECT OF FREIGHT PAYMENT MADE AT LESS THAN RS.200001 - EVEN THOUGH IN AGGREGATE IF THEY EXCEED RS 500001 - IN YEAR PRIOR TO 01/10/2004. AO. ERRED IN MAKING ADDITION OF RS.7,99,67,633/ - FOR PAYMENT MADE PRIOR TO 1/10/2004. CIT(A) RIGHTLY HELD AT PARA 7.4 THAT ADDITION IS UNJUSTIFIED AND UNSUSTAINABLE. RELIANCE: I) ITAT ORDER IN ITA NO 76/NAG/2009 IN THE CASE OF M/S. BERALIA ROAD TRANSPORT VIDE ORDER DATED 14/0712009. G) THE ASSESSEE HAS OBTAINED THE FORM 15 - I FROM VARIOUS PERSONS TO WHOM THE TRANSPORTATION CHARGES ARE PAID SO THAT NO TAX IS LIABLE TO BE DEDUCTED AT SOURCE FROM SUCH PARTIES. 12 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 H) THE AO HAS NOT CONDUCTED ANY ENQUIRY OR MADE ANY VERIFICATION FROM THE PARTIES FROM WHOM FORM 15 - I WERE OBTAINED SUBMITTED BY ASSESSEE IN ASSESSMENT PROCEEDINGS. I) THE PAYMENT MADE BY ASSESSEE ARE NOT TO SUB - CONTRACTORS AND THUS THERE IS NO OBLIGATION TO DEDUCT THE TAX AT SOURCE. THE ASSESSEE HAS OBTAINED THE FORM 15 - 1 AS MATTER OF ABUNDANT CAUTION . IN THE ABSENCE OF ANY ADVERSE EVIDENCE ON RECORD TO REJECT FORM 15 - 1 OBTAINED BY ASSESSEE THERE IS NO OBLIGATION TO DEDUCTION TAX AT SOURCE AND CONSEQUENTLY NO DISALLOWANCE ULS 40(A)(IA) OF I.T. ACT 1961 IS LIABLE TO BE MADE AT THE HANDS OF ASSESSEE. R ELIANCE: I) ITAT ORDER IN ITA NO.254NIZAG/2012 IN THE CASE OF POTRU MURALI KRISHNA VIDE ORDER DATED 07/11/2012. II) ITAT ORDER IN ITA NO.800/MUM/2010 IN THE CASE OF M/S MUMBAI ROAD CARRIERS DATED 30109/2011. ] III) ITAT ORDER IN ITA NO.7537/MUM/2010 IN THE CASE OF SHRI RAMESH LILADHAR DATED20107/2012. J) PROVISIONS OF SEC. 40(A) (IA) ARE INAPPLICABLE TO AMOUNT PAID DURING THE YEAR TOWARDS FREIGHT CHARGES AND CLAIMED AS BUSINESS EXPENDITURE. ACTUAL AMOUNT PAID DURING THE YEAR CANNOT BE SUBJECTED TO D ISALLOWANCE U/S. 40(A)(IA) OF I.T. ACT, 1961. RELIANCE ON: 1. SLP CC NO(S).8068/2014 (SUPREME COURT) CIT VS. M/S. VECTOR SHIPPING SERVICES (PVT.) LTD. DATED 02/07/2014. 2. (2013) 357 ITR 642(AII.) CIT VS. VECTOR SHIPPING SERVICES (P) LTD. 3. ITAT ORDER IN ITA NO 465/NAG/2014 IN THE CASE OF M/S. ACHARYA BROTHERS VIDE ORDER DATED 28/12/2015. 4. ITAT MUMBAI IN ITA NO 1919/MUM/2013 IN THE CASE OF 13 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 M/S. HALANI SHIPPING PVT. LTD. VIDE ORDER DATED 13/02/2015. 5. ITAT ORDER IN ITA NO 1871/MUM/2013 IN TH E CASE OF M/S. ARCADIA SHARE & STOCK BROKERS PVT. LTD. VIDE ORDER DATED 22/12/2014. 6. ITAT'S ORDER IN ITA NO 13/MUM/2013IN THE CASE OF SMT.ZEENAT N.SHAIK VIDE ORDER DATED 17/09/2014. 7. ITAT ORDER IN ITA NO 18/DEL/20131N THE CASE OF SHRI ANOOP KHANDELWAL VIDE ORDER DATED 17/10/2014. K) PROVISIONS OF SEC. 194C (6) INTRODUCED ARE OF CLARIFICATIONS NATURE AND ARE APPLICABLE TO PENDING PROCEEDINGS. CONSIDERING THE FACT THAT DETAILS OF PAN ARE AVAILABLE ON RECORD THERE IS NO OBLIGATION TO DED UCT TAX AT SOURCE AND CONSEQUENT NO DISALLOWANCE U / S 40(A)(IA) OF I.T. ACT 1961 SUSTAINABLE. RELIANCE ON: 1) 319 ITR 306 (SC) CIT VS. ALOM EXTRUSIONS LTD. 2) 224 ITR 677 (SC) ALLIED MOTORS (P) LTD. ETC VS. CIT 3) ITAT ORDER IN ITA NO.63/HYD/2013 IN THE CASE OF ASSOCIATED ROADWAYS (P) LTD. VIDE ORDER DATED 20/05/2013. ] L) IN THE CASE OF ASSESSEE DISALLOWANCE/ADDITION MADE IS UNSUSTAINABLE CONSIDERING THE CONCEPT OF REAL INCOME. THE GENUINENESS OF PAYMENT MADE AND EXPENDITURE INCURRED IS NOT IN DISPUTE. THE EXPENDITURE IS INCURRED TO DERIVE THE GROSS RECEIPTS FROM TRANSPORTA TION. DISALLOWANCE OF EXPENDITURE RESULT IN ASSESSMENT OF GROSS RECEIPTS IN THE HANDS OF ASSESSEE. IT IS THE INCOME WHICH CAN CHARGED TO TAX AND NOT GROSS RECEIPTS. RELIANCE ON: 1) 240 ITR 355 (S C ) UNITED COMMERCIAL BANK VS. CIT . 14 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 11. APART FROM THE ABOVE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT IDENTICAL ISSUES HAVE BEEN DECIDED BY THE ITAT, NAGPUR BENCH ALSO IN THE CASE OF CHADDHA TRANSPORT IN ITA NO. 333/NAG/2014 VIDE ORDER DATED 25 TH FEBRUARY, 2016. 12. PER CONTRA LEARNED D.R. RELIED UPON THE ORDERS OF THE AO. HOWEVER, HE DID NOT DISPUTE THE PROPOSITION THAT IDENTICAL ISSUE WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE BY THIS TRIBUNAL IN THE SAID CASE REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE. 13. WE HAVE CAREFULLY CONSIDERE D THE SUBMISSIONS AND PERUSED THE RECORDS. WE FIND THAT WE HAVE ADJUDICATED SIMILAR ISSUE IN THE CASE OF CHADDHA TRANSPORT (SUPRA). WE MAY GAINFULLY REFER TO OUR DECISION IN THE SAID CASE WHICH READS AS UNDER : 12. WE HAVE CAREFULLY CONSIDERED THE SUBMI SSIONS AND PERUSED THE RECORDS. FIRST WE DEAL WITH THE ISSUE ON THE GROUND THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE NOT ATTRACTED INASMUCH AS THE ENTIRE FREIGHT EXPENDITURE IS PAID AND NOTHING IS PAYABLE AS ON 31 - 03 - 2007. THE FACTS IN THIS REGARD ARE UNDISPUTED. THE ASSESSEES PLEA IS THAT THE ENTIRE FREIGHT AMOUNT WAS PAID AND NOTHING IS PAYABLE AS ON 31 - 03 - 2007, AND THAT THIS IS DULY REFLECTED BY A PERUSAL OF THE BALANCE SHEET/PROFIT & LOSS ACCOUNT WHERE NO AMOUNT IS PAYABLE AS ON 31 - 03 - 2007. IN THIS REGARD LEARNED COUNSEL OF THE ASSESSEE HAS PLACED RELIANCE UPON CIT VS. VECTOR SHIPPING SERVICES (P) LTD. 357 ITR 642 (ALL.). IN THE SAID CASE HONBLE ALLAHABAD HIGH COURT HAS UPHELD THE FINDING THAT WHEN THE EXPENSES INCURRED BY THE ASSESSEE IS TOTALLY P AID AND NOT REMAINED PAYABLE AS AT THE END OF THE RELEVANT ACCOUNTING PERIOD, PROVISIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE. THE HIONBLE HIGH COURT IN PARA 10 OF THE ORDER HAS CONCLUDED AS UNDER : IT IS TO BE NOTED THAT FOR DISALLOWING EXPENSES FRO M BUSINESS AND PROVISION ON THE GROUND THAT TDS HAS NOT BEEN DEDUCTED, THE AMOUNT SHOULD BE PAYABLE AND NOT WHICH HAS BEEN PAID BY THE END OF THE YEAR. 13. REVENUES APPEAL AGAINST THE ABOVE SAID DECISION OF THE HONBLE ALLAHABAD HIGH COURT WAS DISMISSED BY THE HONBLE APEX COURT IN CC 15 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 NO. 8068/2014 VIDE ORDER DATED 02 - 07 - 2014. THE HONBLE APEX COURT HAS HELD AS UNDER : HEARD MR. MUKUL ROHATGI, LEARNED ATTORNEY GENERAL, FOR THE PETITIONER. DELAY IN FILING AND REFILLING SPECIAL LEAVE PETITION IS CONDONED. SPECIAL LEAVE PETITION IS DISMISSED. WE ARE ALSO AWARE THAT THERE ARE CERTAIN OTHER HONBLE HIGH COURT DECISIONS WHEREIN THIS PROPOSITION HAS NOT BEEN UPHELD THAT PROVISIONS OF SECTION 40(A)(IA) ARE ATTRACTED ONLY WHEN THE AMOUNT IS PAYABLE. HOWEVER, WE NOTE THAT THERE IS NO JURISDICTIONAL HIGH COURT DECISION ON THIS ISSUE. IN SUCH A SITUATION WE NOW HAVE A HONBLE ALLAHABAD HIGH COURT DECISION WHICH IS IN FAVOUR OF THE ASSESSEE. REVEN UE DEPARTMENTS PETITION FOR SPECIAL LEAVE TO APPEAL HAS BEEN DISMISSED BY THE HONBLE APEX COURT BY CONDONING THE DELAY IN FILING THE LEAVE PETITION. IN SUCH A SITUATION, IN OUR CONSIDERED OPINION, THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS . VEGETABLE PRODUCTS LTD. 188 ITR 192 HAS TO BE FOLLOWED. IN THE SAID DECISION THE HONBLE APEX COURT HAS EXPOUNDED THAT IN CASE THERE ARE TWO VIEWS POSSIBLE, THE VIEW IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED. ACCORDINGLY IN ABSENCE OF ANY JURISDICTI ONAL HIGH COURT DECISION, WE RESPECTFULLY FOLLOW THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES (P) LTD. AS ABOVE. ACCORDINGLY SINCE NO AMOUNT OF THE FREIGHT WAS UNPAID OR WAS PAYABLE AS ON 31 - 03 - 2007 WE HOLD THAT THE PROVISIONS OF SECTION 40(A)(IA) ARE NOT ATTRACTED AND IN THIS VIEW OF THE MATTER WE ARE OF THE OPINION THAT REVENUES APPEAL IS LIABLE TO BE DISMISSED. 14. NOW WE DEAL WITH THE ISSUE ON THE GROUND THAT ASSESSEE WAS NOT LIABLE TO DEDUCT TDS ON PAYMENT AS T HAT THE ASSESSEES CASE IS NOT COVERED BY THE PROVISIONS OF SECTION 194C(2) OF THE I.T. ACT INASMUCH AS THERE WAS NO CONTRACT WITH THE TRUCK/LORRY OWNERS. IN THIS REGARD THE ASSESSEE HAS CONTENDED THAT THERE WAS NO REGULAR CONTRACT OF HIRING OF THE TRUCKS FOR CONTINUE TRANSPORTATION OF VARIOUS GOODS WITH THE TRUCKS/LORRY OWNERS. THAT THERE WAS NO ORAL OR WRITTEN AGREEMENT FOR HIRING TRUCKS FOR TRANSPORTATION OF GOODS TO PERFORM A CONTRACTUAL OBLIGATION BY VIRTUE OF VARIOUS AGREEMENTS WITH CORPORATE CLIENTS . THAT THE ASSESSEE ALONE IS LIABLE AND UNDER ITS CONTROL AND SUPERVISION HAS EXECUTED THE WHOLE OF CONTRACTS ON BEHALF OF VARIOUS CORPORATE ENTITIES, NAMELY, AMBUJA CEMENT, MANIGARH CEMENT AND MARATHA CEMENT ETC. HENCE IT IS THE PLEA OF THE ASSESSEE THAT HIRING OF TRUCKS IN THIS CASE IS NOT IN THE NATURE OF PAYMENT MADE TO SUB CONTRACTORS ON WHICH THERE IS OBLIGATION TO DEDUCT THE TAX AT SOURCE U/S 94C OF THE I.T. ACT. IN THIS REGARD LEARNED COUNSEL OF THE ASSESSEES CONTENTION IS THAT THE ISSUE IS SQUAREL Y COVERED IN FAVOUR OF 16 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 THE ASSESSEE BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN ITA NO. 1219 OF 2012 IN THE CASE OF M/S BHAIL BULK CARRIERS VIDE ORDER DATED 12 - 11 - 2014. IN THIS CASE HONBLE BOMBAY HIGH COURT HAS UPHELD THE DECISION OF MUMBAI ITAT IN THE CASE OF BHAIL BULK CARRIERS VS. ITO 50 SOT 0622. IN THIS CASE THE ITAT HAS DISCUSSED THE ISSUE IN PARA 8 & 8.1 OF ITS ORDER AS UNDER : 8. WE HAVE HEARD THE PARTIES AT LENGTH AND ALSO GONE THROUGH THE FINDINGS OF THE AUTHORITIES BELOW AND THE CASE LAW S AS HAVE BEEN REFERRED IN THE APPELLATE ORDER AS WELL AS RELIED UPON BY THE LEARNED COUNCIL. THE RELEVANT FACTS FOR ADJUDICATION OF THE ISSUE ARE THAT THE APPELLANT IS CARRYING OUT THE BUSINESS OF TRANSPORTATION OF OIL THROUGH TANKERS. IT ENTERED INTO A C ONTRACT WITH VARIOUS COMPANIES (HERE MAINLY BPCL) FOR TRANSPORTING THE OILS TO VARIOUS DESTINATIONS AS PER THE AGREEMENT ENTERED INTO BY THE SAID COMPANY. THE APPELLANT WAS SOLELY RESPONSIBLE FOR EXECUTING THE CONTRACT ON BEHALF OF ITS PRINCIPAL FOR FULFIL LING ITS TRANSPORTATION COMMITMENT, THE APPELLANT BESIDES USING ITS OWN TANKERS WAS ALSO HIRING THE TANKERS FROM OUTSIDE PARTIES AS AND WHEN REQUIRED. IN SUCH A CASE OF HIRING FROM OUTSIDE, THE RESPONSIBILITY OF SUCCESSFUL COMPLETION OF TRANSPORTATION WORK RESTED UPON THE APPELLANT. FROM THE RECORD OR THE FINDINGS OF THE AUTHORITIES BELOW NO WHERE IT IS BORNE OUT THAT THERE WAS ANY KIND OF WRITTEN OR ORAL CONTRACT WITH THE PRINCIPALS BY SUCH OUTSIDE TANK OWNERS THAT THEY WILL SHARE THE RISK AND RESPONSIBILI TY WITH THE APPELLANT. 8.1 AT THIS STAGE, IT IS NOT DISPUTE THAT THE DEPARTMENTS CASE IS THAT IN THE PRESENT CASE PROVISIONS OF SECTION 194C(1) ARE APPLICABLE AND NOT SECTION 194C(2). ONCE IT IS HELD THAT IT IS A CASE OF 194C(1) THEY IT WOULD BE SENT TH AT THIS SECTION APPLIES TO ANY PAYMENT MADE TO A PERSON FOR CARRYING OUT ANY WORK IN PURSUANCE OF A CONTRACT BETWEEN THE CONTRACTOR AND THE PERSON MAKING THE PAYMENT. IF THE CONDITION OF CARRYING OUT ANY WORK IN PURSUANCE OF A CONTRACT IS NOT FULFILLED T HEY THE PROVISIONS OF THIS SECTION WILL NOT BE APPLICABLE AT ALL. HERE IN THIS CASE, THE CONTRACT FOR CARRYING OUT THE WORK WAS BETWEEN THE BPCL AND THE APPELLANT. THE APPELLANT ALONG HAD RISK AND RESPONSIBILITY FOR CARRYING OUT THE CONTRACT WORK AS PER TH E AGREEMENT ENTERED INTO BY IT WITH ITS PRINCIPAL I.E. BPCL. THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THERE WAS ANY CONTRACT OR SUB - CONTRACT WHETHER WRITTEN OR ORAL WITH THE OUTSIDE TANK OWNERS AND THE APPELLANT, WHEREBY THE RISK AND RESPONSIBILITY W HICH IS ASSOCIATED WITH A CONTRACT HAS ALSO BEEN PASSED ON TO THESE OUTSIDE PARTIES. ONCE THE CIT(APPEALS) HAS ACCEPTED THE FACT THAT THE OUTSIDE TANK OWNERS DO NOT HAD ANY RESPONSIBILITY OR LIABILITY TOWARDS THE PRINCIPAL, THEN IT CANNOT BE HELD THAT THE SE OUTSIDE PARTIES WERE PRIVITY TO THE CONTRACT BETWEEN THE APPELLANT AND ITS PRINCIPAL THUS THE PAYMENT MADE TO THE OUTSIDE PARTIES DO NOT COME OR FALL WITHIN THE PURVIEW OF SECTION 194C, AS THE CARRYING OUT ANY WORK INDICATES DOING SOMETHING TO CONDUCT THE WORK IN PURSUANCE OF CONTRACT AND HERE IN THIS CASE, IT WAS SOLELY BETWEEN APPELLANT AND ITS PRINCIPAL. 17 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 THEREAFTER THE TRIBUNAL HAD REFERRED THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. POMPUHAR SHIPPING CORPO RATION LTD. AND CONCLUDED AS UNDER : THUS IN VIEW OF THE FINDINGS GIVEN ABOVE AND THE LAW LAID DOWN BY THE HONBLE HIGH COURT AS ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE APPELLANT WAS NOT LIABLE TO DEDUCT TDS U/S 194C(1) FOR PAYMENTS MADE TO THE OUTSIDE PARTIES AND CONSEQUENTLY THE DISALLOWANCE MADE U/S 40(A)(IA) BY THE AUTHORITIES BELOW ARE DELETED. THE APPELLANT THUS GETS RELIEF OF 56,03,210/ - . THIS ORDER OF THE ITAT WAS SUBJECT MATTER OF APPEAL BEFORE THE HONBLE JURISDICTIONAL HIGH COURT IN I NCOME TAX APPEAL NO. 1219 OF 2012 VIDE ORDER DATED 12 TH NOV., 2014. THE HONBLE HIGH COURT HELD AS UNDER : 2. THE APPEAL AROSE OUT OF THE ORDER OF THE FIRST APPELLATE AUTHORITY DATED 15 TH FEBRUARY 2011. THE ONLY ISSUE WAS DIS - ALLOWANCE OF RS.56,03,210/ - U NDER SECTION 40(A)(IA) FOR THE FAILURE TO DEDUCT TAX AT SOURCE UNDER SECTION 194C OF THE INCOME TAX ACT,1961. THE TRIBUNAL FOUND THAT THIS DIS - ALLOWANCE WAS NOT PERMISSIBLE BECAUSE THE ASSESSEE A PARTNERSHIP FIRM IS IN THE BUSINESS OF TRANSPORT. IT IS A TR ANSPORT CONTACTOR. IT WAS AWARDED A CONTRACT OF OIL TRANSPORTATION TO VARIOUS LOCATIONS OF BHARAT PETROLEUM CORPORATION LTD., AND OTHER COMPANIES. THE ASSESSEE RECEIVED DURING THE YEAR IN QUESTION RS.2,83,06,986/ - TOWARDS FREIGHT CHARGES. THE CONTRACT DOCU MENT SHOWS THE ASSESSEE ALONG WAS RESPONSIBLE FOR TRANSPORTATION OF OIL FROM ONE DESTINATION TO OTHER. THE CONTRACTUAL LIABILITY WAS DISCHARGED BY TRANSPORTING OIL MOSTLY THROUGH THE ASSESSEES OWN TANKERS AND ALSO FROM SOME HIRED TANKERS BELONGING TO OUTS IDE PARTIES. AN AMOUNT OF RS/.1,79,03,198/ - WAS PAID TO VARIOUS PARTIES AND THE ASSESSEE FURNISHED THE DETAILS. THE AMOUNTS PAID AND SUMMARY THEREOF IS NOTED AND WHAT THE ASSESSING OFFICER, THE FIRST APPELLATE AUTHORITY AND TRIBUNAL FOND THAT TDS (TAX DEDU CTED AT A SOURCE) HAD NOT BEEN REMITTED OR THERE IS NO DEDUCTION IN CASES OF THIRD PARTIES. THE TRIBUNAL NOTED THE RIVAL CONTENTIONS AND RENDERED A FINDING OF FACT BY REFERRING TO THE LEGAL PROVISIONS THAT THE RISK AND RESPONSIBILITY FOR CARRYING OUT THE C ONTRACT WORK WAS SOLELY THAT OF THE ASSESSEE. THERE IS NO MATERIAL TO SUGGEST THAT THERE WAS ANY CONTRACT OF SUB - CONTRACT, WHETHER WRITTEN OR ORAL WITH THE OUTSIDE TANKER OWNERS AND THE ASSESSEE. IT IS IN THESE CIRCUMSTANCES AND WHEN THESE OUTSIDE TANKER O WNERS DO NOT HAVE ANY RESPONSIBILITY OR LIABILITY THE BHARAT PETROLEUM CORPORATION LTD. OR OTHER PRINCIPALS THEN, IN THE ABSENCE OF ANY PRIVITY, THE OBLIGATION TO DEDUCT THE TAX AT SOURCE WAS NOT THAT OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, WE DO NOT FIND THAT THE APPEAL RAISES ANY SUBSTANTIAL QUESTION OF LAW, THE FINDINGS CANNOT BE TERMED AS PERVERSE OR VITIATED BY ERROR OF LAW APPARENT ON THE FACE OF THE RECORD. THE APPEAL IS DISMISSED. 15. NOW WE EXAMINE THE PRESENT CASE ON THE ANVIL OF ABOVE JURISDICTIONAL HIGH COURT DECISION. IN THIS CASE ALSO THE ASSESSEE IS A TRANSPORT CONTRACTOR. THE ASSESSEE WAS AWARDED CONTRACT OF TRANSPORTATION TO VARIOUS LOCATIONS OF AMBUJA CEMENT, MANIGARH CEMENT, MARATHA 18 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 CEMENT ETC. THE ASSESS EE RECEIVED FREIGHT CHARGES FROM THESE COMPANIES. THE CONTRACT WITH THESE COMPANIES SHOWS THAT THE ASSESSEE WAS RESPONSIBLE FOR TRANSPORTATION OF CEMENT FROM ONE DESTINATION TO OTHER. THE CONTRACTUAL LIABILITY WAS DISCHARGED BY TRANSPORTING CEMENT THROUGH ASSESSEE S OWN TRUCKS AND ALSO FROM HIRED TRUCKS BELONGING TO OUTSIDE PARTIES. IT IS CLEAR FROM THE FACTS ON RECORD THAT THE RISK AND RESPONSIBILITY FOR CARRYING OUT THE CONTRACT WORK WAS SOLELY THAT OF THE ASSESSEE. THERE IS NO MATERIAL TO SUGGEST THAT TH ERE WAS ANY CONTRACT OR SUB CONTRACT WRITTEN OR ORAL WITH THE OUTSIDE TRUCK OWNERS AND THE ASSESSEE. IT IS IN THESE CIRCUMSTANCES THAT WHEN THESE OUTSIDE TRUCK OWNERS DO NOT HAVE ANY RESPONSIBILITY OR LIABILITY TOWARDS THE AMBUJA CEMENT OR OTHER PRI NCIPAL S THEN IN ABSENCE OF ANY PRIVITY THE OBLIGATION TO DEDUCT THE TAX AT SOURCE WAS NOT THAT OF THE ASSESSEE. 16. IN VIEW OF THE AFORESAID DISCUSSION, WE FIND THAT THE FACTS OF THE CASE ARE FULLY IN CONSONANCE WITH THE DECISION OF HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF BHAIL BULK CARRIERS (SUPRA). ACCORDINGLY WE HOLD THAT THE LEARNED CIT(APPEALS)S ORDER DOES NOT HAVE ANY INFIRMITY AND ACCORDINGLY WE UPHOLD THE SAME. HENCE REVENUES APPEAL IS LIABLE TO BE DISMISSED ON THIS PLANK AS WELL. 17. SINCE WE HAVE ALREADY HELD THAT THE PROVISIONS OF SECTION 40(A)(IA) WERE NOT ATTRACTED INASMUCH AS NO AMOUNT WAS PAYABLE AS ON THE CLOSE OF THE YEAR AS WELL AS IN ABSENCE OF ANY CONTRACTS, THERE WAS NO OBLIGATION ON THE PART OF THE ASSESSEE TO DEDUCT THE TAX AT SO URCE, WE FIND THAT ADJUDICATION ON THE OTHER PLANKS OF ARGUMENT OF THE LEARNED COUNSEL OF THE ASSESSEE IS NOW ONLY OF ACADEMIC SIGNIFICANCE. HENCE WE ARE NOT ENGAGING INTO THE SAME. 18. IN THE RESULT THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. 14. WE FIND THAT THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE ONE DEALT WITH BY THIS TRIBUNAL IN THE CASE OF CHADDHA TRANSPORT ABOVE. ON THE SAME BASIS WE ALSO HOLD IN THIS CASE ALSO TO THE EXTENT FREIGHT AMOUNTS HAVE BEEN PAID UP TO THE CLOSE OF THE FI NANCIAL YEAR THE PAYMENTS DO NOT ATTRACT DISALLOWANCE U/S 40(A)(IA) ON THE ANVIL OF THE DECISION OF VECTOR SHIPPING SERVICES P. LTD. (SUPRA). SIMILARLY ON THE SAME REASONING AND CASE LAWS AS REFERRED ABOVE INCLUDING THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF BHAIL BULK CARRIERS (SUPRA), WE HOLD THAT THERE IS NO MATERIAL ON RECORD TO SUGGEST THAT THERE 19 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 WAS ANY CONTRACT OR SUB CONTRACT WRITTEN OR ORAL WITH THE OUTSIDE TRUCK OWNERS AND THE ASSESSEE. HENCE FOLLOWING THE AFORESAID PRECEDE NT, WE UPHOLD THE LEARNED CIT(APPEALS) VIEW THAT WHEN THESE OUTSIDE TRUCK OWNERS DO NOT HAVE ANY RESPONSIBILITY OR LIABILITY TOWARDS THE MANUFACTURING COMPANIES LIKE ULTRA T ECH CEMENT, BHARAT PETROLEUM, ETC. THEN IN ABSENCE OF ANY PRIVITY THE OBLIGATION TO DEDUCT THE TAX AT SOURCE WAS NOT THAT OF THE ASSESSEE. 15. FURTHER MORE SINCE WE HAVE ALREADY HELD THAT PROVISIONS OF SECTION 40(A)(IA) WERE NOT ATTRACTED ON THE REASONING STATED ABOVE, WE FIND THAT ADJUDICATION ON THE OTHER PLANKS OF ARGUMENT OF THE LEARNED COUNSEL OF THE ASSESSEE IS ONLY OF ACADEMIC SIGNIFICANCE. HENCE WE ARE NOT ENGAGING INTO THE SAME. 16. IN THE RESULT, THESE APPEALS FILED BY THE REVENUE STAND DISMISSED. 17. CROSS OBJECTION OF THE ASSESSEE: THE ASSESSEE HAS RAISED THE F OLLOWING GROUND IN THE CROSS OBJECTION: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.3,99,840/ - MADE BY THE AO OUT OF THE CLAIM OF INTEREST PAID BY THE ASSESSEE. 18. ON THIS ISSUE THE AO M ADE THE DISALLOWANCE HOLDING AS UNDER : DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AR WAS ASKED TO EXPLAIN THE POSITION OF INTEREST FREE LOANS GIVEN TO VARIOUS PARTIES, MOSTLY SISTER CONCERNS. IT IS ALSO A MATTER OF RECORD THAT THE ASSESSEE HAD TAK EN SECURED LOANS OF RS.6,23,16,238/ - AND PAID INTEREST OF RS.9,68,372/ - . THE ARS SUBMISSIONS VIDE LETTER DATED 18 - 07 - 2007 ON THIS ISSUE STATED HAT THERE IS ALSO AN AMOUNT OF RS.33,32,000/ - GIVEN TO GREAT ROADWAYS PV. LTD. WHICH IS IN THE NATURE OF TEMPOR ARY HELP TO ITS SISTER CONCERN. AS PER THE ARS OWN ADMISSION, THERE IS AN INTEREST FREE LOAN TO M/S GREAT ROADWAYS PVT. LTD., THOUGH ITS NOMENCLATURE MAY BE OF 20 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 TEMPORARY HELP. THEREFORE, THE BORROWED CAPITAL WAS ADVANCED AS INTEREST FREE LOAN. THUS, TH E AMOUNT OF INTEREST @ 12% AMOUNTING TO RS.3,99,840/ - (12% P.A. OF RS.33,32,000) CORRESPONDING TO THE AMOUNT OF LOAN TO M/S GREAT ROADWAYS PVT. LTD. IS BEING DISALLOWED OUT OF THE TOTAL INTEREST PAID. 19. UPON ASSESSEES APPEAL, LEARNED CIT(APPEALS) HELD AS UNDER : I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSI ONS OF THE APPELLANT. THE MAIN ARGUMENT OF THE APPELLANT IS THAT IT HAD ACCESS TO CAPITAL OF PARTNERS AMOUNTING TO RS.253.54 LACS AND ALSO HAD INTEREST FREE FUNDS AMOUNTING TO RS. 13.25 LACS. HOWEVER DURING THE COURSE OF ASSESSMENT PROCEEDIN G S OR APPELLATE PROCEEDINGS NO EVIDENCE HAS BEEN FURNISHED BY THE APPELLANT TO ESTABLISH THE AVAILABILITY OF SUCH FUNDS. ALSO IT IS NOT CLEAR AS TO WHETHER THE PARTNERS CAPITAL WAS AVAILABLE FREE OF INTEREST OR INTEREST WAS BEING PAID TO THE PARTNERS IN RESPECT OF THE SAME. THE ONUS IS ON THE APPELLANT TO BACK ITS CLAIM WITH EVIDENCES WHENEVER ANY CLAIM OF DEDUCTION IS MADE. THE APPELLANT HAS FAILED TO DO SO. IN VIEW OF THE ABOVE FACTS, I DEC LINE TO INTERFERE WITH THE FINDINGS OF THE LD. AO. THE ADDITION MADE OF RS.3,99,840/ - IS HEREBY CONFIRMED. 20. AGAINST THE ABOVE ORDER, THE ASSESSEE FILED THE CROSS OBJECTION BEFORE THE TRIBUNAL. 21. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS . LEARNED COUNSEL OF THE ASSESSEES SUBMISSION IN THIS REGARD ARE SUMMARIZED AS UNDER : A) A.O HAS NOT BROUGHT ANY NEXUS OF THE BORROWED FUNDS HAVING BEEN UTILIZED FOR THE PURPOSE OF GIVING ADVANCE TO M/S. GREAT ROADWAYS PVT. LTD SO AS TO MAKE DISALLOWANCE OF INTEREST. B. THE ADVANCE GIVEN TO M/S. GREAT ROADWAYS PVT. LTD IS ALSO IN COURSE OF BUSIN ESS ACTIVITY AS THE AFORESAID SISTER CONCERN CARRIES ON BUSINESS ACTIVITY SIMILAR TO THAT OF ASSESSEE. C THE ASSESSEE FIRM HAS THE CAPITAL OF PARTNER TO TUNE OF R S.2,53,54,991/ - AND HAS ALSO INTEREST FREE FUND WITH ASSESSEE FIRM AT RS.13,25,OOO/ - . THUS A DVANCE GIVEN TO AFORESAID SISTER CONCERN STAND REASONABLY EXPLAINED WITH REFERENCE TO OWN FUND OF ASSESSEE. NO DISALLOWANCE AS MADE BY A.O AND CONFIRMED BY CIT (A) IS SUSTAINABLE. 21 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 RELIANCE ON: I) 366 ITR 0505 (BOM.) CIT VIS. HDFC BANK LTD. II) 313 ITR 0340( BOM.) CIT V / S. RELIANCE UTILITIES & P OWER LTD. 22. PER CONTRA LEARNED D.R. RELIED UPON THE ORDER OF THE AO. 23. WE FIND THAT THE EMPHASIS OF THE LEARNED COUNSEL OF THE ASSESSEE IS ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RELIANCE UTILITY A ND POWER LTD. (SUPRA) AND CIT VS. HDFC BANK LTD. (SUPRA) FOR THE PROPOSITION THAT WHEN ASSESSEES OWN FUNDS AND OTHER NON INTEREST BEARING FUNDS WERE MORE THAN INVESTMENT IN TAX FREE ADVANCES, IT WOULD HAVE TO PRESUME THAT INVESTMENTS WERE MADE BY T H E ASSESSEE OUT OF INTEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE. IN THE PRESENT CASE WE FIND THAT THOUGH THE ASSESSEE HAS TAKEN SUCH PLEA BEFORE THE LEARNED CIT(APPEALS), THE LEARNED CIT(APPEALS) HAS REJECTED THE SAME ON THE GROUND THAT THE ASSESSEES SUBMISSIONS WERE NO T SUPPORTED BY COGENT EVIDENCES I N OUR CONSIDERED OPINION SINCE NOW THE LEARNED COUNSEL OF THE ASSESSEE IS SUBMITTING THAT THE ASSESSEES BALANCE SHEET AND OTHER MATERIALS SUFFICIENTLY PROVED AVAILABILITY OF INTEREST FREE FUNDS, WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO EXAMINE THE ISSUE AFRESH ON THE ANVIL OF AFORESAID JURISDICTIONAL HIGH COURT DECISION CITED. 24 . IN THE RESULT, THE CROSS OBJECTION STANDS ALLOWED FOR STATISTICAL PURPOSES. 25. IN THE RESULT, THE APPEALS FILED BY THE REVENUE STAND DISMISSED AND THE CROSS OBJECTION BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF MAY, 2016. SD/ - SD/ - (MUKUL K. SHRAW AT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. NAGPUR, DATED: 5 TH MAY , 2016. 22 ITA NOS. 323 & 325/NAG/2014 CO NO. 10/NAG/2014 COPY FORWARDED TO : 1. M/S BOMBAY GOODS TRANSPORT GARAGE, 5 MAK AZAD SCHOO L BUILDING, GANDHIBAGH, NAGPUR - 440 002. 2. A.C.I.T., CIRCLE - 8 , NAGPUR. 3. C.I.T. , NAGPUR. 4. CIT(APPEALS), - II, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.