Sundar Lal Jain, UDAIPUR V. DCIT, UDAIPUR

ITA 444/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5269 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.444/JODH/2015 ASSESSMENT YEAR: 2009-10 SUNDAR LAL JAIN, PROP. M/S. S. JAIN & CO., 14 UIT SHOPS, SECTOR NO.11, HIRANMAGRI, UDAIPUR PAN :AAVPJ3810E VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, 16- MOOMAL TOWER, SAHELI MARG, UDAIPUR, RAJASTHAN APPELLANT RESPONDENT APPELLANT BY NONE RESPONDENT BY SHRI S. L. MOURYA, DR DATE OF HEARING: 10.03.2016 DATE OF PRONOUNCEMENT: 10.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED CIT (A)-2, UDAIPUR DATED 11-08-2015 PASSED IN APPEA L NO.767/2011-12 FOR ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS SOUGHT FOR ADJOURNMENT STATING THAT HIS LD. COUNSEL FOR THE ASSESSEE WAS BUSY WITH INCOME TAX TIME BARR ING ASSESSMENTS. AS THE 2 ITA NO.444/JODH/2015 REQUEST FOR ADJOURNMENT IS NOT FOUND TO BE GIVING S UBSTANTIAL REASON, THE ADJOURNMENT APPLICATION FILED BY THE ASSESSEE IS RE JECTED AND THE APPEAL IS HEARD. 3. SHRI S. L. MOURYA, LEARNED DR REPRESENTED ON BEH ALF OF THE REVENUE. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ONLY IS SUE IN THE ASSESSEES APPEAL WAS AGAINST THE ACTION OF THE LEARNED CIT (A ) IN CONFIRMING THE DISALLOWANCE OF RS.96,000/- U/S 40A (3) OF THE IT A CT. IT WAS A SUBMISSION THAT THE ASSESSEE IS IN THE BUSINESS OF TRANSPORTAT ION WORK. THE ASSESSEE HAD MADE PAYMENT IN RESPECT OF A TANKER LORRY TO ON E SHRI SANDEEP JAIN WHO IS THE SON OF THE ASSESSEE IN EXCESS OF RS.20,000/- IN CASH PER DAY. THE DETAILS OF THE PAYMENTS MADE TO SHRI SANDEEP JAIN A RE EXTRACTED IN PAGE 3 PARA 6.2 OF THE ASSESSMENT ORDER. IT WAS A SUBMISSI ON THAT THE PAYMENTS DURING ONE DAY HAVING EXCEEDED RS.20,000/- IN CASH IN AGGREGATE, THE ASSESSING OFFICER HAD INVOKED THE PROVISIONS OF SEC TION 40A (3) OF THE ACT AND DISALLOWED THE SAID CASH TRANSACTION. IT WAS A SUBMISSION THAT ON APPEAL THE LEARNED CIT (A) HAD CONFIRMED THE DISALLOWANCE U/S 40A (3) OF THE ACT. IT WAS A SUBMISSION THAT THE ORDER OF THE LEARNED CIT (A) WAS LIABLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE SUBMISSIONS. ON PERUSAL O F THE ORDER OF THE PROVISIONS OF SECTION 40A (3) OF THE ACT SHOWS THAT THE PROVISO THEREIN SPECIFIES THAT NO DISALLOWANCE IS TO BE MADE AND NO PAYMENT SHALL BE 3 ITA NO.444/JODH/2015 DEEMING TO BE THE PROFIT & LOSS OF BUSINESS OR PROF ESSION, U/S SECTION 40A (3) OF THE ACT WHERE THE PAYMENT OR AGGREGATE OF THE PA YMENT MADE TO A PERSON IN A DAY OTHERWISE THAN BY ACCOUNT PAYEE CHEQUE DRA WN ON A BANK OR ACCOUNT PAYEE BANK DRAFT EXCEEDS RS.20,000/-, IN SU CH CASES AND UNDER SUCH CIRCUMSTANCES AS MAY BE PRESCRIBED HAVING REGA RD TO THE NATURE AND EXTENT OF THE BANKING FACILITIES AVAILABLE, CONSIDE RATION OF BUSINESS EXPEDIENCY AND OTHER RELEVANT FACTORS. HERE, A PERU SAL OF THE ORDER OF THE LEARNED CIT (A) SHOWS THAT THE ASSESSING OFFICER DI D NOT DOUBT THE TRANSPORTATION RECEIPTS AND EXPENSES. THE TDS HAS A LSO BEEN DEDUCTED AND THE ASSESSMENT ORDER OF THE RECIPIENT HAS ALSO BEEN PASSED BY THE SAME ASSESSING OFFICER. THE RECIPIENT HAS ALSO CONFIRMED THE CASH PAYMENT RECEIVED BY HIM. THE RECIPIENT SHRI SANDEEP JAIN IS A FAMILY MEMBER AND ADMITTEDLY THE PAYMENTS FOR THE TANKER WOULD HAVE T O BE MADE IN CASH AS THERE WOULD BE WAY-SIDE EXPENSES SUCH AS FUEL, REPA IRS & MAINTENANCE, TOLLS ETC. THIS BEING SO, CONSIDERING THE OTHER RELEVANT FACTORS AS MENTIONED IN PROVISO TO SECTION 40A (3) OF THE ACT IN RESPECT OF THE TRANSPORT BUSINESS, WE ARE OF THE VIEW THAT NO DISALLOWANCE IS CALLED FOR ON THE ISSUE IN HANDS OF THE ASSESSEE AS THE TRANSACTIONS ARE FULLY ACCOUNTED FO R BY BOTH THE SIDES AND THE PAYMENTS HAVE BEEN MADE IN RESPECT OF TRANSPORT BUSINESS. IN THE CIRCUMSTANCES, THE ADDITION MADE BY THE ASSESSING O FFICER AND AS CONFIRMED BY THE LEARNED CIT (A) STANDS DELETED. 4 ITA NO.444/JODH/2015 5. IN THE RESULT, BOTH THE APPEAL OF THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 10 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1 . THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 10.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 11.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 11.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 11.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 11.03.16 SR.PS 6. DATE OF PRONOUNCEMENT NA SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER