ITO ,WD-28(3)(3), NAVI MUMBAI V. SOPAN DHONDIBHAU PATADE, NAVI MUMBAI

ITA 3778/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0799 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 11-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Business income; Business expenditure; Corroborative evidences
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'F' BENCH, MUMBAI SHRI JOGINDER SINGH (JUDICIAL MEMBER) & BEFORE SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) ITA NO.3778/MUM/2015 (ASSESSMENT YEAR: 2010-11) ITO, WD.28(3)(3), NAVI MUMBAI VS. SHRI SOPAN DHONDIBHAU PATADE SHOP NO.A/66, MAHAVIR MARKET, NEAR ONION POTATO MARKET, SECTOR NO.18, VASHI NAVI MUMBAI-400 705 PAN AKYPP2070R APPELLANT RESPONDENT APPELLANT BY: SHRI B.S. BIST RESPONDENT BY: SHRI K SHIVRAM DATE OF HEARING: 11.05.2017 DATE OF ORDER: 19.05.2017 O R D E R PER ASHWANI TANEJA, A.M. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LD.CIT(A)-XXXII, MUMBAI DATED 20 TH MARCH, 2015 AGAINST THE ASSESSMENT ORDER U/S 143(3) DATED 30 TH MARCH, 2013 FOR AY 2010-11 ON THE FOLLOWING GROUNDS:- (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITIONS U/S 4 0(A)(IA) ON ACCOUNT OF FREIGHT CHARGES PAID. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) HAS ERRED IN TREATING THE ASSESSEE AS TRA NSPORT 2 SOPAN D PATADE BROKER / AGENT AS AGAINST TRANSPORT CONTRACTOR AS M ENTIONED BY THE AUDITOR IN HIS AUDIT REPORT. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN APPRECIATING THE FACT THAT RES JUDICATA IS NOT APPLICABLE AS EACH ASSESSMENT YEAR IS A SEPARAT E PROCEEDINGS AS HELD BY HONBLE APEX COURT IN VARIOU S JUDGMENTS. (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD.CIT(A) HAS ERRED IN APPRECIATING THE FACT THAT D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS N OT SUBMITTED DETAILS OF PAN AND THE NAMES OF THE PARTI ES TO WHOM THE FREIGHT CHARGES PAID. (5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. CIT(A) HAS ERRED IN ALLOWING EXPENDITURE IN RESPEC T OF FREIGHT CHARGES FOR THE PERIOD 01/10/2009 TO 31/03/2010 INV OLVING TOTAL AMOUNT OF RS.3,20,16,550/- AS PROVISIONS OF S ECTION 194C(7) ARE INTERCONNECTED AND ASSESSEE HAS NOT COM PLIED WITH THE PROVISIONS OF SECTION 194C(7) OF THE I.T. ACT. 2. THE SOLITARY ISSUE INVOLVED IN THESE GROUNDS IS WHE THER THE ASSESSEE WAS LIABLE TO DEDUCT TDS U/S 194C AND IN CASE ASSES SEE FAILED IN DEDUCTING THE TAX AT SOURCE, THEN WHETHER THE AMOUNT OF FREIG HT CHARGES PAID BY THE ASSESSEE WERE DISALLOWABLE U/S 40(A)(IA) OF THE INC OME-TAX ACT, 1961. 3. THE BRIEF FACTS AS CULLED OUT FROM THE ORDERS PASSE D BY THE LOWER AUTHORITIES ARE THAT ASSESSEE IS AN INDIVIDUAL AND DURING THE YEAR HE DERIVED INCOME FROM BUSINESS AND OTHER SOURCES. THE ASSESS EE IS A PROPRIETARY UNIT OF M/S BALAJI ROADWAYS AND THE SAID PROPRIETORSHIP CONCERN WAS STATED TO BE ENGAGED IN THE BUSINESS OF TRANSPORT. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTED BY THE AO THAT ASSESSEE H AD PAID FREIGHT CHARGES AGGREGATING TO RS.6,37,00,780/- UPON WHICH, TDS HAD NOT BEEN DEDUCTED. THEREFORE, THIS AMOUNT WAS DISALLOWED BY THE AO. B EING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) AND MADE DETAILE D SUBMISSIONS TO ARGUE THAT ASSESSEE WAS NOT LIABLE TO DEDUCT TDS U/S 194C , SINCE ASSESSEE WAS NOT 3 SOPAN D PATADE A TRANSPORT OPERATOR, BUT WAS MERELY A TRANSPORT AG ENT AND FURTHER, PERMANENT ACCOUNT NUMBERS WERE PROVIDED IN THE CASE OF ALL THE PAYEES WHEREVER THE AGGREGATE AMOUNT PAID EXCEEDED A SUM O F RS.50,000. THEREFORE, THE IMPUGNED PAYMENTS WERE NOT LIABLE FO R DEDUCTION OF TAX AT SOURCE AS PER PROVISIONS OF SECTION 194C(6) & 194C( 7) OF THE ACT. LD. CIT(A) REVERSED THE ACTION OF THE AO AND DELETED THE DISAL LOWANCE MADE BY THE AO BY MAKING FOLLOWING OBSERVATIONS:- 4.10. I HAVE GONE THROUGH ALL THE WRITTEN SUBMISSIO NS VERY CAREFULLY AND ALSO PERUSED THE ASSESSMENT ORDER AND THE VARIOUS DOCUMENTS AND EVIDENCES AND EXPLANATIONS FURNISHED BY THE APPELLANT. I FIND MERIT IN THE CONTENTION MADE BY T HE APPELLANT THAT TDS IS NOT DEDUCTIBLE IN RESPECT OF THE FREIGH T CHARGES PAID ON THE REASONS AND FINDINGS GIVEN AS UNDER: - 4.11. THERE IS NO DENIAL OF THE FACT THAT THE BUSIN ESS CARRIED ON BY THE APPELLANT IS THAT OF TRANSPORT AGENT/BROKER AND NOT OF A TRANSPORT OPERATOR. THIS FACT BRINGER MORE SUBSTANC E TO THE CASE WHEN IT WAS POINTED OUT BY THE AR THAT THE APPELLAN T DOES NOT POSSESS/OWN ANY TRUCK FOR PLYING OR CARRYING ON THE BUSINESS OF TRANSPORT OPERATOR AND THE MAIN SOURCE OF INCOME WA S COMMISSION INCOME WHICH WAS CARRIED ON BY THE APPEL LANT FOR SEVERAL YEARS. 4.12. THE NATURE OF BUSINESS ACTIVITIES CARRIED OR, BY THE ASSESSEE FOR ASSESSMENT YEAR UNDER CONSIDERATION WAS PRIMARI LY THAT OF AN AGENT. THE GROSS FREIGHT CHARGES PAID BY THE CONSIG NORS TO THE ASSESSEE WERE A KIND OF REIMBURSEMENT OF SIMILAR PA YMENTS MADE BY THE ASSESSEE TO THE OWNERS OF THE TRANSPORT VEHICLES ENGAGED. THE DEDUCTION OF TAX AT SOURCE BY THE CONS IGNORS FROM THE FREIGHT CHARGES PAID TO THE ASSESSEE BY IT COUL D NOT LEAD TO THE CONCLUSION THAT THE FREIGHT CHARGES CONSTITUTED THE ASSESSEE- FIRM'S GROSS BUSINESS RECEIPTS OR TRADING TURNOVER. SIMILARLY, THE ROUTING OF FREIGHT CHARGES PAID BY THE CONSIGNORS A ND PAYMENTS MADE BY THE ASSESSEE TO THE VEHICLE OWNERS THROUGH ITS BANK ACCOUNT WOULD NOT CONSTITUTE THE RECEIPTS AND EXPEN SES AS PART OF ANY TRADING TRANSACTION OF THE ASSESSEE. THE PAY MENTS MADE TO THE VEHICLE OWNERS, THEREFORE, WOULD NOT CONSTIT UTE ASSESSEE'S 4 SOPAN D PATADE BUSINESS EXPENDITURE FOR THE PURPOSE OF COMPUTATION OF PROFIT AND GAINS OF ANY BUSINESS CARRIED ON BY THE ASSESSE E IN ACCORDANCE WITH THE PROVISION OF INCOME-TAX ACT. 4.13. ONCE IT IS PROVED THAT THE FREIGHT PAYMENTS W OULD NOT CONSTITUTE THE APPELLANTS BUSINESS EXPENDITURE FOR THE PURPOSE OF COMPUTATION OF PROFIT AND GAINS OF THE BUSINESS THE REFORE THERE WILL BE NO APPLICABILITY OF SECTION 40(A)(IA) OF TH E ACT AS THIS SECTION IS APPLICABLE ONLY FOR SUMS WHICH ARE OTHER WISE ALLOWABLE UNDER SECTION 30 TO 38 OF THE ACT WHILE COMPUTING T HE INCOME CHARGEABLE UNDER THE HEAD 'PROFITS OF BUSINESS OR P ROFESSION'. 4.14. THE FACT THAT AN EARLIER ASSESSMENT, I.E. FOR A. Y. 2008-09 WAS COMPLETED U/S. 143 (3) OF THE ACT BY THE SAME A SSESSING OFFICER MR. K A PARYANI PROVED THAT THERE WAS NOTHI NG ON RECORD FOR HIM TO DEVIATE FROM FOLLOWING THE SAME PRINCIPL E OF CONSISTENCY FOR THE YEAR TINDER CONSIDERATION, I.E. , FOR A.Y. 2010- 11. ON SCRUTINIZING OF THE SAID ASSESSMENT ORDER FO R A.Y. 2008-09, THE AO HAD COME TO THE CONCLUSION THAT THE APPELLAN T WAS NOT LIABLE TO DEDUCT TDS ON FREIGHT CHARGES PAID AND AS SUCH PROVISIONS OF SECTION 40 (A)(IA) WAS NOT INVOKED. 4.15. ON THE BASIS OF ABOVE SUBMISSIONS, IT CAN BE SEEN THAT THE AO HAS HIMSELF IN A PREVIOUS ASSESSMENT ORDER PERTA INING TO A.Y. 2008-09 PASSED ORDER U/S. 143 (3) OF THE ACT AND OP INED THAT NO TDS ON FREIGHT CHARGES IS LIABLE TO BE DEDUCTED SO AS TO CALL FOR ANY ADDITIONS ON THAT ACCOUNT AND ON THE OTHER HAND , THE SAME AO WHILE PASSING THE ASSESSMENT ORDER FOR THE YEAR UNDER CONSIDERATION HAS ASSESSED TO THE CONTRARY AND CHAN GED HIS STANCE WITHOUT ASSIGNING ANY SPECIFIC REASONS AND G ONE ON TO MAKE ADDITIONS ON ACCOUNT OF NON-DEDUCTION OF TDS O N FREIGHT CHARGES WHICH IS DEVOID OF ANY FACTS AND EVIDENTIAR Y PROOFS 4.16 1 AM SATISFIED WITH THE VIEW POINTS AS DISCUSS ED ABOVE AND THAT THE APPELLANT BEING TRANSPORT AGENT AND ON THE BASIS OF MY OBSERVATIONS AND LEGAL POSITION MORE SPECIFICALL Y EXPLAINED IN THE PRECEDING PARAS 4.10 TO 4.15, IT IS AMPLY CLEAR THAT NO TDS IS LIABLE TO BE DEDUCTED ON THE TOTAL FREIGHT CHARGES OF RS.6,37,00,780/- SO AS TO CALL FOR ADDITIONS OF FRE IGHT CHARGES. 4.17. I THINK THE APPELLANT HAS A VERY STRONG CASE BASED ON MATERIAL FACTS AND EXPLANATIONS AS ABOVE, I WOULD F URTHER LIKE TO PONDER ON THE FACT THAT THE ACT HAS GIVEN A MORE LI BERAL VIEW AND AMENDED THE SECTION 194C TO SUIT THE TRANSPORT FRAT ERNITY BEING 5 SOPAN D PATADE AN UNORGANIZED SECTOR AT LARGE, WHICH IS DISCUSSED IN THE FOREGOING PARAS OF MINE. 4.18. THE AR DURING THE COURSE OF ASSESSMENT PROCEE DINGS SUBMITTED A LETTER DATED 19-03-2013 WHICH IS REPROD UCED ABOVE STATES THAT FOR THE PURPOSE OF TDS DEDUCTIBILITY IN THE CASE OF TRANSPORT BUSINESS FOR THE YEAR UNDER CONSIDERATION HAS TWO PARTS TO IT, ONE PERTAINING TO THE PERIOD 01-04-200 9 TO 30-09- 2009 AND OTHER FROM 01-10-2009 TO 31-03-2010. 4.19. FOR THE PERIOD 01-04-2009 TO 30-09-2009, THE TOTAL FREIGHT CHARGES WERE RS.3,16,84,130/- AND THE SAME IS COVER ED TINDER SECOND PROVISO TO CLAUSE (1) OF SUB SECTION (3) SEC 194C OF THE ACT, WHICH WAS INSERTED IN THE FINANCE ACT 2005 WE F 1.6 .2005, WHICH STATES AS UNDER: PROVIDED FUN HER THAT NO DEDUCTION SHALL BE MADE UN DER SUB- SECTION (2), FROM THE AMOUNT OF ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID DURING THE PREVIOUS YEAR TO THE ACCOUNT OF THE SUB-CONTRACTOR DURING THE COURSE OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGES, ON PRODUCTION OF A DECL ARATION TO THE PERSON CONCERNED PAYING OR CREDITING SUCH SUM, IN T HE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND WITH IN SUCH TIME AS MAY BE PRESCRIBED, IF SUCH SUB-CONTRACTOR IS AN INDIVIDUAL WHO HAS NOT OWNED MORE THAN TWO GOODS CARRIAGES AT ANY TIME DURING THE PREVIOUS YEAR. THE AFORESAID FACTS HAVE BEEN VERIFIED BY THE AUDIT OR AND FORMS PART OF THE AUDIT REPORT AND IS ON RECORDS. THE AUD IT REPORT STATES THE FACT THAT THE APPELLANT HAS BEEN COVERED UNDER THE SECOND PROVISO TO CLAUSE (1) OF THE SUB SECTION (3) OF SECTION 194C TILL 30-09-2009. THE AFORESAID FACT WAS AGAIN REITERATED IN THE SUBM ISSION MADE DATED 19-03-2013 BEFORE THE ASSESSING OFFICER REPRO DUCED BY ME AGAIN. 4.20. ALTERNATIVELY, DURING THE COURSE OF ASSESSMEN T PROCEEDINGS THE AR HAS ATTACHED LIST OF DETAILS OF FREIGHT CHAR GES PAID FROM 01-04-2009 TO 30-09-2009 AMOUNTING TO RS.3,16,84,13 0/- MONTH WISE, TRUCK WISE AND PAN WISE STATING THAT SINCE TH E AGGREGATE CONTRACT AMOUNT PAID TO INDIVIDUAL TRANSPORTER HAD NOT CROSSED PS.50,000/- THEN AS PER FIRST PROVISO TO CLAUSE (1) OF THE SUB SECTION (3) OF SECTION 194C NO LIABILITY TO DEDUCT TDS ARISES. 6 SOPAN D PATADE 4.21. FOR THE PERIOD 01-10-2009 TO 31-03-2010, THE TOTAL FREIGHT CHARGES WERE RS.3,20,16,650/- AND THE FINANCE ACT H AS AMENDED SECTION 194C (6) FROM 1/1012009 WHICH STATES AS UND ER: NO DEDUCTION SHALL BE MADE FROM ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID DURING THE PREVIOUS Y EAR TO THE ACCOUNT OF A CONTRACTOR DURING THE COURSE OF BUSINE SS OF PLYING, HIRING OR LEASING GOODS CARRIAGES, ON FURNISHING OF HIS PERMANENT ACCOUNT NUMBER, TO THE PERSON PAYING OR CREDITING S UCH SUM. THE AFORESAID FACT WAS AGAIN REITERATED IN THE SUBM ISSION MADE DATED 19-03-20!3 BEFORE THE ASSESSING OFFICER. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE AR HAS ATTACHED LIST OF DETAILS OF FREIGHT CHARGES PAID FROM 01-10-2009 TO 31-03-2010 AMOUNTING TO RS.3,20,16,650/- MONTH WISE, TRUCK WISE AND PAN WISE AND THE AO HAS AGREED TO THE FACT THAT DETAILS SUBMITTED BY THE APPELLANT HAD THE PAN NUMBERS QUOTED TOO BUT HAS MADE CONTRAD ICTORY STATEMENTS AS CAN BE SEEN FROM CLAUSE 2.4 OF THE AS SESSMENT ORDER AS UNDER: - I) ASSESSEE HAS NOT QUOTED PAN AGAINST ALL ENTRIES. II) ASSESSEE HAS NOT PRODUCED BOOKS OF ACCOUNT. III) ASSESSEE HAS MENTIONED ONLY PAN AGAINST PAYMEN T MADE BUT NOT GIVEN NAME OF CONTRACTOR TO WHOM PAYMENT IS MADE...... 4.22. ON PERUSING THE ASSESSMENT ORDER IN TOTO, THE AR POINTED OUT THAT DURING THE YEAR UNDER CONSIDERATION, THERE WAS ONLY ON SOLIDATORY TRANSACTION WITH ONE TRUCK OWNER WITH PA N NO. AVOPB0529J HAVING THREE TRUCKS AND THE TOTAL AMOUNT WAS RS.98,380/-. I HAVE DECIDED AND COME TO THE CONCLUS ION THAT NO ADDITION IS CALLED FOR IN RESPECT OF NON-DEDUCTIBIL ITY OF TDS ON FREIGHT CHARGES PAID AS INVOKING OF SECTION 40(A)(I A) IS NOT APPLICABLE IN THE CASE OF TRANSPORT BROKER/AGENT AN D IS IN LINE WITH THE PREVIOUS ASSESSMENT ORDER PASSED BY THE AO FOR A.Y. 2008-09. 4.23. IN VIEW OF THE ABOVE, I DIRECT THE AO TO DELE TE THE SAID ADDITION ON ACCOUNT OF FREIGHT CHARGES PAID OF RS.6 ,37,00,780/- ACCORDINGLY. 4. BEING AGGRIEVED, REVENUE IS IN APPEAL BEFORE THE TR IBUNAL. DURING THE COURSE OF HEARING, LD. DR CONTESTED THE ORDER PASSE D BY THE LD. CIT(A). IT WAS SUBMITTED THAT ASSESSEE IS TRANSPORT OPERATOR A ND NOT MERELY A TRANSPORT AGENT. OUR ATTENTION WAS DRAWN ON THE TAX AUDIT RE PORT OF THE ASSESSEE 7 SOPAN D PATADE WHEREIN IT WAS STATED THAT ASSESSEE IS ENGAGED IN T HE BUSINESS OF TRANSPORT CONTRACTORS AND SUPPLY OF LABOURERS. FURTHER, OUR ATTENTION HAS BEEN DRAWN ON THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE WHEREI N HAMALI CHARGES (I.E. LOADING AND UNLOADING CHARGES) AGGREGATING TO RSA.1 1,04,426 HAVE BEEN PAID DURING THE YEAR INDICATING THAT ASSESSEE HIMSELF WA S ENGAGED IN THE BUSINESS OF TRANSPORT. FURTHER, IT HAS BEEN STATED THAT ASS ESSEE HAS NEITHER PRODUCED THE BOOKS OF ACCOUNT BEFORE THE LOWER AUTHORITIES N OR DID GIVE PROPER DETAILS TO SHOW FROM WHERE IT COULD BE SEEN THAT WHETHER AG GREGATE PAYMENT MADE TO EACH PERSON DID NOT EXCEED RS.50,000 AND WHEREVE R IT EXCEEDED RS.50,000 WHETHER PAN HAS BEEN OBTAINED IN SUCH CASES AND GIV EN TO THE AO OR NOT. THOUGH CERTAIN CHARTS WERE PRODUCED BY THE ASSESSEE BEFORE THE AO, BUT IN ABSENCE OF LEDGER ACCOUNT OF THE PAYEES AND PROPER BOOKS OF ACCOUNT, THESE FACTS COULD NOT BE VERIFIED AS TO WHETHER THE PAYME NT MADE IN AGGREGATE EXCEEDED THE THRESHOLD LIMIT OF RS.50,000 OR NOT. IT WAS THUS SUBMITTED THAT FAIRLY SPEAKING, ALL THESE ISSUES SHOULD GO BACK TO THE FILE OF THE AO WHERE ASSESSEE SHALL PRODUCE ALL THE BOOK OF ACCOUNT AND SUPPORTING EVIDENCES WHERE ALL THE FACTS COULD BE BROUGHT ON RECORD AND PROPER DECISION COULD BE TAKEN BY THE AO. 5. PER CONTRA, LD. COUNSEL OF THE ASSESSEE SUPPORTED T HE ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT HUGE DETAILS WERE SUBMITTED TO THE LD. CIT(A) AND AFTER ANALYSING THESE DETAILS ONLY LD. C IT(A) GAVE RELIEF TO THE ASSESSEE. HOWEVER, LD. COUNSEL WAS NOT ABLE TO SHO W ANY DOCUMENTARY EVIDENCE WHEREBY IT COULD BE ESTABLISHED THAT ASSES SEE HAD PRODUCED COMPLETE BOOKS OF ACCOUNT AND SUPPORTING VOUCHERS F OR VERIFICATION OF THE REQUISITE DETAILS. 8 SOPAN D PATADE 6. WE HAVE GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AND SUBMISSIONS MADE BY BOTH THE SIDES. IT HAS BEEN CL AIMED BY THE ASSESSEE THAT ASSESSEE IS NOT A TRANSPORT OPERATOR BUT MEREL Y A TRANSPORT AGENT. TO DECIDE THIS ISSUE, IT IS NECESSARY TO EXAMINE THE BILTY ETC ISSUED BY THE ASSESSEE OR THE MAIN TRANSPORTER, IN CASE MAIN TRAN SPORTER IS SOME OTHER PERSON. BUT NONE OF THE PARTIES BEFORE US PRODUCED COPIES OF BILTY OR ANY OTHER DOCUMENTARY EVIDENCE FROM WHERE IT COULD BE C ONCLUSIVELY ESTABLISHED WHETHER THE ASSESSEE ACTED AS THE MAIN TRANSPORT OP ERATOR OR MERELY AS A TRANSPORT AGENT. FURTHER, WITH REGARD TO THE CLAIM OF THE ASSESSEE THAT IN EACH CASE, WHEREVER THE AMOUNT OF PAYMENT IN AGGREG ATE PER PAYEE EXCEEDED RS.50,000/-, PAN WAS PROVIDED, IT WAS NOTE D BY US THAT THOUGH DETAILED CHARTS WERE SUBMITTED, BUT FROM THESE CHAR TS IT WAS NOT POSSIBLE TO DECIPHER THE AGGREGATE AMOUNT OF PAYMENT MADE TO ON E PERSON. THE CHARTS HAVE BEEN PREPARED TRUCK NUMBER-WISE AND NOT PERSON -WISE. UNDER THESE CIRCUMSTANCES, IN ABSENCE OF SUPPORTING LEDGER ACCO UNTS AND IN ABSENCE OF PROPER RE-TABULATIONS OF THESE CHARTS, IT IS NOT PO SSIBLE TO DECIDE HOW MUCH PAYMENT HAS BEEN MADE TO A PARTICULAR PERSON. UNDE R THESE CIRCUMSTANCES, WHEN THESE QUERIES WERE PUT TO THE LD. COUNSEL, HE VERY FAIRLY AND GRACEFULLY EXPRESSED THAT THESE ISSUES COULD BE SENT BACK TO T HE AO FOR VERIFICATION OF PROPER FACTS. THUS, UNDER THESE CIRCUMSTANCES, WE FIND IT APPROPRIATE TO SEND THE MATTER BACK TO THE FILE OF THE AO WHERE TH E AO SHALL GIVE ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE TO GIVE COMP LETE DETAILS TO ESTABLISH WHETHER THE ASSESSEE IS A TRANSPORT OPERATOR OR A T RANSPORT AGENT AND HOW MUCH AMOUNT HAS BEEN MADE PER PAYEE DURING THE YEAR TO EACH PAYEE. THE AO SHALL EXAMINE ALL THE DETAILS AND DOCUMENTARY EV IDENCES AND DECIDE THIS ISSUE AFRESH AFTER CONSIDERING ALL THE DETAILS AND DOCUMENTARY EVIDENCES SUBMITTED BY THE ASSESSEE ON OBJECTIVE BASIS. FURT HER, THE ASSESSEE IS FREE TO 9 SOPAN D PATADE RAISE ANY LEGAL OR FACTUAL ISSUE BEFORE THE AO. TH US, WITH THESE DIRECTIONS, ALL THE GROUNDS ARE SENT BACK TO THE FILE OF THE AO. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS T REATED AS ALLOWED, FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE CONCL USION OF THE HEARING. SD/- SD/- (JOGINDER SINGH) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19 TH MAY, 2017 PK/- COPY TO: THE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) -39, MUMBAI 3. THE CIT - 2, MUMBAI 4. THE DR, F BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI