SHIVSHAKTI TRANSPORT SANGH, THANE V. I.T.O. WD.1, PANVEL

ITA 7515/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3116 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 14-03-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 08-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VISHWAS JADHAVDR
• Assessee Lawyers: REEPAL TRALSHAWALA
• Keywords: Principle of natural justice
• Section: 40A(3); 143(3)

Judgement Text

E IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO.7515 /MUM/2011 ( / ASSESSMENT YEAR : 2005-06) SHIVSHAKTI TRANSPORT SANGH, K.B. AMLANI C.A., 14 MALKANS, LAZRAS RD., CHARAI, THANE (W) 400 602. / V. INCOME TAX OFFICER, WARD 1, PANVEL. ./ PAN : ABBFS 5473-P ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY SHRI REEPAL TRALSHAWALA REVENUE BY : SHRI VISHWAS JADHAV(D.R.) / DATE OF HEARING : 14-03-2016 / DATE OF PRONOUNCEMENT : 13-06-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE-FIRM, BEING ITA NO. 7515/MUM/2011, IS DIRECTED AGAINST THE ORDER DATED 15-06-2011 PASS ED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 1, MUMBAI (HE REINAFTER CALLED THE CIT(A)), FOR THE ASSESSMENT YEAR 2005-06, THE APPE LLATE PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDE R DATED 31-12-2007 PASSED BY THE LEARNED ASSESSING OFFICER (HEREINAFTE R CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961 (HEREINAFTER CALL ED THE ACT). ITA 7515/MUM/2011 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE-FIR M IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL , MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1) YOUR APPELLANT IS VERY MUCH AGGRIEVED WITH THE PA SSING OF ORDER BY CIT (A) 1, THANE UPHOLDING AO'S DISALLOWANCE @20 % U/S. 40A(3) AGREEING WITH AO THAT CASH PAYMENTS ON SUNDAY SUBSTANTIA L & MADE TO TAKE SHELTER UR6DD & THAT PAYMENTS ARE MADE ON SUNDAY IS NOT PROVED, WHERE AS THE FACT IS THAT OUT OF TOTAL TRUCK CH ARGES OF RS. 15418422/- THE CASH PAYMENTS ON SUNDAY ARE RS. 329121 8/- WHICH COMES TO 21 % ONLY OF TOTAL TRUCK CHARGES PAYMENTS AND PAYMENTS MADE ON SUNDAYS VERY WELL PROVED WITH NAME & ADDRESS IN RECEIPTS & ARE ACCOUNTED AND ALSO PAID TDS & FILED TDS RETURN TO DEPARTMENT & ACCOUNTS ARE DULY AUDITED U/S. 44 AB. THE LEARNED A .O. FAILED TO APPRECIATE THE FACT THAT EVEN THOUGH CONSOLIDATED PAYM ENT TO VARIOUS TRANSPORTERS IS REFLECTED IN OUR BOOKS OF ACCOUNTS BUT IN FACT THE PAYMENT WAS ACTUALLY DONE TO VARIOUS TRUCK DRIVERS AN D CLEANERS EMPLOYED BY THE TRANSPORTERS ON VARIOUS TRUCKS PLIE D BY THEM WITH US, FOR MEETING OUT VARIOUS EXPENSES LIKE SALARIES TO TRUCK DRIVERS AND CLEANERS, DIESEL AND TOLL EXPENSES, REPAIRS CARRIED OUT ON THOSE TRUCKS ETC. THUS ONLY A CONSOLIDATED ENTRY CUMULATING PAYMENTS TO VARIOUS TRUCKS DRIVERS EMPLOYED BY THAT TRANSPORTER WAS PASSE D IN HIS ACCOUNT IN OUR BOOKS OF ACCOUNTS. 2) THE LEARNED CIT (A) FAILED TO APPRECIATE THE FACT TH AT THE EXPENSES ARE PROVED GENUINE AND LOOKING TO THE POOR AND AGRICU LTURAL AND ILLITERATE BACK GROUNDS OF THE PARTNERS SOME PAYMENT S THAT TOO 1/5TH OF TOTAL PAYMENTS ARE IN CASH TO SMALL TRUCK OPERATORS U NDER UNAVOIDABLE CIRCUMSTANCES ON SUNDAYS. 3) YOUR APPELLANT REQUEST TO CONSIDER FACTS THAT EXPENSES ARE INCURRED IN ORDINARY COURSE OF BUSINESS DULY ACCOUN TED WITH PAYEE'S NAME & ADDRESS IN RECEIPTS & PROVED GENUINE AND MADE IN CASH UNDER UNAVOIDABLE CIRCUMSTANCES ON SUNDAYS UR6DD AND TO DE LETE THE DISALLOWANCE ADDITION AND GIVE NATURAL JUSTICE. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A FIRM WHICH IS ENGAGED IN THE BUSINESS OF TRANSPORTATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE A.O. OBSERVED FROM THE CASH BOOK THAT THE ASSESSEE-FIRM HAD MADE THE PAYMENT OF TRANSPORTATION CHARGES MOSTLY IN CASH BASIS TO THE FOLLOWING PARTIES:- ITA 7515/MUM/2011 3 SR NO. NAME OF THE PARTY AMOUNT 1 SHRI K.T. MORE RS. 8,63,476/- 2 SHRI PRASHANT SHINDE RS. 7,69,183/- 3 SHRI ABDUL GHARATKAR RS. 3,03,627/- 4 SHRI AMAN GHANA RS. 7,14,095/- 5 SHRI DAYANHI KHAMKAR RS. 7,19,374/- 6 SHRI FAROOQ ARAI RS. 7,38,038/- TOTAL RS. 41,07,793/- THE ASSESSEE-FIRM WAS ASKED BY THE AO TO EXPLAIN TH E REASON FOR PAYMENT MADE IN CASH AND WHY DISALLOWANCE OF 20% OF SUCH EX PENSES AMOUNTING TO RS. 8,21,559/- SHOULD NOT BE MADE U/S 40A(3) OF THE ACT. IN REPLY, THE ASSESSEE-FIRM SUBMITTED THAT OUT OF RS. 41,07,793/- IN CASH EXCEEDING RS. 20,000/-, THE PAYMENT OF RS. 32,91,218/- WAS MADE O N SUNDAY AND IT WAS SUBMITTED THAT THE ASSESSEE-FIRM IS COVERED UNDER R ULE 6DD OF THE INCOME TAX RULES, 1962. IT WAS ALSO SUBMITTED THAT THE PA YMENTS HAVE BEEN MADE IN CASH BECAUSE THE TRUCK OWNERS MOSTLY BELONGS TO RUR AL AREA AND INSIST FOR PAYMENT IN CASH AND SUNDAY BEING THE MARKET DAY, TH E DRIVERS AND CLEANERS ASK ADVANCES FROM THE TRUCK OWNERS. THE A.O. CONSIDERED THE EXPLANATIONS OF THE ASSESSE E-FIRM. THE A.O. OBSERVED THAT THE ASSESSEE-FIRM HAS NOT PRODUCED ANY SUPPORT ING DOCUMENTS TO THE CASH BOOK TO SHOW THAT THE CASH PAYMENTS WERE ACTUA LLY DISBURSED ON SUNDAY SUCH AS BILLS RAISED BY THE TRUCK OWNERS OR RECEIPT OF TRUCK OWNERS. THE ASSESSEE-FIRM CLAIMED THAT THE DRIVERS AND CLEA NERS INSIST ADVANCE PAYMENTS ON SUNDAY , SINCE SUNDAY BEING THE MARKET DAY. THE A.O. OBSERVED THAT THE ASSESSEE-FIRM MAKES PAYMENT TO THE TRUCK O WNERS AND SUBSEQUENTLY THE LORRY OWNERS MAKE THE PAYMENT TO THE DRIVERS AN D CLEANERS. THE A.O. OBSERVED THAT THE ASSESSEE-FIRM HAS RECEIVED THE FR EIGHT RECEIPT FROM ITA 7515/MUM/2011 4 ASHAPURA MINE-CHEM PVT. LTD. THROUGH BANK AND THERE WAS NO NEED FOR HIM TO WITHDRAW THE CASH AND MAKE PAYMENT TO THE LORRY OWNERS IN CASH. THE AO OBSERVED THAT THE OCCASIONAL PAYMENTS ON SUNDAY DUE TO BUSINESS EXPEDIENCY CAN BE ACCEPTED. UNDER THESE CIRCUMSTAN CES, THE A.O. HELD THAT THE TRANSACTION OF THE ASSESSEE-FIRM SHOWS THAT THE PAYMENTS WERE DELIBERATELY SHOWN ON SUNDAY AND THE MITIGATING CIR CUMSTANCES OF THE SAME WERE NOT PROVED BY THE ASSESSEE-FIRM NOR PAYMENTS M ADE ON SUNDAY ARE PROVED . THE A.O. ACCORDINGLY DISALLOWED A SUM OF RS. 8,21,559/- BEING 20% OF THE EXPENSES INCURRED IN CASH EXCEEDING RS. 20,0 00/- U/S 40A(3) OF THE ACT VIDE ASSESSMENT ORDER DATED 31-12-2007 PASSED U/S 1 43(3) OF THE ACT. 4. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 31-12-2 007 PASSED U/S. 143(3) OF THE ACT BY THE A.O., THE ASSESSEE-FIRM HAS FILED ITS FIRST APPEAL BEFORE THE LEARNED CIT(A). 5. BEFORE THE LEAARNED CIT(A) , THE ASSESSEE-FIRM C ONTENDED THAT THE FIRM IS FORMED OF 19 PARTNERS, ALL ARE ILLITERATES AND A GRICULTURISTS AND THE ASSESSEE-FIRM HAS ENTERED INTO CONTRACT AGREEMENT W ITH M/S ASHAPURA MINE- CHEM PVT. LTD. FOR TRANSPORTATION OF GOODS AND OUT OF RS. 1,54,18,422/- OF TRANSPORTATION CHARGES RECEIVED BY THE ASSESSEE-FIR M, THE ASSESSEE-FIRM HAD PAID TRANSPORTATION CHARGES IN CASH OF RS. 41,07,79 3/- OUT OF WHICH RS.32,91,218/- WAS MADE ON SUNDAY UNDER UNAVOIDABLE CIRCUMSTANCES WITHIN EXCEPTIONS PROVIDED UNDER RULE 6DD OF INCOME TAX RULES,1962. THE ASSESSEE-FIRM SUBMITTED THAT SUNDAY BEING THE MARKE T DAY, THE TRUCK DRIVERS AND CLEANERS INSISTED CASH PAYMENTS FROM THE TRUCK OWNERS WHO IN TURN DEMAND FROM THE ASSESSEE-FIRM AND TO MAINTAIN TRUCK OWNERS TO OPERATE REGULARLY FOR THE ASSESSEE-FIRM, CASH PAYMENTS WERE MADE TO ACCOMMODATE TRUCK OWNERS IN SUCH EMERGENCIES AND TDS WAS DEDUCT ED AND PAID TO GOVERNMENT ACCOUNT ON TIME . THE ASSESSEE-FIRM SUB MITTED THAT SINCE THE CLAIM OF THE ASSESSEE-FIRM IS COVERED UNDER EXCEPT IONS PROVIDED UNDER RULE ITA 7515/MUM/2011 5 6DD OF INCOME TAX RULE, 1962, NO DISALLOWANCE U/S 4 0A(3) OF THE ACT IS WARRANTED. IN SUPPORT, THE ASSESSEE-FIRM RELIED UP ON THE FOLLOWING DECISIONS:- 1. AMAR GINNING & OIL MILLS V. ITO, (1989) TAXATION 9 3(4)-76(CHD TRIB.) 2. ITAT MADRAS BENCH IN THE CASE OF TAJ TRADING CO. V. ITO (1989) 35TTJ (MAD-TRIB) 296. 3. GIRDHARILA GOENKA V. CIT (1989) 179 ITR 122(CAL.) 4. CIT V. ALOO SUPPLY CO. (1980) 121 ITR 680 (ORI) 5. CIT V. TRIVENIPRASAD PANNALAL (1997) 228 ITR 680 (M .P) 6. CIT V. ASHISH COAL COKE TRADERS (1987) 163 ITR 174 (MP) 7. NAVJIVAN SYNTHETICS V. ACIT (2002) 168 TAXATION 5 ( AHD-TRIB) 8. WESTERN INDIAN BAKERS V. DCIT (2003) 87 ITD 607 (MU M-TRIB) 9. SHREE MAHAVEER CORPORATION V. ITO (2002) 258 ITR (A T) 55 (BANG TRIB) 10. CIT V. P. PRAVIN & CO. (2005) 6(1) ITCL 21 (GUJ HC) , (2005) 274 ITR 534 (GUJ). 11. CIT V. RAJA PAL AUTOMOBILES (2010) 320 ITR 185. THE LEARNED CIT(A) CONSIDERED THE SUBMISSIONS OF TH E ASSESSEE-FIRM AND THE CASE LAWS RELIED UPON BY THE ASSESSEE-FIRM. THE LE ARNED CIT(A) OBSERVED THAT THE ASSESSEE-FIRM MADE PAYMENTS BY CASH TO SIX PART IES WHICH ARE QUITE SUBSTANTIAL AND IT WAS VERY MUCH UNLIKELY THAT DUE TO COMPULSION THE ASSESSEE-FIRM MADE CASH PAYMENTS ON SUNDAYS. THE L EARNED CIT(A) OBSERVED THAT IT WAS ALSO NOT CLEAR WHETHER THE RECIPIENT HA D ADMITTED THE RECEIPTS IN THEIR RESPECTIVE RETURNS OF INCOME FILED WITH THE R EVENUE. DURING ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 143(2) OF THE ACT, THE ASSESSEE-FIRM COULD NOT FURNISH ANY DETAILS TO SUBSTANTIATE THE C LAIM THAT THE PAYMENTS WERE MADE ON SUNDAYS. THE LEARNED CIT(A) OBSERVED THAT THERE WERE NUMEROUS INSTANCES OF CASH PAYMENTS TO SAME PARTIES . THUS, THE PAYMENTS ITA 7515/MUM/2011 6 HAVE BEEN MADE DELIBERATELY TO ATTRACT EXCEPTION PR OVIDED UNDER RULE 6DD OF THE INCOME TAX RULES, 1962 AND IN THE LIGHT OF THE ABOVE FINDING, THE LEARNED CIT(A) AGREE WITH THE FINDING THAT DISALLOWANCE @ 2 0% BY INVOKING THE PROVISIONS OF SECTION 40A(3) OF THE ACT IS VERY MUC H WITHIN THE POWER OF THE A.O. AND THE ADDITIONS MADE U/S 40A(3) READ WITH RU LE 6DD OF INCOME TAX RULES, 1962 BY THE AO WERE UPHELD AND SUSTAINED BY THE LEARNED CIT(A) VIDE APPELLATE ORDERS DATED 15-06-2011 PASSED BY THE LEA RNED CIT(A). 6.AGGRIEVED WITH THE APPELLATE ORDERS DATED 15.06.2 011 OF THE LEARNED CIT(A), THE ASSESSEE-FIRM IS IN SECOND APPEAL BEFORE THE TR IBUNAL. 7. THE LEARNED COUNSEL FOR THE ASSESSEE-FIRM SUBMIT TED THAT THE DISALLOWANCE WERE MADE U/S 40A(3) OF THE ACT BY THE A.O. AS THE CASH PAYMENTS OF RS. 41,07,793/- WERE MADE TO VARIOUS TR ANSPORTERS, WHICH INCLUDED PAYMENT OF RS. 32,91,218/- ON SUNDAY. THE LEARNED COUNSEL SUBMITTED THAT OUT OF TOTAL PAYMENT OF RS. 1,54,18, 422/- FOR TRANSPORTATION CHARGES , THE ASSESSEE-FIRM PAID RS. 41,07,793/- ON CASH BASIS TOWARDS TRANSPORTATION CHARGES. THE LEARNED COUNSEL SUBMITT ED THAT DUE TDS WAS DEDUCTED BY THE ASSESSEE-FIRM AND PAID INTO THE GOV ERNMENT ACCOUNT IN TIME. CONFIRMATIONS FROM THE PARTIES WERE FILED AND THE B OOKS OF ACCOUNT WERE AUDITED. ALL THE PAYMENTS ARE SUBJECTED TO TDS. T HE DRIVERS AND CLEANERS ASKED PAYMENTS FOR PURCHASE OF PETROL/DIESEL ON SUN DAYS , AND SUNDAY BEING CLOSED HOLIDAY FOR BANK, CASH PAYMENTS WERE MADE TO THE TRANSPORTERS. THE LD. COUNSEL RELIED ON THE DECISION OF THE AHMEDABA D BENCH OF THE TRIBUNAL IN THE CASE OF ACIT V. SHRI NILESH G. GADHIYA IN ITA N O. 2030/AHD/2012 FOR THE ASSESSMENT YEAR 2009-10, ORDERS DATED 23 RD NOVEMBER, 2012 AND ALSO DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT V. M/S CONTINENTAL CARRIERS OF INDIA IN ITA NO. 3248 & 324 9/DEL/2010 FOR ASSESSMENT YEARS 2004-05 & 2005-06 DATED 19 TH AUGUST, 2011. THE LD. COUNSEL SUBMITTED THAT GENUINENESS OF THE TRANSACTI ON IS NOT DOUBTED AND ITA 7515/MUM/2011 7 REQUESTED THAT THE DISALLOWANCE U/S 40A(3) OF THE A CT SHOULD NOT BE MADE AND APPEAL BE ALLOWED. 8. THE LD. D.R. SUBMITTED THAT THE ASSESSEE-FIRM HA S NOT SUBMITTED ANY SUPPORTING DOCUMENTS TO PROVE THE CIRCUMSTANCES UND ER WHICH THE PAYMENTS HAVE BEEN MADE ON SUNDAYS. HE RELIED ON THE ORDER OF LEARNED CIT(A). 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THA T THE FIRM IS FORMED OF 19 PARTNERS, ALL ARE STATED TO BE ILLITERATES AND AGRI CULTURISTS AND THE ASSESSEE- FIRM HAS ENTERED INTO CONTRACT AGREEMENT WITH M/S A SHAPURA MINE-CHEM PVT. LTD. FOR TRANSPORTATION OF GOODS. THE ASSESSEE-FIR M MADE PAYMENTS FOR TRANSPORTATION CHARGES TO TRUCK OWNERS IN CASH OF R S.41,07,793/- . THE ASSESSEE-FIRM CLAIMED THAT THE PAYMENTS HAVE BEEN M ADE TO THE TRUCK DRIVERS AND CLEANERS FOR AND ON BEHALF OF THE TRUCK OWNERS FOR REIMBURSEMENT OF PETROL/DIESEL CHARGES ETC. AS THEY INSISTED FOR CAS H PAYMENTS AND UNDER THESE CIRCUMSTANCES THE ASSESSEE-FIRM MADE CASH PAYMENTS ON SUNDAYS OF RS.32,91,218 OUT OF TOTAL CASH TRANSPORTATION CHARG ES OF RS.41,07,793/-, BECAUSE SUNDAY IS THE MARKET DAY. WE HAVE OBSERVED THAT THE ASSESSEE-FIRM WAS NOT ABLE TO FILE COMPLETE DETAILS TO PROVE AND SUBSTANTIATE THAT THE CIRCUMSTANCES UNDER WHICH THE PAYMENTS WERE MADE ON SUNDAY WHEREBY THE ASSESSEE-FIRM WAS COMPELLED TO MAKE PAYMENTS ON SUN DAY AS CONTEMPLATED UNDER EXCEPTIONS TO RULE 6DD OF INCOME TAX RULES, 1 962.THE PLEA HAS BEEN MADE THAT THE TRUCK DRIVERS AND CLEANERS INSIST ON CASH PAYMENTS AND SUNDAY BEING MARKET DAY AND THE BANKS ARE CLOSED ON SUNDAY, IS A BALD STATEMENT MADE BY THE ASSESSEE-FIRM WHICH REQUIRES CORROBORATION TO SUBSTANTIATE AND PROVE THE CASE OF THE ASSESSEE-FIR M TO TAKE IT OUT OF RIGOURS AND CLUTCHES OF PROVISIONS OF SECTION 40A(3) OF THE ACT AND TO FALL UNDER EXCEPTIONS PROVIDED U/R 6DD OF INCOME TAX RULES,196 2. IT IS ALSO OBSERVED THAT WITH RESPECT TO THESE SIX PARTIES AS PER CONFI RMATION LETTERS FILED, NO ITA 7515/MUM/2011 8 PAYMENTS TO THESE SIX PARTIES HAVE BEEN MADE DURING THE ENTIRE PREVIOUS YEAR BY CHEQUE/DD AND ENTIRE PAYMENTS WERE MADE TO THESE SIX PARTIES IN CASH EXCEPT ONLY TWO PAYMENT OF RS.55166/- TO K T MORE O N 21-03-2005 AND RS.10704/- TO FAROOKH ARAI ON 24-03-2005, WHICH CAS T DOUBTS ON THE THEORY OF INSISTENCE BY TRUCK DRIVERS AND CLEANERS INSISTI NG ON CASH PAYMENTS ON SUNDAY BEING MARKET DAY WHILE BANKS ARE CLOSED ON S UNDAYS, WHILE IT COULD NOT BE SAID THAT THE ENTIRE PAYMENTS TO TRUCK OWNER S HAVE GONE TOWARDS PAYMENTS TO DRIVERS AND CLEANERS AND THERE ARE NO O THER ELEMENT OF COSTS AND PROFITS IN THE BILLING BY THE TRUCK OWNERS TO THE A SSESSEE-FIRM. THE ENTIRE TAX DEDUCTED AT SOURCE BY THE ASSESSEE ON TRANSPORTATI ON CHARGES PAID IS SHOWN TO BE PAID IN THE MONTH OF MARCH 2005 FOR THE ENTIR E YEAR AND IT COULD NOT BE CLAIMED THAT THE TAX DEDUCTED AT SOURCE WAS PAID IN TIME WITHIN THE TIME LIMIT PROVIDED UNDER CHAPTER XVIIB OF THE ACT, MORE-OVER, PROOF OF FILING OF TDS RETURNS WITH THE REVENUE WHEREBY THERE IS COMPLETE DISCLOSURES WITH PAN ETC OF PAYEES HAS NOT BEEN BROUGHT ON RECORD. THE AS SESSEE-FIRM HAS TAKEN A PLEA AND CONTENDED THAT EACH PAYMENT IN A DAY TO TH E PAYEES IS LESS THAN RS 20000/- AND THE CASE IS COVERED UNDER EXCEPTION AS PROVIDED U/R 6DD OF INCOME TAX RULES, 1962 AS THE INDIVIDUAL PAYMENT IN A DAY IS TO BE RECKONED SEPARATELY FOR CONSIDERING EXCEPTION U/R 6DD OF IN COME TAX RULES, 1962 AND NOT AGGREGATE PAYMENTS IN A DAY WHICH IS SUPPORTED BY THE DECISIONS RELIED UPON BY THE ASSESSEE-FIRM AS SET-OUT ABOVE, BUT THE ASSESSEE-FIRM HAS TO BRING ON RECORD COGENT EVIDENCES TO SUBSTANTIATE TH E SAME PLEA WHICH NEED EXAMINATION AND VERIFICATION BY THE AUTHORITIES BEL OW. IT IS INCUMBENT FOR THE ASSESSEE-FIRM TO BRING ON RECORD THE EVIDENCES AND CIRCUMSTANCES TO PROVE ITS CASE THAT IT FALLS UNDER THE EXCEPTION TO SECTION 4 0A(3) OF THE ACT PROVIDED U/R 6DD OF INCOME TAX RULES,1962. KEEPING IN VIEW THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER NEEDS TO BE SET-ASIDE AND RESTORED BACK TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION ON MERITS BASED UPON THE EVIDENCES AND EXPLANATIONS FILED BY THE ASSESSEE-FIRM TO SUBSTANTIATE AND CORROBORATE I TS PLEAS WHICH NEED ITA 7515/MUM/2011 9 EXAMINATION AND VERIFICATION BY THE AUTHORITIES BEL OW. ACCORDINGLY WE SET ASIDE THIS MATTER TO THE FILE OF THE A.O. AND DIREC T THE A.O. TO SCRUTINIZE THE EVIDENCES AND EXPLANATIONS FILED BY THE ASSESSEE FI RM AND EVALUATE THE ATTRACTION OF PROVISIONS OF SECTION 40A(3) OF THE A CT READ WITH EXCEPTIONS AS PROVIDED UNDER RULE 6DD OF INCOME TAX RULES, 1962 A ND DE NOVO RE- DETERMINE THE MATTER IN ACCORDANCE WITH LAW AND JUD ICIAL PRECEDENTS . THE ASSESSEE-FIRM IS ALSO DIRECTED TO PRODUCE NECESSARY EVIDENCES AND EXPLANATION BEFORE THE A.O. IN ITS DEFENSE WHICH SHALL BE ADMIT TED BY THE AO FOR EXAMINATION AND VERIFICATION OF THE ASSESSEE-FIRM C ONTENTIONS. NEEDLESS TO SAY THE A.O SHALL PROVIDE PROPER AND SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE ASSESSEE-FIRM IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE IN ACCORDANCE WITH LAW. WE ORDER ACCORDINGLY. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE -FIRM IN ITA N0. 7515/MUM/2011 FOR THE ASSESSMENT YEAR 2005-06 IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JUNE , 2016. # $% &' 13-06-2016 ( ) SD/- SD/- (C.N.PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 13-06-2016 [ ITA 7515/MUM/2011 10 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI E BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI