DCIT, Nashik V. B.M.Chaphalkar & Sons, Nashik

ITA 687/PUN/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4323 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 03-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RA J IV HARIT
• Keywords: Gift; Opportunity of being heard; Question of law
• Section: 133A; 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 687/PN/2012 (ASSTT.YEAR : 2008-09) DY.CIT, CIRCLE-1, NASHIK .. APPELLANT VS. B.M. CHAPHALKAR AND SONS, 26, DEHBANOO COMPLEX, PUNE ROAD, NASHIK ROAD, NASHIK. PAN NO. AADFB 5084C .. RESPONDENT APPELLANT BY : SHRI RAJIV HARIT RESPONDENT BY : SHRI PRAMOD SHINGTE DATE OF HEARING : 26-07-2013 DATE OF PRONOUNCEMENT : 31-07-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 30-01-2012 OF THE CIT(A) I, NASHIK RELATING TO ASS ESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE, THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN ALLOWING THE A DDITION OF RS.142,37,779/- AND RS. 18,20,833/- MADE ON ACCOUNT OF SUBLET WORK CHARGES AND CARTING CHARGES RESPECTIVELY. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE, THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN HOLDING THE PA YMENT MADE BY THE ASSESSEE ON ACCOUNT OF SUBLET WORK CHARGES AND CART ING CHARGES IS GENUINE. 3. THE APPELLANT PRAYS THE ORDER OF THE ASSES SING OFFICER MAY BE RESTORED. 4. THE APPELLANT PRAYS TO ADDUCE SUCH FURTHE R EVIDENCE TO SUBSTANTIATE HIS CASE. 5. THE APPELLANT PRAYS LEAVE TO ADD, ALTER, C LARIFY, AMEND AND OR WITHDRAW ANY GROUNDS OF APPEAL AS AND WHEN THE OCCA SION DEMANDS. 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION AND FILED THE RETURN OF INCOM E DECLARING TOTAL INCOME OF RS.98,46,210/- ON 01-07-2008. A SURVEY ACTION U/S. 133A WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 06-08-2009. D URING THE SURVEY ACTION, THE BILLS AGAINST THE SUB-CONTRACT EXPENSES CLAIMED BY THE ASSESSEE WERE NOT FOUND IN RESPECT OF SOME OF THE SUB-CONTRACTORS. IN RESP ECT OF THIS, THE PARTNER, WHEN CONFRONTED STATED THAT THE FINALISATION OF THE AUDI T REPORT IS PENDING FOR WANT OF THE BILLS FROM SUB-CONTRACTORS AND HAS ALSO OFFERED ADDITIONAL INCOME OF RS.30,00,000/- ON THIS ACCOUNT FOR A.Y. 2009-10 ON VOLUNTARY BASIS. THE CONTRACT AND PROFIT AND LOSS ACCOUNT WAS PREPARED D URING THE COURSE OF THE SURVEY ACTION WHICH SHOWED THE DISCREPANCY OF AROUN D RS.45,11,276/- IN THE EXPENSES CLAIMED BY THE ASSESSEE. THE PARTNER OF T HE ASSESSEE FIRM HAS OFFERED THE SAME AS ADDITIONAL INCOME FOR TAXATION FOR A.Y. 2010-11 ON A VOLUNTARY BASIS. FOR THE A.Y. 2008-09, THE ASSESSING OFFICER MADE ADDITIONS OF RS.1820,833/- ON ACCOUNT OF CARTING CHARGES AND RS. 1,42,37,779/- ON ACCOUNT OF SUBLET WORK AND ASSESSED THE TOTAL INCOME OF THE APPELLANT AT RS.2,59,04,820/-. 3.1 SO FAR AS SUBLET WORK IS CONCERNED THE ASSESSIN G OFFICER MENTIONED THE FOLLOWING REASONS FOR DISALLOWING THE SAME : 1) DURING THE SURVEY ACTION U/S. 133A ON 06/08/20 09, THE DISCREPANCIES WERE NOTICED AND HENCE IN THE A.YS. 2009-10 AND 201 0-11, THE APPELLANT HAS OFFERED TO TAX ADDITIONAL INCOME OF RS. 30,00,000/- AND RS. 45,11,276/- RESPECTFULLY DURING SURVEY ACTION. IN SURVEY ACTION ONE NOTEBOOK REGARDING FEW SUB-CONTRACTORS WAS FOUND, IN WHOSE ACCOUNTS CH EQUES WERE DEPOSITED AND CASH WAS WITHDRAWN AND HENCE THESE PAYMENTS TO THE SAID CONTRACTORS ARE NOT GENUINE. THE SAID CONTRACTORS FOUND NOTED I N THE DIARY HAVE ALSO BEEN PAID SUB-CONTRACT PAYMENTS DURING THE YEAR UNDER AP PEAL. IN THE SURVEY ACTION, SELF MADE VOUCHERS WITH SIGNATURE ON WHICH NOTHING WAS WRITTEN WERE FOUND AND IMPOUNDED. 3 2) THE BANK ACCOUNTS OF THE SUB-CONTRACTORS ARE IN . THE SAME BANK AND BRANCH AS THAT OF THE APPELLANT. 3) THE NOTICES U/S. 133(6) HAVE BEEN ISSUED TO THE SUB-CONTRACTORS FOR CARTING TO WHOM THE PAYMENTS EXCEEDING RS. 50,000/- HAVE BEEN MADE AND ALSO TO SUBCONTRACTOR FOR SUBLET WORK WHERE TOTAL P AYMENTS EXCEEDING RS.1,00,000/- HAVE BEEN MADE. THE A.O. HAS POINTED OUT THAT 7 CARTING CONTRACTORS HAVE NOT CONFIRMED THE PAYMENTS MADE BY THE APPELLANT AND ON 2 CARTING AGENTS THE NOTICES U/S. 133(6) WERE NOT SER VED DUE TO INCOMPLETE ADDRESS AS REMARKED BY THE POSTAL AUTHORITIES. THE A.O. HAS, FURTHER, POINTED OUT THAT 9 SUBLET WORK CONTRACTORS HAVE NOT CONFIRM ED THE PAYMENT MADE BY THE APPELLANT AND NOTICES U/S. 133(6) WERE NOT SERVED O N 5 SUBCONTRACTORS DUE TO INCOMPLETE ADDRESS AS REMARKED BY THE POSTAL AUTHOR ITIES. THE A.O. HAS POINTED OUT THAT IN RESPECT OF ONE SUB-CONTRACTOR I .E. SHRI BIJAY BHASKAR BEHERA, THE REMARK OF POSTAL AUTHORITY WAS 'LEFT TH E ADDRESS'. 4) THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE OR HAS NOT PRODUCED THE SAID SUB-CONTRACTORS BEFORE THE A.O. ON WHOM NOTICE S HAVE BEEN SERVED AND HAVE NOT FILED REPLY CONFIRMING THE PAYMENTS MADE BY THE APPELLANT AND ON WHOM NOTICES U/S. 133(6) COULD NOT BE SERVED. 3.2 SIMILARLY, IN ABSENCE OF ANY EVIDENCE PRODUCED BEFORE HIM TO SUPPORT THE CLAIM OF EXPENDITURE ON ACCOUNT OF CARTING CHARGES THE ASSESSING OFFICER DISALLOWED AN AMOUNT OF RS.18,20,833/- CLAIMED AS E XPENDITURE ON ACCOUNT OF CARTING CHARGES. THUS, HE MADE TOTAL DISALLOWANCE TO RS.1,60,58,612/- TO THE RETURNED INCOME OF THE ASSESSEE. 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE PAYM ENTS TO THE SUB- CONTRACTS TREATED AS NON GENUINE BY THE ASSESSING O FFICER ARE SUBSTANTIALLY MADE BY CHEQUES AND SMALL PART OF THE PAYMENT WAS M ADE IN CASH WHENEVER THERE WAS URGENCY. TDS HAS BEEN DULY DEDUCTED FROM SUCH PAYMENTS AND ALL THE SUB-CONTRACTORS ARE HAVING PAN NUMBERS AND ARE ASSESSED TO TAX. THE SUB- CONTRACTORS HAVE SHOWN SUCH SUB CONTRACT RECEIPTS I N THEIR RESPECTIVE RETURNS OF INCOME. IT WAS SUBMITTED THAT MOST OF THE SUB-CONT RACTORS ARE FROM DISTANT PLACES SUCH AS GUJARAT, JHARKHAND AND ALSO FROM DHU LE, JALGAON AND AHMEDNAGAR. DETAILS FILED BEFORE THE ASSESSING OFF ICER GIVING THE NAMES OF 4 THE CONTRACTORS WITH THE PAN NUMBERS, THEIR ADDRESS , TOTAL AMOUNT, AMOUNT OF TDS ETC WERE FURNISHED BEFORE THE LD.CIT(A). IT WA S FURTHER SUBMITTED THAT ADDITIONAL INCOME DECLARED IN SUBSEQUENT YEARS, I.E . A.Y. 2009-10 AND 2010-11 CANNOT BE THE BASIS FOR MAKING ADDITION FOR A.Y. 20 08-09 IN ABSENCE OF ANY EVIDENCE TO SUPPORT THAT SUCH THINGS WERE FOUND DUR ING THE COURSE OF SURVEY. THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL (THI RD MEMBER) IN THE CASE OF SAMRAT BEER BAR VS. DCIT REPORTED IN 75 ITD 19 WAS BROUGHT TO THE NOTICE OF THE LD.CIT(A) FOR THE ABOVE PROPOSITION. VARIOUS O THER DECISIONS WERE ALSO BROUGHT TO THE NOTICE OF THE CIT(A). 4.1 IT WAS SUBMITTED THAT THE CONTENTION OF THE ASS ESSING OFFICER THAT THE BANK ACCOUNTS OF THE SUB-CONTRACTS ARE OPENED IN TH E SAME BANK AND BRANCH IN WHICH THE ASSESSEE HAS BANK ACCOUNT IS ALSO NOT COR RECT. IT WAS SUBMITTED THAT THE BANK ACCOUNTS OF THE SUB-CONTRACTORS HAVE BEEN OPENED IN THE SAME BANK AND BRANCH BECAUSE AFTER RECEIPT OF CHEQUES FROM TH E GOVERNMENT DEPARTMENTS THE AMOUNTS CAN BE IMMEDIATELY TRANSFERRED TO THE A CCOUNTS OF THE SUB- CONTRACTORS SO THAT THEY CAN GET THE AMOUNTS IMMEDI ATELY FOR MAKING PAYMENTS TO THEIR LABOURERS. AS REGARDS THE NON-SERVICE OF NOTICE U/S.133(6) AND NON- SUBMISSION OF REPLY BY SOME OF THE SUB-CONTRACTORS IT WAS SUBMITTED THAT THE ASSESSEE HAS FURNISHED ADDRESSES OF THE SAID CONTRA CTORS WHICH WAS AVAILABLE WITH IT. THE POSTAL AUTHORITIES COULD NOT SERVE NO TICE U/S.133(6) ON 13 SUB- CONTRACTORS DUE TO INCOMPLETE ADDRESS AND ON ONE SU B-CONTRACTOR AS HE HAD LEFT THE ADDRESS. IT WAS SUBMITTED THAT THE ASSESSEE HA D GIVEN THE PARTICULARS AS SUPPLIED BY THE SUB-CONTRACTORS AND HE IS NOT EXPEC TED TO PRODUCE OR LOCATE THE EXACT ADDRESS OF THE SUB-CONTRACTORS AFTER PASSAGE OF 2 TO 3 YEARS. 5 5. SO FAR AS THE DISALLOWANCE OF SUB-CONTRACTORS FO R CARTING AND SUBLET WORK ON ACCOUNT OF NON-CONFIRMATION OF THE SAID PAYMENTS IN RESPONSE TO NOTICE U/S.133(6) IT WAS SUBMITTED THAT OUT OF 53 SUB-CONT RACTORS ONLY 23 SUB- CONTRACTORS HAVE NOT RESPONDED TO THE NOTICE U/S.13 3(6) AND THE ASSESSEE CANNOT BE PUNISHED FOR THEIR NON RESPONSE TO THE SAID NOTI CES. VARIOUS DECISIONS WERE ALSO CITED TO THE PROPOSITION THAT NO ADDITION UNDE R THE FACTS AND CIRCUMSTANCES OF THE CASE IS POSSIBLE MERELY BECAUSE NOTICES U/S. 133(6) WERE RETURNED UNSERVED. 6. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE AND RELYING ON THE DECISIONS OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF SAMRAT BEER BAR VS. ACIT REPORTED IN 75 ITD 19 (TM) AND THE DECISION IN THE CASE OF ACIT VS. S.R.J. PEETY STEELS LTD./OM RE-ROLLING MILL (P) LTD . REPORTED IN 137 TTJ 627(PUNE) THE LD.CIT(A) DELETED THE ADDITION. WHIL E DOING SO, HE OBSERVED THAT THE ASSESSING OFFICER HAS NOT BROUGHT ON RECOR D ANY EVIDENCE THAT THE PAYMENTS MADE TO THE SUB-CONTRACTORS IN F.Y. 2007-0 8 ARE NOT GENUINE. HE FURTHER OBSERVED THAT INSTEAD OF SUMMONING THE SUB- CONTRACTORS WHO HAVE NOT REPLIED TO HIS NOTICE U/S.133(6) DURING ASSESSMENT PROCEEDINGS OR VERIFYING THEM THROUGH INSPECTOR PARTICULARLY AS THE SAID SUB -CONTRACTORS ARE HAVING PAN NUMBERS ETC THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING SUCH DISALLOWANCE. HE NOTED THAT IF THE ADDITION MADE B Y THE ASSESSING OFFICER IS SUSTAINED, THEN THE GP RATE SHALL BE 62% WHICH IS A BNORMAL UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. HE ACCORDINGLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 6 6.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY CHA LLENGED THE ORDER OF THE CIT(A). HE SUBMITTED THAT WHEN THE ASSESSEE WA S NOT ABLE TO JUSTIFY THE PAYMENTS TO THE SUB-CONTRACTORS AND FAILED IN PRODU CING THEM BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION THE CITI(A) W AS NOT JUSTIFIED IN DELETING THE ADDITION. REFERRING TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. N.R. PORTFOLIO PVT. LTD. VIDE ITA NO.134 /2012 ORDER DATED 21-12- 2012 HE DREW THE ATTENTION OF THE BENCH TO THE FOLL OWING OBSERVATIONS : 8. THIS COURT IS CONSCIOUS OF A VIEW TAKEN IN SOME OF THE PREVIOUS DECISIONS THAT THE ASSESSEE CANNOT BE FAULTED IF THE SHARE APPLICANTS DO NOT RESPOND TO SUMMONS, AND THAT THE STATE OR REVENUE AUTHORITIES HAVE THE WHER EWITHAL TO COMPEL ANYONE TO ATTEND LEGAL PROCEEDINGS. HOWEVER, THAT IS MERELY ONE ASPE CT. AN ASSESSEE'S DUTY TO ESTABLISH THAT THE AMOUNTS WHICH THE AO PROPOSES TO ADD BACK, UNDER SECTION 68 ARE PROPERLY SOURCED, DOES NOT CEASE BY MERELY FURNISHI NG THE NAMES, ADDRESSES AND PAN PARTICULARS, OR RELYING ON ENTRIES IN A REGISTR AR OF COMPANIES WEBSITE. ONE MUST REMEMBER THAT IN ALL SUCH CASES, MORE OFTEN TH AN NOT, THE COMPANY IS A PRIVATE ONE, AND SHARE APPLICANTS ARE KNOWN TO IT, SINCE TH EY ARE ISSUED ON PRIVATE PLACEMENT, OR EVEN REQUEST BASIS. IF THE ASSESSEE H AS ACCESS TO THE SHARE APPLICANT'S PAN PARTICULARS, OR BANK ACCOUNT STATEMENT, SURELY ITS RELATIONSHIP IS CLOSER THAN ARM'S LENGTH. ITS REQUEST TO SUCH CONCERNS TO PARTI CIPATE IN INCOME TAX PROCEEDINGS, WOULD, VIEWED FROM A PRAGMATIC PERSPECTIVE, BE QUIT E STRONG, BECAUSE THE NEXT POSSIBLE STEP FOR THE TAX ADMINISTRATORS COULD WELL BE RE- OPENING OF SUCH INVESTOR'S PROCEEDINGS. THAT APART, THE CONCEPT OF 'SHIFTING O NUS' DOES NOT MEAN THAT ONCE CERTAIN FACTS ARE PROVIDED, THE ASSESSEE'S DUTIES A RE OVER. IF ON VERIFICATION, OR DURING PROCEEDINGS, THE AO CANNOT CONTACT THE SHARE APPLIC ANTS, OR THAT THE INFORMATION BECOMES UNVERIFIABLE, OR THERE ARE FURTHER DOUBTS I N THE PURSUIT OF SUCH DETAILS, THE ONUS SHIFTS BACK TO THE ASSESSEE. AT THAT STAGE, IF IT FALTERS, THE CONSEQUENCE MAY WELL BE AN ADDITION UNDER SECTION 68. THIS COURT RECOLLE CTS THE ROBUSTNESS WITH WHICH THE ISSUE WAS DEALT WITH, IN A. GOVINDARAJULU MUDALIAR V CIT, (1958) 34 ITR 807, IN THE FOLLOWING TERMS: 'NOW THE CONTENTION OF THE APPELLANT IS THAT ASSUMI NG THAT HE HAD FAILED TO ESTABLISH THE CASE PUT FORWARD BY HIM, IT DOES NOT FOLLOW AS A MATTER OF LAW THAT THE AMOUNTS IN QUESTION WERE INCOME RECEIVED O R ACCRUED DURING THE PREVIOUS YEAR, THAT IT WAS THE DUTY OF THE DEPARTME NT TO ADDUCE EVIDENCE TO SHOW FROM WHAT SOURCE THE INCOME WAS DERIVED AND WH Y IT SHOULD BE TREATED AS CONCEALED INCOME. IN THE ABSENCE OF SUCH EVIDENC E, IT IS ARGUED, THE 7 FINDING IS ERRONEOUS. WE ARE UNABLE TO AGREE. WHETH ER A RECEIPT IS TO BE TREATED AS INCOME OR NOT, MUST DEPEND VERY LARGELY ON THE FACTS AND CIRCUMSTANCES OF EACH CASE. IN THE PRESENT CASE THE RECEIPTS ARE SHOWN IN THE ACCOUNT BOOKS OF A FIRM OF WHICH THE APPELLANT AND GOVINDASWAMY MUDALIAR WERE PARTNERS. WHEN HE WAS CALLED UPON TO GIVE EXPL ANATION HE PUT FORWARD TWO EXPLANATIONS, ONE BEING A GIFT OF RS. 80,000 AN D THE OTHER BEING RECEIPT OF RS. 42,000 FROM BUSINESS OF WHICH HE CLAIMED TO BE THE REAL OWNER. WHEN BOTH THESE EXPLANATIONS WERE REJECTED, AS THEY HAVE BEEN IT WAS CLEARLY UPON TO THE INCOME-TAX OFFICER TO HOLD THAT THE INCOME M UST BE CONCEALED INCOME. THERE IS AMPLE AUTHORITY FOR THE POSITION THAT WHER E AN ASSESSEE FAILS TO PROVE SATISFACTORILY THE SOURCE AND NATURE OF CERTAIN AMO UNT OF CASH RECEIVED DURING THE ACCOUNTING YEAR, THE INCOME-TAX OFFICER IS ENTI TLED TO DRAW THE INFERENCE THAT THE RECEIPT ARE OF AN ASSESSABLE NATURE. THE C ONCLUSION TO WHICH THE APPELLATE TRIBUNAL CAME APPEARS TO US TO BE AMPLY W ARRANTED BY THE FACTS OF THE CASE. THERE IS NO GROUND FOR INTERFERING WITH T HAT FINDING, AND THESE APPEALS ARE ACCORDINGLY DISMISSED WITH COSTS.' 9. HAVING REGARD TO THE TOTALITY OF FACTS AND CIRCU MSTANCES, PARTICULARLY THE REMAND REPORT, WHICH WAS NOT CONSIDERED BY THE COMMISSIONE R (APPEALS) AND THE ITAT IN ITS PROPER PERSPECTIVE, THIS COURT IS OF THE OPINION TH AT THE QUESTION OF LAW REQUIRES TO BE ANSWERED IN FAVOUR OF THE REVENUE, AND AGAINST THE ASSESSEE. THE APPEAL IS THEREFORE, ALLOWED, BUT WITHOUT ANY ORDER AS TO COSTS. 7.1 HE SUBMITTED THAT DURING THE COURSE OF ASSESSME NT PROCEEDINGS THE ASSESSEE NEITHER ASKED THE ASSESSING OFFICER TO ISS UE SUMMONS TO THE SUB- CONTRACTORS NOR PRODUCED THE DETAILS AS PER THE ORD ER SHEET ENTRY DATED 22-12- 2010. THEREFORE, THE LD.CIT(A), WHOSE POWERS ARE C OTERMINOUS WITH THAT OF THE ASSESSING OFFICER, SHOULD NOT HAVE DELETED THE DISALLOWANCE. 8. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE ASSESSI NG OFFICER, TOWARDS THE FAG END OF THE TIME BEARING ASSESSMENT PROCEEDINGS, ASK ED THE ASSESSEE TO FURNISH THE DETAILS WHICH WAS NOT POSSIBLE. THE ASSESSEE H AD FILED THE COMPLETE ADDRESSES OF THE SUB-CONTRACTORS WHICH WAS AVAILABL E WITH IT AS PER THE ADDRESSES GIVEN BY THEM. SINCE PAYMENTS HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUES, TDS HAS BEEN DEDUCTED, THEIR PAN NUMBERS W ERE AVAILABLE WITH 8 DEPARTMENT, THEREFORE, THERE WAS NO JUSTIFICATION I N DISBELIEVING THE PAYMENT TO THE SUB-CONTRACTORS. HE ACCORDINGLY SUBMITTED THAT THE GROUNDS RAISED BY THE REVENUE SHOULD BE DISMISSED. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT DU RING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSE E TO JUSTIFY THE GENUINENESS OF THE EXPENSES INCURRED IN THE NAMES OF THE SUB-CO NTRACTORS. THE ASSESSING OFFICER ISSUED NOTICE U/S.133(6) TO VARIOUS PARTIE S BY REGISTERED POST WHICH WERE RETURNED BACK UNDELIVERED WITH THE POSTAL REMA RK INCOMPLETE ADDRESS . IN CERTAIN OTHER CASES THE PERSONS WHO RECEIVED SUC H NOTICES DID NOT CONFIRM THE PAYMENT OF SUBLET WORK CHARGES. WHEN THE ASSESSEE FILED THE COPIES OF SOME OF THE CONFIRMATIONS THE ASSESSING OFFICER ASKED THE A SSESSEE TO PRODUCE THE MODE OF RECEIPTS OF SUCH CONFIRMATION AND THE EVIDENCE I N SUPPORT OF MODE OF RECEIPT. THE ASSESSEE NEITHER PRODUCED THE ENVELOPE NOR ANY OTHER EVIDENCE TO SUBSTANTIATE THE MODE OF RECEIPT OF CONFIRMATION. ALTHOUGH THE ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE DETAILS AS PER ORDER SHEET ENTRY, THE ASSESSEE NEVER PRODUCED THE REQUISITE INFORMATION B EFORE COMPLETION OF THE ASSESSMENT NOR ASKED THE AO TO ISSUE SUMMONS TO THE PARTIES FOR VERIFICATION OF THE GENUINENESS OF SUCH PAYMENTS. MERELY BECAUSE P AYMENTS HAVE BEEN MADE BY ACCOUNT PAYEE CHEQUE AND TDS HAS BEEN DEDUCTED A ND PAN NUMBERS ARE GIVEN TO THE DEPARTMENT THE SAME IN OUR OPINION CAN NOT ABSOLVE THE ASSESSEE FROM SUBSTANTIATING THE GENUINENESS OF THE EXPENDIT URE. 9 9.1 IT IS THE SETTLED PROPOSITION OF LAW THAT FOR C LAIMING ANY EXPENDITURE AS GENUINE THE ONUS IS ALWAYS ON THE ASSESSEE TO SUBST ANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER THAT SUCH EXP ENDITURE IS WHOLLY AND EXCLUSIVELY INCURRED FOR THE PURPOSE OF BUSINESS. IN THE INSTANT CASE THE ASSESSEE HAS FAILED TO DO SO. FURTHER, AS OBSERVED EARLIER, THE ASSESSEE AT NO POINT OF TIME HAS REQUESTED THE ASSESSING OFFICER T O ISSUE SUMMONS U/S.131 TO THE SUB-CONTRACTORS. UNDER THESE CIRCUMSTANCES, TH E LD.CIT(A) WHOSE POWERS ARE COTERMINOUS WITH THAT OF THE ASSESSING OFFICER SHOULD NOT HAVE DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. HOWEVER, C ONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTIC E, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EV IDENCE TO HIS SATISFACTION REGARDING THE GENUINENESS OF THE SUB-CONTRACT EXPEN DITURE AND CARTING CHARGES. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 31 ST DAY OF JULY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 31 ST JULY, 2013 SATISH 10 COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, NASHIK 4. THE CIT-I, NASHIK 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE