DALJIT SINGH GILL, NAVI MUMBAI V. ITO 22(3)(1), MUMBAI

ITA 3688/MUM/2011

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2264 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 10-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UDAYA B JAKKE
• Keywords: Opportunity of being heard; Additional evidence
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . . , , BEFORE S/SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI SANDEEP GOS AIN, JUDICIAL MEMBER ./ I.T.A S . NO. 3688 TO 3690/ MUM/ 201 1 ( / ASSESSMENT YEAR S : 200 5 - 06 TO 2007 - 08 ) SHRI DALJIT SINGH GILL, SEAWOOD ESTATE, N R I COMPLEX, SECTOR NO.48, NERUL, NAVI MUMBAI / VS. INCOME TAX OFFICER 22 (3) (1), 4 TH FLOOR, HALL, VASHI, NAVI MUMBAI ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A S . NO. 3002 TO 3004/MUM/2011 ( / ASSESSMENT YEAR S : 2005 - 06 TO 2007 - 08 ) INCOME TAX OFFICER 22 (3) (1), TOWER NO.6, 3 RD FLOOR, VASHI RLY.STATION BUILDING, ROOM NO.306, VASHI, NAVI MUMBAI. / VS. SHRI DALJIT SINGH GILL, SEAWOOD ESTATE, N R I COMPLEX, SECTOR NO.48, NERUL, NAVI MUMBAI ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN. :AAFPG1783M / A SSESSEE BY : NONE / RESPONDENT BY : SHRI UDAYA B JAKKE / DATE OF HEARING : 10.12. 2015 / DATE OF PRONOUN CEMENT : 10. 12. 2015 ITA NO . 3688 - 3689 - 3690 - 3002 - 3003 - 3004 / MUM/ 201 1 2 O R D E R PER B ENCH: THESE CROSS - APPEALS ARE DIRECTED AGAINST THE ORDER DATED 27.1.2011 PASSED BY LD. CIT(A) - 33, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 2005 - 06 TO 2007 - 08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN T HOUGH THE CASES WE R E ADJOURNED ON AN EARLIER OCCASION AT THE REQUEST OF THE ASSESSEES COUNSEL. THEREAFTER, NOTICE ISSUED W AS RETURNED BACK WITH THE POSTAL REMARK INSUFFICIENT ADDRESS. HENCE, REVENUE WAS DIRECTED TO SERVE NOTICE TO THE ASSESSEE. HOWEV ER, T HEY ALSO INFORMED THAT THE ASSESSEE WAS NOT AVAILABLE AT THE ADDRESS GIVEN IN FORM NO.36. IT WAS ALSO NOTICED THAT THE ADDRESS GIVEN BY THE ASSESSEE IN HIS APPEAL S AND THE ADDRESS GIVEN BY THE REVENUE IN THEIR APPEALS ARE DIFFERENT. UNDER THESE CIR CUMSTANCES, WE INFER THAT THE ASSESSEE HAS CHANGED HIS ADDRESS AND HE HAS FAILED TO INTIMATE THE SAME TO THE OFFICE OF THE TRIBUNAL AND REVENUE. HENCE, WE PROCEED TO DISPOSE OF THE APPEALS EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 3. WE HEARD THE L D.DR AND PERUSED THE RECORD. THE ASSESSEE IS A PROPRIETOR OF M /S DALJIT ROAD LINES ENGAGED IN THE BUSINESS AS TRANSPORT CONTRACTORS. THE ASSESSMENT FOR ALL THE YEARS UNDER CONSIDERATION WERE COMPLETED BY DISALLOWING CERTAIN PORTIONS OF EXPENSES AND ALSO B Y MAKING DISALLOWANCE U/S 40(A)(IA) OF THE ACT FOR DEDUCTION OF TAX AT SOURCE IN RESPECT OF FREIGHT CHARGES PAID. 4. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) CONFIRMED THE DISALLOWANCE OF EXPENSES AND GRANTED RELIEF IN RESPECT OF DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT ON THE REASONING THAT TDS PROVISIONS SHALL ITA NO . 3688 - 3689 - 3690 - 3002 - 3003 - 3004 / MUM/ 201 1 3 NOT APPLY IN RESPECT OF PORTION OF PAYMENT. IN DOING SO, THE LD. CIT(A) ADMITTED CERTAIN ADDITIONAL EVIDENCES AND THE SAME WAS NOT CONFRONTED TO THE AO. 5. THE ASSESSEE HAS FILED THESE APP EALS IN RESPECT OF ADDITION S CONFIRMED BY THE LD. CIT(A) AND THE REVENUE HAS FILED THESE APPEALS IN RESPECT OF RELIEF GRANTED BY THE LD.CIT(A). THE REVENUE HAS ALSO RAISED A GROUND WITH REGARD TO THE VIOLATION OF RULE 46A OF THE INCOME TAX RULES, 1962. 6. IN RESPECT OF THE EXPENSES DISALLOWED BY T HE AO, WE NOTICE THAT THE AO W AS CONSTRAINED TO DISALLOW A PORTION OF EXPENSES , SINCE THEY WERE SUPPORTED BY SELF MADE VOUCHERS. HENCE, THE LD.CIT(A) DID NOT FIND IT NECESSARY TO DISTURB THE DISALLOWANCE MAD E BY THE AO. SINCE THE EXPENSES SUPPORTED BY SELF MADE VOU CHERS ARE NOT SUSCEPTIBLE FOR VERIFICATION, WE ARE OF THE VIEW THAT THE LD.CIT(A) WAS JUSTIFIED IN CONFIRMING THE DISALLOWANCE S MADE BY THE AO IN ALL THE THREE YEARS UNDER CONSIDERATION . 7. THE NEXT ISSUE RELATES TO THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT. THE LD. CIT(A) HAS GRANTED RELIEF BY ADMITTING CERTAIN ADDITIONAL EVIDENCES AND THE SAME WERE NOT CONFRONTED WITH THE AO, RESULTING IN VIOLATION OF PROVISIONS OF RULE 46A OF THE RULES. TH E ASSESSEE HAS ALSO CONTENDED THAT THE LD.CIT(A) HAS NOT PROPERLY APPLIED THE PROVIS IO NS OF SECTION 194C OF THE ACT AS APPLICABLE TO THE LORRY OWNERS. UNDER THESE SET OF FACTS , WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. ACCORDINGLY , WE SET ASIDE THE ORDER OF LD.CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE A O WITH A DIRECTION TO EXAMINE TH E SAME AFRESH BY PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . ITA NO . 3688 - 3689 - 3690 - 3002 - 3003 - 3004 / MUM/ 201 1 4 8 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE TREATED AS PARTLY AND ALL THE APPEALS OF THE REVENUE ARE TREATED AS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 10TH DECEMBER, 2015 SD SD ( / SANDEEP GOSAIN) ( . . / B.R.BASKARAN) /JUDICIAL MEMBER /ACCOUNTANT MEMBER MUMBAI ; DATED . 10TH DEC,2015 . . ./ SRL , SR . PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI