THE ITO 6(2)(2), MUMBAI V. M/S. DECCAN EXPRESS TRANSPORT PVT. LTD, MUMBAI

ITA 3664/MUM/2008

• Counselvise Citation: 366419914 RSA 2008
• Duration Of Justice: 3 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 16-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUBAL SR
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 3664/MUM/2008 ASSESSMENT YEAR-2005-2006 INCOME TAX OFFICER , 6(2)-(2), R.NO.562, AYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. VS. M/S DECCAN EXPRESS TRANSPORT PVT. LTD., 101, KTCH MEMON TRUST, BLDG.272, NARSHI NATHA STREET, MASJID, MUMBAI-400 009. PAN: AAACD 2959G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.R. KUBAL, SR.A.R., RESPONDENT BY : SHRI K.GOPAL /SHRI JITENDRA SINGH /SHRI SATENDRA PANDEY O R D E R PER PRAMOD KUMAR: 1. THIS IS A RECALLED MATTER VIDE ORDER DATED 24 TH SEPTEMBER, 2010, THE ORDER WAS RECALLED BY OBSERVING AS FOLLOWS:- REVENUE HAS RAISED TWO GROUNDS WITH REFERENCE TO ADDITION OF RS.7,50,000/- AND RS. 1,50,000/- MADE B Y THE A.O. WITH REFERENCE TO FREIGHT CHARGES AND ROAD EXPENSES BUT DELETED BY THE CIT (A). IT WAS THE SUBMISSION THAT WHILE DISPOSING OFF THE APPEAL, THE ITAT RELIED ON THE AP PEAL FOR A.Y. 2003-04 AND 2004-05 DATED 17.04.2009 DECIDED IN ITA NO.901/MUM/2007 AND ITA NO. 3881/MUM/2007 WHEREIN WHILE CONCURRING WITH THE PART OF THE CIT (A)S ORD ER THE TRIBUNAL FURTHER CONFIRMED THE DISALLOWANCE TO THE EXTENT OF 10% OF THE TOTAL CASH PAYMENT OF FREIGHT CHARGES AN D 50% OF ROAD EXPENSES, THUS PARTLY ALLOWING THE DISALLOWANC ES IN THE CASH OF FREIGHT CHARGES AND FULLY CONFIRMING THE DI SALLOWANCE MADE BY A.O. BY REVERSING CIT (A)S ORDER. HOWEVER , WHILE FOLLOWING THE ABOVE SAID ORDERS, THE ITAT HOWEVER, HAS CONFIRMED THE CIT (A)S ORDER AND DISMISSED THE REV ENUE ITA NO.3664 /M/2008 A.Y. 2005-06 2 APPEAL IN TOTO WITHOUT RESTRICTING THE DISALLOWANCE AS WAS DONE IN EARLIER YEARS. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ORDERS IN A.Y. 2003-04 AND 20043 -05 HAVE BEEN CONTESTED BEFORE THE HONBLE BOMBAY HIGH COURT AND THE HONBLE HIGH COURT VIDE ITA NOS. 2615 AND 2616 OF 2 009 DATED 05-02-2010 HAS RESTORED THE ISSUE BACK TO THE FILE OF THE ITAT FOR THOSE ASSESSMENT YEARS DIRECTING AS UNDER: - WE ARE OF THE VIEW THAT THE INTERESTS OF JUSTICE WO ULD REQUIRE THAT AN OPPORTUNITY SHOULD BE GRANTED TO TH E ASSESSEE TO MEET THE QUERY WHICH WAS RAISED BY THE TRIBUNAL ON THE QUESTION AS TO WHETHER RECEIPTS OF THE TRUCK DRIVERS IN RESPECT OF THE PAYMENT OF FREIGHT IN CASH ARE AVAILABLE FOR VERIFICATION. FOR THE PURPO SE AFORESAID, IT WOULD BE APPROPRIATE TO REMAND THE PROCEEDINGS ONLY ON THIS ASPECT TO THE TRIBUNAL. TH E TRIBUNAL WOULD BE AT LIBERTY TO VERIFY WHETHER THE RECEIPTS ARE GENUINE AND WHETHER THEY WERE PRODUCED BY THE ASSESSEE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR IN APPEAL BEFORE THE CIT (A). IN OR DER TO ENABLE A FRESH DETERMINATION TO BE MADE ON THIS ASP ECT, THE IMPUGNED ORDER OF THE TRIBUNAL IS SET ASIDE TO THE AFORESAID EXTENT AND THE PROCEEDINGS ARE REMITTED B ACK TO THE TRIBUNAL FOR A FRESH DECISION. THE APPEAL I S DISPOSED OF. IN THE CIRCUMSTANCE, THERE SHALL BE N O ORDER AS TO COSTS. IN VIEW OF THE ABOVE THE LEARNED COUNSEL SUBMITTED THAT THIS MA CAN BE KEPT PENDING TILL THE ISSUE IS DECID ED IN EARLIER YEARS OR IN THE ALTERNATE HAS NO OBJECTION FOR RECA LLING THE ORDER FOR FRESH HEARING. WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM THE ORD ERS THERE OCCURRED MISTAKE IN DISPOSING THE REVENUE APP EAL WHILE STATING THAT THE EARLIER YEARS APPEAL WERE ALLOWED IN ASSESSEES FAVOUR WHEREAS THE FACT WAS THAT REVENUE WAS PARTLY SUCCESSFUL ON THE ISSUE OF FREIGHT EXPENSES AND FUL LY AS FAR AS DISALLOWANCE OF ROD EXPENSES ARE CONCERNED. NOW TH AT THE EARLIER YEARS ORDERS ITSELF WAS RESTORED TO THE FIL E OF THE ITAT FOR FRESH CONSIDERATION AS PER THE DIRECTIONS OF TH E HONBLE BOMBAY HIGH COURT REFERRED ABOVE, IN THE INTEREST O F JUSTICE, WE RECALL THE ORDER FOR THIS ASSESSMENT YEAR AND RE STORE THE APPEAL FOR FRESH HEARING IN ACCORDANCE WITH THE LAW AND FACTS. THE APPEAL IS ACCORDINGLY RECALLED FOR FRESH HEARIN G AND FIXED FOR HEARING ON 22 ND NOVEMBER, 2010. SINCE BOTH THE PARTIES ARE INFORMED IN THE OPEN COURT, THERE IS NO NEED TO ISSUE SEPARATE NOTICE FOR POSTING THIS APPEAL. ITA NO.3664 /M/2008 A.Y. 2005-06 3 2. VIDE OUR ORDER OF EVEN DATE, AND DEALING WITH THE S AME GRIEVANCE FOR A.Y. 2003-2004 & 2004-2005, WE HAVE REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER BY OBSERVING AS FOLLO WS:- LEARNED COUNSEL FOR THE ASSESSEE HAS FILED VOLUMINO US PAPER BOOKS CONTAINING RECEIPTS FOR FREIGHT CHARGES. HOW EVER, WHEN LEARNED COUNSELS ATTENTION WAS INVITED TO THE OBSE RVATION MADE BY THE ASSESSING OFFICER TO THE EFFECT THAT ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE IR CLAIM THAT THE PAYMENT OF FREIGHT CHARGES ARE AID TO THE TRUCK OWNERS / TRUCK DRIVERS BOOKED THROUGH THE COMMISSION AGENT IT WAS SUBMITTED THAT THE ASSESSEE HAD PRODUCED ALL THE BO OKS OF ACCOUNTS AND VOUCHERS ETC., BEFORE THE ASSESSING OF FICER THOUGH THE ASSESSING OFFICER MAY NOT HAVE EXAMINED THE SAM E. IT COULD ALSO NOT BE ESTABLISHED THAT THE LD. CIT (A) HAD TH E BENEFIT OF EXAMINING ALL THESE DOCUMENTS EITHER. LEARNED COUN SEL, HOWEVER, SUBMITS THAT HE HAS NO OBJECTION TO THE MA TTER BEING REMITTED TO THE FILE OF THE ASSESSING OFFICER AS HE CAN EXAMINE THE EVIDENCES ON MERITS. LEARNED DEPARTMENTAL REPR ESENTATIVE DOES NOT OBJECT TO THIS SUGGESTION AND STATES THAT AS LONG AS THE ASSESSING OFFICER HAS AN OPPORTUNITY TO EXAMINE THI S MATERIAL, HE HAS NO OBJECTION TO THESE EVIDENCES BEING CONSIDERE D. HE, HOWEVER, HASTENS TO ADD THAT THIS STAND SHOULD NOT BE CONSTRUED AS ADMISSIBILITY OF EXPENDITURE ON MERITS. HAVING REGARD TO THE ABOVE POSITION, AND IN DEFER ENCE TO HONBLE JURISDICTIONAL HIGH COURTS DIRECTIONS, WE DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF THE ASSES SING OFFICER FOR FRESH EXAMINATION ON MERITS. THE ENQUIRY MUST HOWE VER BE CONFINED TO BONAFIDES AND GENUINENESS OF THE EVIDEN CES, AND, UNLESS THESE ARE PROVED TO BE NOT GENUINE OR INCOMP LETE, THE ASSESSING OFFICER SHALL DELETE THE ADHOC DISALLOWAN CE. WE DIRECT SO. IN THE RESULT, AND IN MODIFICATION OF OUR ORDER DAT ED 17.04.2009, APPEALS ARE ALLOWED FOR STATISTICAL PUR POSES IN THE TERMS INDICATED ABOVE. 3. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY US. LEARNED REPRESENTATIVES HAVE ALSO FINALLY AGREED THAT OUR DIRECTIONS FOR A.Y. 2003-2004 AND 2004-2005 MUST AP PLY MUTATIS MUTANDIS ITA NO.3664 /M/2008 A.Y. 2005-06 4 FOR THIS YEAR AS WELL, AND THE DISALLOWANCE MUST BE RESTRICTED TO 10% WHICH HAS BEEN ACCEPTED IN 2003-2004 AND 2004-2005. 4. RESPECTFULLY FOLLOWING OUR ORDER OF THE EVEN DAT E IN ASSESSEES OWN CASE FOR A.Y. 2003-2004 AND 2004-2005, WE REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACC ORDANCE WITH THE LAW, BY WAY OF A SPEAKING ORDER AND AFTER GIVING A FAIR AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. WE, HOWEVER, MAKE IT CLEA R THAT THE DISALLOWANCE, EVEN IF CONFIRMED, WILL BE RESTRICTED TO 2003-2004 AND 2004-2005 AND WHICH HAS BEEN ACCEPTED BY THE REVENUE BY NOT CHALLENGING IT IN APPEAL BEFORE HONBLE HIGH COURT. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED ON THIS 30 TH DAY OF JUNE, 2011. SD/- SD/- V. DURGA RAO PRAMOD KUMAR JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 30 TH JUNE, 2011. OKK* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- VI, MUMBA I 4. COMMISSIONER OF INCOME TAX, CONCERNED 5. DEPARTMENTAL REPRESENTATIVE, BENCH D, MUMBAI TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI