M/s. Olympic Transport, Ahmedabad V. The ACIT., Circle-9, Ahmedabad

ITA 430/AHD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60266 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-03-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 10-02-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVATIA
• Keywords: Opportunity of being heard

Judgement Text

ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, A HMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.A. NO.430 /AHD/2010 (ASSESSMENT YEAR: 1996-97) M/S. OLYMPIC TRANSPORT CHINUBHAI CHAMBERS, KAGDAPITH, AHMEDABAD-380 022. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, (OSD),CIRCLE-9, PRATYAKSHA BHADAN, NEAR PANJARA POLE, AMBAWADI, AHMEDABAD-380 015. (RESPONDENT) PAN: AAAFO 5970 B APPELLANT BY : SHRI S. N.DIVATIA. RESPONDENT BY : SHRI SAMIR TEKRIWAL, SR. D.R. ( )/ ORDER DATE OF HEARING : 29-3-2012 DATE OF PRONOUNCEMENT : 20/4/2012 PER: SHRI ANIL CHATURVEDI, A.M. THIS APPEAL IS FILED BY THE ASSESSEE DIRECTED AGAI NST THE ORDER OF LD. CIT (A)-XV, AHMEDABAD DATED 9-12-2009 FOR THE A SSESSMENT YEAR 1996-97. ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.21,73,660/- WAS FILED ON 30-10-1996. THEREAFTER, THE ASSESSMENT WAS REOPENED AND FINALLY THE ASSESSMENT WAS COMPLETED ON 29-12-2008 DETERMINING THE TOTAL I NCOME AT RS.29,90,624/- BY ADDING RS.8,01,312/- U/S. 40A (2) (B) OF THE INCOME TAX ACT. 3. BEING AGGRIEVED BY THE ABOVE ORDER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A). CIT (A) CONFIR MED THE ADDITION MADE. AGAINST THIS ORDER THE REVENUE FILED APPEAL B EFORE THE TRIBUNAL. IN THE FIRST ROUND THE TRIBUNAL VIDE ORDER DATED 4- 4-2007 OBSERVED AS UNDER:- 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS, AND PERUSED THE MATERIAL ON RECORD. IN OUR OPINION, MER ELY THAT IN A.Y. 1995-96 THE ASSESSEE HAS RESORTED TO KAR VIVA D SAMADHAN SCHEME, 1998 IT DOES NOT MEAN THAT THE ASSESSEE CA N NOT DISPUTE THE DISALLOWANCE IN THE YEAR UNDER CONSIDER ATION. NO DOUBT THE ASSESSEE HAS RAISED THE CONTENTIONS BEFOR E THE A.O. ALONG WITH OTHER CONTENTIONS THAT THE TRUCKS OPERAT ED BY THE PARTNERS WERE GOING EMPTY FROM AHMEDABAD TO THE POI NT OF LOADING AT BHAVNAGAR (APPROXIMATELY 250 KMS) PORT I N ORDER TO LOAD THE GOODS OF THE CLIENTS AND FOR THAT THE PART NERS HAVE TO INCUR EXTRA EXPENDITURE AND TO COMPENSATE THE PARTN ERS, ETC., THE EXCESS CARTAGE RATES WERE PAID TO THE PARTNERS. THE CONTENTION OF THE ASSESSEE THAT IMMEDIATE CASH PAYMENTS WERE N OT MADE TO THE PARTNERS WHILE IMMEDIATE PAYMENTS WERE TO BE MA DE TO THE ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 3 OUTSIDERS BUT NO EVIDENCE HAS BEEN BROUGHT ON RECOR D WHICH MAY JUSTIFY THE EXTRA RATE PAID TO THE PARTNERS DUE TO THE EMPTY PLYING OF THE TRUCKS BEFORE IT IS ACTUALLY USED BY THE ASSESSEE- FIRM AND THE ASSESSEE FIRM WERE NOT PAYING TO THE P ARTNERS IN RESPECT OF TRUCKS BEING RUN EMPTY. THERE IS NO DISP UTE THAT THE PROVISIONS OF SEC. 40A( 2) (B) WERE APPLICABLE TO T HE PARTNERS TO WHOM THE PAYMENTS HAVE BEEN MADE IN EXCESS. WHETHER THE EXCESS PAYMENT WAS REASONABLE OR NOT WILL DEPEND ON THE FACTS OF CASE. SINCE THE ASSESSEE HAS MADE EXCESS PAYMENT S, THEREFORE, THE ONUS IS ON THE ASSESSEE TO JUSTIFY B EFORE THE A.O. THAT THE PAYMENTS MADE BY THE ASSESSEE WERE REASONA BLE, AS COMPARED TO THE MARKET RATE. SO FAR AS THE DECISION OF THE TRIBUNAL. IN ITA NO.1866/AHD/1994 IN THE CASE OF JY OTI TRANSPORT IS CONCERNED, IN OUR OPINION, THIS DECISION WILL NO T ASSIST THE ASSESSEE AS THE EXCESS RATE PAID TO THE PARTNERS AS COMPARED TO OUTSIDERS RANGED BETWEEN 3% TO 7% ONLY WHILE IN THE CASES BEFORE US THE EXCESS CHARGES PAID BY THE ASSESSEE R ANGE FROM 20% TO 33.33%, WHICH HAS BEEN MENTIONED IN THE BRIE F FACTS. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDERS OF THE CIT (A) AND RESTORE THE ISSUE TO THE FILE OF TH E A.O. WITH A DIRECTION THAT THE ASSESSEE SHALL ADDUCE THE EVIDEN CE BEFORE THE A.O., WHETHER THE ASSESSEES HAVE PAID TO THE PARTNE RS FOR PLYING THE EMPTY TRUCKS FROM AHMEDABAD TO THE POINT OF LOA DING. WHETHER THE PARTNERS HAVE TO RUN TRUCKS EMPTY FROM AHMEDABAD TO BHAVNAGAR OR NOT. WHETHER THE PAYMENT HAS BEEN M ADE TO THE PARTNERS SUBSEQUENTLY AS COMPARED TO THE OUTSIDE PA RTIES. THE ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 4 A.O. IS ALSO DIRECTED TO RE-DECIDE THE ISSUE IN ACC ORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. NOW, EVEN IN THE SECOND ROUND ALSO, A.R. OF THE ASSESSEE DID NOT ADDUCE ANY EVIDENCE BEFORE A.O. AS WELL AS BEFO RE THE CIT (A). CIT (A) OBSERVED AS UNDER:- 4. THE PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT IN THE SET ASIDE ASSESSMENT PROCEEDINGS THE APPELLANT DID NOT FURNISH ANY PROOF TO THE A.O. WHICH ESTABLISHED THAT THE PARTNE RS PLIED EMPTY TRUCKS FROM AHMEDABAD TO BHAVNAGAR AND OTHER POINTS MENTIONED ABOVE IN THE HONBLE ITAT DIRECTION QUOTE D ABOVE. DURING THE COURSE OF APPELLATE PROCEEDINGS ALSO NOT HING WAS FURNISHED, THOUGH THE LD. AR WAS ASKED TO INFORM SP ECIFICALLY THE PROOFS FURNISHED TO THE A.O. WITH RESPECT TO TH E DIRECTIONS GIVEN BY HONBLE ITAT. AS NOTHING WAS HEARD FROM TH E A.R. DESPITE AN OPPORTUNITY GIVEN ON 5-12-2009 THE ASSES SMENT RECORD WAS CALLED FORTH AND SEEN. IT SHOWED THAT DU RING THE SET- ASIDE PROCEEDINGS THE APPELLANT THROUGH A WRITTEN L ETTER ADDRESSED TO THE A.O. RELIED UPON CIT (A) ORDER DAT ED 25-1-2002 AND SUBMITTED GENERAL ARGUMENTS ABOUT THE SPEED WIT H WHICH THE TRUCKS PLIED, OLD CLIENTS STILL CONTINUING BUSI NESS WITH THE ASSESSEE BECAUSE OF PROMPT AND SPEEDY TRANSPORTATIO N SERVICES ETC., BUT NO EVIDENCE WERE FURNISHED. THESE ARGUMEN TS WERE REPEATED BY THE LD. A.R. DURING THE COURSE OF PRESE NT APPELLATE PROCEEDINGS AS WELL. ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 5 AS THE DIRECTIONS OF HONBLE ITAT HAVE NOT BEEN RES PECTED BY THE ASSESSEE, WHICH WAS ASKED TO ADDUCE EVIDENCE BE FORE THE A.O. WITH RESPECT TO PLYING OF EMPTY AND PAYMENTS TO PA RTNERS SUBSEQUENT TO THE PAYMENT MADE TO OTHER PARTIES, I HAVE NO ALTERNATIVE BUT TO CONFIRM THE ADDITION MADE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD. SINCE IN THE SECOND ROUND ALSO, THE ASSESSE E HAS NOT ADDUCED ANY EVIDENCE BEFORE THE A.O., AND ALSO BEFO RE THE CIT (A) AS WELL AS BEFORE US. WE ARE THEREFORE, OF THE CONSIDE RED OPINION, THAT THERE IS NO INFIRMITY IN THE ORDER OF THE CIT (A) A ND THEREFORE WE UPHOLD THE ACTION OF THE CIT(A). 6. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 20- 4 - 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA NO.4 30/AHD/2010 ASSESSME NT YEAR 1996- 97 . 6 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) XV, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 15 - 4 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 18 / 4 / 2012 MEMBER.OTHER MEMBER . 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 19 - 4 - 2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 20 - 4 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 20 - 4 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20 - 4 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..