THE ACIT-1(1), Ujjain V. SMT. UMA DAGA, Dewas

ITA 696/IND/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5665 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-09-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 07-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: S S DESH
• Keywords: Additional evidence; Non-deduction of tax
• Section: 194C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER ACIT, 1(2), UJJAIN .. ./ PAN: ABTPD1146L VS. SMT. UMA DAGA, DEWAS / APPELLANT / RESPONDENT / APPELLANT BY SHRI K. G. GOYAL, DR / RESPONDENT BY SHRI S.S.DESHPANDE AND SHRI RAMESHWAR KARPENTER, CAS DATE OF HEARING 15.09.2016 DATE OF PRONOUNCEMENT 19.10.2016 / O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS), UJJAIN [H EREINAFTER .. . / I.T.A. NO.696/IND/2015 %' ' / ASSESSMENT YEAR: 2010-11 ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 2 OF 8 REFERRED TO AS THE CIT(A)] DATED 28.07.2015 AND PER TAINS TO ASSESSMENT YEAR 2010-11 AS AGAINST APPEAL DECIDED I N ASSESSMENT ORDER DATED 26.03.2013 OF DY. CIT, CIRCL E 1(1), UJJAIN [HEREINAFTER REFERRED TO AS THE AO]. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL : - 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 39,56,195/- ON ACCOUNT OF BOGUS FREIGHT PAYMENT IGNORING THE FACT THAT EXPENSES WER E NOT SUPPORTED BY BILLS AND VOUCHERS, SUBSTANTIAL NUMBER OF VEHICLES WERE FOUND NON-EXISTENT AND OTHER DISCREPANCIES AS MENTIONED IN THE ASSESSMENT ORDER. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING A SUM O F RS. 39,56,195/- BASED ON ADDITIONAL EVIDENCES WHICH HAVE BEEN CONSIDERED WITHOUT FOLLOWING THE PROVISIONS OF RULE 46A(1) AND RULE 46(2) OF THE I. T. RULES, 1962. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 24,52,815/- MADE BY THE AO ON ACCOUNT OF NON DEDUCTION OF TAX AT SOURCE ON THE FREIGHT PAYMENTS MADE AS PER SECTION 194C OF THE INCOME-TAX ACT, 1961. AND IGNORING THE FACTS BROUGHT OUT IN ASSESSMENT ORDER AND THE REMAND REPORT. ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 3 OF 8 3. GROUNDS NO.1 & 2 RELATE TO DELETION OF ADDITION OF RS. 39,56,195/- ON ACCOUNT OF BOGUS FREIGHT PAYMENT. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TRANSPORT CONTRACTOR. THE ASSESSEE HA S FILED RETURN OF INCOME ON 22.10.2010 DECLARING TOTAL INCO ME AT RS. 12,18,530/-. DURING THE YEAR, THE ASSESSEE HAS CARR IED OUT TRANSPORTATION OF GRAINS FOR FOOD CORPORATION OF IN DIA AND M.P. STATE CIVIL SUPPLIES CORPORATION ON HIS TOTAL CONTR ACT RECEIPTS AT RS. 3,20,38,797/- AGAINST WHICH FREIGHT CHARGES O F RS. 1,88,71,511/- WAS CLAIMED. THE AO REQUIRED THE ASSES SEE TO JUSTIFY THE CLAIM OF FREIGHT BY PROVIDING DETAILS O F TRUCK, NAME OF PARTIES, NATURE OF SERVICES RENDERED AND DETAILS OF TDS MADE. THE AO ALSO EXAMINED SHRI KAILASH DAGA, HUSBA ND OF THE ASSESSEE. THE AO ANALYZED THE DETAILS OF TRUCK NUMBERS FURNISHED AND MADE PART OF ANNEXURE A/1 TO THE ASSE SSMENT ORDER OBSERVING THAT THESE VEHICLES ARE NON-EXISTEN T AS PER THE DETAILS OBTAINED FROM RTO WEBSITE. THE TOTAL PAYMEN T TO SUCH VEHICLES WAS WORKED OUT AT RS. 28,17,500/-. SIMILARL Y, 43 VEHICLES AS PER ANNEXURE B/1 OF THE ASSESSMENT ORDE R WERE ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 4 OF 8 ALSO NOT FOUND TO BE GENUINE AS SOME OF THE NUMBERS WERE PERTAINING TO GOODS, TRUCKS, CARS, JEEP ETC. TO WHOM PAYMENT OF RS. 11,38,695/- HAS BEEN SHOWN. ACCORDINGLY, THE AO MADE A DISALLOWANCE OF RS. 39,56,195/- OBSERVING THAT THESE ARE BOGUS PAYMENTS MADE BY THE ASSESSEE. 5. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). 6. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAS FURNISHED LIST OF VEHICLES ALONGWITH NU MBERS WHICH HAD BEEN DOUBTED BY THE AO. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LIST SO FURNISHED WAS F ORWARDED TO THE AO FOR VERIFICATION OF THE CORRECT NUMBERS. THE AO OBSERVED THAT VEHICLE NUMBERS NOW GIVEN BY THE ASSES SEE IN ADDITIONAL SUBMISSION HAS A VERY LITTLE DIFFERENCE AS MENTIONED IN THE INWARD REGISTER THAT MAY BE A HUMAN ERROR. T HE VEHICLE REGISTRATION NUMBERS COULD NOT BE FOUND IN SOME OF THE CASES DUE TO WRONG MENTION OF TRUCK NUMBER BY GATEKEEPER. THE GATEKEEPER IS NOT WELL EDUCATED AND HE CAN COMMIT MI STAKE IN MENTIONING THE VEHICLE NUMBERS. THEREFORE, THE CIT( A) HAS OBSERVED THAT THE ASSESSEE HAS RECONCILED THE TRUCK NUMBERS ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 5 OF 8 IN MOST OF THE CASES. THEN THERE REMAINS NO DOUBT T HAT THE ASSESSEE HAD INDULGED IN BOGUS PAYMENT BY ENTERING THE VEHICLES NUMBERS WHICH ARE NOT IN EXISTENCE. THEREFO RE, THE ADDITION OF RS. 39,56,195/- WAS DELETED. THE REVENUE HAS FILED THIS APPEAL BEFORE US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF AO AND SUBMITTED THAT IN SOME OF THE CASES THE VEHICLES NUMBERS DO NOT TALLY. THE LD. SR. DR ALSO SUBMITTED LIST OF 5 TRUCKS AND STATED THAT THESE WERE NOT MAN UFACTURED DURING THE YEAR. 8. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE APPELLAT E AUTHORITY AND SUBMITTED THAT THE AO HAS MERELY RELI ED ON THE INFORMATION AVAILABLE ON WEB-SITE OF M.P. TRANSPORT DEPARTMENT, WHICH CANNOT BE CONSIDERED AS CORRECT, A S SOME OF TRUCK OWNERS HAVE TRANSFERRED THE VEHICLE, HENCE NAME OF NEW OWNERS MAY BE APPEARING IN WEB SITE OF R.T.O. FURT HER, THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE C ONTENDED THAT SOME OF THE VEHICLES WERE SOLD TO ANOTHER PART IES. ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 6 OF 8 THEREFORE, RECORD OF SUCH VEHICLES COULD NOT BE AVA ILABLE AT THE WEB SITE OF M.P. STATE TRANSPORT. SOME OF THE VEHICL ES WERE REGISTERED ON THE LATER PART OF THE YEAR. THEREFORE , THE LIST OF FIVE TRUCK NOS. GIVEN BY SR. DR PERTAINS TO SUCCESS IVE OWNER OF THE VEHICLES, HENCE, HAS NO RELEVANCE THEREFORE, TH E LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION. 9. WE HAVE CONSIDERED THE FACTS AND SUBMISSIONS OF THE PARTIES. WE FIND THAT THE DETAILS SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS WERE GOT VERIFIED BY THE AO , WHEREIN SOME DEFECTS WERE ONLY OBSERVED. THEREFORE, THE LD. CIT(A) AFTER CONSIDERING THE REMAND REPORT IS JUSTIFIED IN DELET ING THE SAID ADDITION. THEREFORE, THERE IS NO VIOLATION OF RULE 46A AS CLAIMED IN GROUND NO. 2 ABOVE. WE DO NOT FIND ANY INFIRMITY THEREIN. ACCORDINGLY, GROUND NOS. 1 AND 2 OF APPEAL ARE DISMISSED. 10. GROUND NO. 3 RELATES TO DELETION OF ADDITION OF RS. 24,52,815/- ON ACCOUNT OF NON-DEDUCTION OF TAX AT S OURCE ON FREIGHT PAYMENT. ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 7 OF 8 11. THE AO HAS MADE ADDITION OF RS. 24,52,815/- ON ACCOUNT OF NON DEDUCTION OF TDS ON FREIGHT PAYMENT. THE AO PURELY RELIED ON THE INFORMATION AVAILABLE ON WEBSI TE OF M.P. TRANSPORT DEPARTMENT ONLY. THE AO HAS MERELY TAKEN THE DETAILS FROM WEB SITE AS ONLY NAME OF TRUCK OWNERS. 12. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS DELETED THE ADDITION. 13. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON TH E ORDER OF THE AO. 14. WE HAVE CONSIDERED THE FACTS AND MATERIALS AVAILABL E ON RECORD. WE FIND THAT THE AO HAS NOT EXAMINED TH E NAMES WITH REGARDS TO FATHERS NAME AND ADDRESS. THE ASSES SEE FURNISHED THE DETAILS ON THE BASIS OF WEB-SITE WHICH SHOWS THAT NONE OF THE TRUCK OWNERS OWN MORE THAN TWO TRUCKS . IT IS NOT OBLIGATORY ON THE PART OF THE ASSESSEE TO DEDUC T THE TDS WHEN NO. OF TRUCK OWNED BY SINGLE PERSON IS NOT MORE THAN TWO. WE, THEREFORE, UPHOLD THE ACTION OF THE LD. CI T(A) AND REJECT THE GROUND NO. 3 OF THE REVENUE. ACIT, UJJAIN VS. SMT. UMA DAGA, DEWAS I.T.A.NO. 696/IND/2015 ASSESSMENT YEAR: 2010-11 PAGE 8 OF 8 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 19 TH OCTOBER, 2016. SD/- (..) (D.T.GARASIA) JUDICIAL MEMBER SD/- (..) (O.P.MEENA) ACCOUNTANT MEMBER * / DATED 19TH OCTOBER, 2016. CPU* 5.19