DCIT, Firozabad v. Shri Avneesh Kumar Singh Prop M/s Krishna Bulk Movers, Firozabad

ITA 431/AGR/2009 | 2006-2007
Pronouncement Date: 23-11-2011 | Result: Dismissed

Appeal Details

RSA Number 43120314 RSA 2009
Assessee PAN ADJPS1069D
Bench Agra
Appeal Number ITA 431/AGR/2009
Duration Of Justice 2 year(s) 1 month(s)
Appellant DCIT, Firozabad
Respondent Shri Avneesh Kumar Singh Prop M/s Krishna Bulk Movers, Firozabad
Appeal Type Income Tax Appeal
Pronouncement Date 23-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 23-11-2011
Date Of Final Hearing 21-11-2011
Next Hearing Date 21-11-2011
Assessment Year 2006-2007
Appeal Filed On 23-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI H.S. SIDHU JUDICIAL MEMBER AND SHRI B.P. JAIN ACCOUNTANT MEMBER ITA NO.431/AGR/2009 ASSESSMENT YEAR: 2006-07 DY. COMMISSIONER OF INCOME TAX VS. SHR I AVNEESH KUMAR SINGH CIRCLE-5 FOROZABAD. PROP. M/S KRISHNA BULK MOVERS 76 CHAUBEY JI KA BAGH FIROZABAD. (PAN: ADJPS 1069 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA JR. D.R. RESPONDENT BY : SHRI K.C. AGARWAL ADVOCATE DATE OF HEARING : 21.11.2011 DATE OF PRONOUNCEMENT : 23.11.2011 ORDER PER BENCH : THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF LD. CIT(A)-II AGRA DATED 17.07.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- ITA NO.431/AGR/2009 A.Y. 2006-07 2 1. THAT THE LEARNED CIT(A)-II AGRA HAS ERRED IN L AW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.77 90 307/- MADE BY THE ASSESSING OFFICER BY HOLDING THAT SIMILAR ADDITION WAS DELETE D LAST YEAR ON IDENTICAL GROUNDS IGNORING THE FACT THAT THE PROVIS IONS OF SECTION 194C ARE CLEARLY ATTRACTED IN THIS CASE AND NON DEDUCTIO N OF TDS WAS A DEFAULT ON THE APART OF THE ASSESSEE AND THE PROVIS IONS OF SECTION 40(IA) ARE ATTRACTED. 2. THAT THE LEARNED CIT(A)-II AGRA HAS ERRED IN LA W AND ON FACTS IN DELETING THE ADDITION OF RS.1 47 841/- MADE BY T HE ASSESSING OFFICER ON ACCOUNT OF DIFFERENCE IN THE AMOUNTS OF PAYMENTS RECEIVED AS PER TDS CERTIFICATES AND AS PER ACCOUNTS OF THE ASSESSE E BY HOLDING THAT ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE A DDITION AND IGNORING THE FULL FACTS NARRATED IN THE BODY OF THE ASSESSMENT ORDER. 3. THAT THE ORDER OF THE LEARNED CIT(A)-II AGRA BE ING ERRONEOUS IN LAW AND ON FACTS BE QUASHED AND THAT OF THE ASSE SSING OFFICER BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUND OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT AT THE TIME OF HEARING OF APPEAL. 3. AS REGARDS GROUND NO.1 OF THE REVENUE THE BRIEF FACTS AS APPEARING FROM THE ORDER OF THE A.O. ARE AS UNDER :- (I) 'AS PER COPY OF AGREEMENT DATED 01.01.2003 ENTE RED INTO BY THE ASSESSEE WITH M/S SHV ENERGY PVT. LTD. FILED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS THERE IS A CLEAR STIPULATION THAT THE ASSESSEE WILL TRANSPORT LPG FROM DIFFERENT PLACES O F INDIA TO DIFFERENT PLACES OF INDIA ON THE FREIGHT RATE AS MENTIONED IN ANNEXURE TO THAT CONTRACT AGREEMENT AND AS PER PARA-2 OF THAT AGREEM ENT THE ASSESSEE HAS UNDERTAKEN TO TRANSPORT LPG IN BULK BY TRUCKS I N ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE SAID AGREEMENT. IT WAS THE ASSESSEE ITA NO.431/AGR/2009 A.Y. 2006-07 3 WHO HAD ENTERED INTO CONTRACT AND TRANSPORTED LPG I N ACCORDANCE WITH THE TERMS OF THE AGREEMENT. (II) THE ASSESSEE HAS RAISED BILLS OF FREIGHT FOR T RANSPORTATION OF LPG BY OWNED AS WELL AS BY THE HIRED TANKERS. THE ASSESSE E HAS MAINTAINED TWO ACCOUNTS I.E. M/S SHV ENERGY PVT. LTD (CYLINDER ). BOTH THE ACCOUNTS HAVE BEEN DEBITED ON ACCOUNT OF BILLS OF F REIGHT. THE FIRST ACCOUNT OF M/S. SHV ENERGY PVT. LTD. HAS BEEN DEBIT ED BY RS.1 24 09 032.57 AND THE OTHER ACCOUNT BY RS.17 46 838.99. THUS THE AMOUNT DEBITED AGGREGATED TO RS.1 41 55 871.56. (III) THE COPY OF ACCOUNT IN THE BOOKS OF M/S SHV ENERGY PVT. LTD. WAS REQUISITIONED U/S 133(6) AND AS PER COPY OF ACCOUNT OF THE ASSESSEE FURNISHED BY THEM AS PER THEIR BOOKS FURNISHED VIDE LETTER DATED 04.11.2008 THE ACCOUNT OF THE ASSESSEE HAS BEEN CR EDITED RS.1 35 76 495.97 ON ACCOUNT OF BILLS OF FREIGHT RA ISED BY THE ASSESSEE. (IV) ALL THE PAYMENTS HAVE BEEN MADE TO THE ASSESS EE BY M/S SHV ENERGY PVT. LTD WHICH IS EVIDENT FROM THE COPY OF ACCOUNT MAINTAINED IN THE BOOKS OF THE ASSESSEE AS WELL AS COPY OF ACCOUNT OF ASSESSEE IN THE BOOKS OF M/S SHV ENERGY PVT. LTD. (V) THE ENTIRE RECEIPTS ON ACCOUNT OF FREIGHT HAVE BEEN CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH HDFC B ANK AGRA. ALL THE ABOVE FACTS UNDOUBTEDLY PROVED THAT ASSESSE E HAD EXECUTED TRANSPORT CONTRACT WITH M/S SHV ENERGY PVT. LTD. RAISED BILLS OF FREIGHT TO THE COMPANY RECEIVED FREIGHT CHARGES FROM THE COMPANY. IT IS THEREFORE ESTABLISHED THAT TRANSPORT CONTRACT WAS EXECUTED BY THE ASSESSEE TDS ON CONTRACT WORK WAS MADE BY M/S SHV ENERGY PVT. LTD. HE WAS THEREFORE CONTRACTOR OF M/S SHV ENERGY (P) LTD. WITHIN THE ME ANING OF SECTION 194C OF THE I.T. ACT. NOW VERY IMPORTANT QUESTION ARISES WHETHER THE GOOD S CARRIER (TANKER) OWNERS WERE SUBCONTRACTORS WITHIN THE MEAN ING OF SECTION 194C AND ASSESSEE WAS UNDER OBLIGATION TO DEDUCT TAX ON AMOUNTS CREDITED TO THEIR ACCOUNT OR PAID TO THEM. THE PROVISIONS OF S ECTION 194C(1) CLEARLY PROVIDE THAT THE PERSONS RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK SHALL DEDUCT TAX AT SOURCE AT THE TIME OF CREDIT OF SUCH ITA NO.431/AGR/2009 A.Y. 2006-07 4 SUM TO THE ACCOUNT OF THE CONTRACTOR OR AT THE TIME OF PAYMENT THEREOF WHICHEVER IS EARLIER. THE ASSESSEE'S TURNOVER WAS M ORE THAN RS.40 LACS AND AS SUCH HE WAS CLEARLY WITHIN THE DEFINITION OF PE RSON RESPONSIBLE AS PER PROVISO TO SUB-SECTION 2 OF SECTION 194C. THE EXPR ESSION 'WORK' INCLUDES CARRIAGE OF GOODS BY ANY MODE OF TRANSPORT OTHER TH AN BY RAILWAYS AS DEFINED IN CLAUSE (C) OF EXPLANATION 111 BELOW SUB- SECTION 2 OF SECTION 194C. AS SUCH THE HIRING OF GOODS CARRIAGES BY THE ASSESS EE WAS SUB-CONTRACT WITHIN THE MEANING OF SECTION 194C AND THE RESPECTI VE TANKER OWNERS WERE SUB-CONTRACTORS FOR THE ASSESSEE. THE AMOUNTS CREDI TED TO THE ACCOUNTS OF THE RESPECTIVE TANKER OWNERS WAS EXCEEDING RS.50 000/- IN THE RELEVANT YEAR AND THEREFORE THE SUMS CREDITED WERE NOT EXEMPT FROM T DS AS THE ASSESSEE HAS NOT OBTAINED ANY FORM NO.15-1 FROM THE RESPECTIVE T ANKER OWNERS. IN THE FACTS AND CIRCUMSTANCES THE ASSESSEE WAS CLEARLY A CONTRACTOR OF M/S SHV ENERGY PVT. LTD. AND RESPECTIVE TANKER OWNERS WERE SUB-CONTRACTOR FOR THE ASSESSEE. THE ASSESSEES TURNOVER WAS EXCEEDING RS. 40 LACS REGARDLESS OF THE STATUS OF THE ASSESSEE HE WAS UNDER OBLIGATION TO DEDUCT TAX AS PER PROVISIONS OF SECTION 194C. THE SUMS CREDITED TO T HE ACCOUNT OF RESPECTIVE TANKER OWNERS OR THE SUM PAID AT ONE TIME WAS EXCEE DING RS.20 000/- OR THE TOTAL SUMS CREDITED/PAID IN THE RELEVANT YEAR WERE EXCEEDING RS.50 000/- THE SUMS CREDITED/PAID WERE THEREFORE NOT EXEMPT FROM DEDUCTION OF TAX AT SOURCE. NOW THE NEXT QUESTION ARISES WHETHER THE AMOUNTS CR EDITED TO THE ACCOUNT OF RESPECTIVE TANKER OWNERS WAS EXPENDITURE WITHIN THE MEANING OF ACT. AS ALREADY MENTIONED THE ASSESSEE HAD ENTERED INTO CONTRACT AGREEMENT FOR TRANSPORTATION OF LPG FROM DIFFERENT PLACES OF INDIA TO THE DIFFERENT PLACES OF INDIA ON FREIGHT CHARGES AS AGREED UPON V IDE ANNEXURE TO THE CONTRACT AGREEMENT. AS PER THAT CONTRACT AGREEMENT SAFE AND SECURED TRANSPORT OF LPG AND ITS DELIVERY TO THE DESTINATIO N PLACES WAS SOLE RESPONSIBILITY OF THE ASSESSEE. IT WAS THE ASSESSE E WHO HAS TRANSPORTED GAS RAISED BILL TO THE COMPANY FOR TRANSPORT OF GAS DE BITED THE ACCOUNT OF M/S SHV ENERGY PVT. LTD. AGAINST BILLS OF FREIGHT RAISE D BY HIM THE COMPANY HAS ALSO CREDITED THE ACCOUNT OF THE ASSESSEE BY THE BI LLS OF ENTIRE FREIGHTS. ALL THE PAYMENTS HAVE BEEN MADE TO THE ASSESSEE AND THE ASSESSEE'S ACCOUNT HAS BEEN DEBITED BY M/S SHV ENERGY PVT. LTD. AGAINST PA YMENT OF ENTIRE FREIGHT. THE AMOUNTS OF FREIGHT HAVE BEEN CREDITED TO THE AC COUNT OF THE ASSESSEE IN HDFC BANK AGRA. THE ASSESSEES SEVEN TANKERS WERE BEING USED FOR TRANSPORT OF LPG UNDER CONTRACT BUT ON 28.6.2005 HE SOLD OUT SEVEN TANKERS TO HINDUSTAN LPG DELIVERIES PVT. LTD. NEW DELHI BU T THOSE TANKERS ITA NO.431/AGR/2009 A.Y. 2006-07 5 CONTINUED IN TRANSPORTATION OF LPG AS PER CONTRACT BETWEEN THE ASSESSEE AND M/S SHV ENERGY PVT. LTD. THE ASSESSEE HAD BEEN CREDITING FREIGHT RECEIVABLE ACCOUNT BY THE BILLS OF FREIGHT IN RESPE CT OF ABOVE TANKERS AND AFTER THE TANKERS WERE TRANSFERRED TO HINDUSTAN LPG DELIVERIES PVT. LTD. HE STARTED CREDIT THE ACCOUNT OF HINDUSTAN LPG DELIVER IES PVT. LTD. BY THE AMOUNT OF FREIGHT IN RESPECT OF TANKERS SOLD OUT TO IT. SIMULTANEOUSLY THE ASSESSEE OPENED ANOTHER ACCOUNT IN HIS BOOKS OF ACC OUNT AS HINDUSTAN LPG DELIVERIES (COMMISSION) AND STARTED TO DEBIT T HE ACCOUNT BY AMOUNT WHICH WORKS OUT TO 10% OF THE AMOUNTS CREDITED TO T HE ACCOUNT OF HINDUSTAN LPG DELIVERIES PVT. LTD. (FREIGHT). THE HINDUSTAN L PG DELIVERIES PVT. LTD. (FREIGHT) ACCOUNT HAS BEEN DEBITED BY THE AMOUNTS P AID OUT OF BANK ACCOUNT OF THE ASSESSEE WITH HDFC BANK AGRA AND BY AMOUNTS OF COMMISSION AS CLAIMED BY THE ASSESSEE. BY ADOPTING THIS PECULIAR SYSTEM OF ACCOUNTING THE ASSESSEE HAS HAD NOT TO DEBIT THE TRADING AND PROFI T & LOSS ACCOUNT BY THE AMOUNTS OF EXPENDITURES INCURRED IN RESPECT OF OTHE R TANKERS AND THE AMOUNTS PAID TO RESPECTIVE OWNERS OF THOSE TANKERS. HOWEVER SINCE THE ASSESSEE HAS PAID THE AMOUNT TO THE RESPECTIVE TANK ER OWNERS OUT OF FREIGHT RECEIVED FROM SHV ENERGY PVT. LTD. IT WAS CLEARLY E XPENDITURE IN THE HANDS OF THE ASSESSEE. THE CHARGE OF COMMISSION ON FREIG HT IS MERELY AN ARGUMENT AS HINDUSTAN LPG DELIVERY (P) LTD. HAS NOT MADE ANY TDS U/S 194H ON COMMISSION AS CLAIMED BY THE ASSESSEE. AS STATED ABOVE THE AMOUNTS PAID TO RESPECTIVE TANK ER OWNERS WERE EXPENDITURE IN THE HANDS OF THE ASSESSEE WITHIN THE MEANING OF ACT HE WAS UNDER LEGAL OBLIGATION TO SUBJECT THOSE EXPENDITURE S TO TDS AS PER PROVISIONS OF SECTION 194C AS THE ACTIVITY OF TRANS PORTATION WAS WORK AS DEFINED IN CLAUSE (C) OF EXPLANATION-ILL BELOW SUB- SECTION-2 OF SECTION 194C. THE ASSESSEE HAS NOT OBTAINED ANY DECLARATION IN FO RM NO.151 AND THEREFORE THE PAYMENTS TO RESPECTIVE TANKERS OWNER S WERE NOT EXEMPT FROM TDS U/S. 194C. THUS THERE WAS DEFAULT ON THE PART O F THE ASSESSEE IN DEDUCTION OF TAX AT SOURCE U/S. 194C. SECTION 40(A )(IA) PROVIDES THAT ANY PAYMENT WILL NOT BE ALLOWED AS EXPENDITURE IF ANY O F THE PROVISIONS GOVERNING TDS ARE APPLICABLE TO THAT PAYMENT AND NO TDS HAS BEEN MADE OR AFTER MAKING TDS IT HAS NOT BEEN PAID WITHIN THE PERIOD PRESCRIBED BY THE ACT OR WITHIN THE PREVIOUS YEAR TO THE CREDIT OF GO VT. ACCOUNT. IN THIS CASE THE ASSESSEE HAS CLEARLY DENIED TO HAVE MADE ANY TDS ON SUCH PAYMENTS. THE ASSESSEE WAS UNDER OBLIGATION TO DEDUCT TAX AT SOUR CE OF AMOUNT OF RS.74 15 414.66 CREDITED TO THE ACCOUNT OF HINDUSTA N LPG DELIVERIES PVT. LTD. WHICH HE HAS NOT DONE. MOREOVER THE AMOUNT O F RS.2 47 708/- HAS ITA NO.431/AGR/2009 A.Y. 2006-07 6 BEEN CREDITED TO THE ACCOUNT OF SHRI PRAVEEN KUMAR AN AMOUNT OF RS 87 184/- TO THE ACCOUNT OF ANJALI GOYAL AND A SUN O F RS.40 000/- HAS BEEN PAID TO SH. BABLA DAS (PROP. SHRI KRISHNA ROADWAYS) ON 22.07.2005. NO TDS HAS BEEN MADE ON THESE AMOUNTS WHICH WERE CLEAR LY HIT BY SECTION 194C. THUS TOTAL PAYMENTS OF RS.77 90 306.66 OR RS .77 90 307/- HAVE BEEN MADE WITHOUT MAKING TDS U/S. 194C. SINCE THE ABOVE AMOUNTS OF FREIGHT HAVE BEEN CREDITED TO THE ACCOUNT OF RESPECTIVE TAN KER OWNERS OR HAVE BEEN PAID TO THE RESPECTIVE TANKER OWNER WITHOUT MAKING TDS IN ACCORDANCE TO PROVISIONS OF SECTION 194C THE EXPENDITURE ARE CLE ARLY DISALLOWABLE U/S. 40(A)(IA) OF THE I.T. ACT. HENCE THE ENTIRE AMOUNT OF RS.77 90 307/- IS DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSE SSEE. 4. BEFORE THE LD. CIT(A) THE ASSESSEE FILED WRITTEN REPLY ALONG WITH VARIOUS DETAILS AND DOCUMENTS AVAILABLE AT PARAGRAPH NO.1.2 OF CIT(A) S ORDER. THE LD. CIT(A) SENT THE WRITTEN SUBMISSION AND OTHER DETAIL S TO THE A.O. FOR HIS COMMENTS VIDE LETTER DATED 02.04.2009. THE A.O. IN HIS REMA ND REPORT REPEATED THE SAME FACTS AS NARRATED IN THE ASSESSMENT ORDER AND OBSER VED THAT THESE EXPENSES ARE NOT ALLOWABLE UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT 1961. COPY OF THE REMAND REPORT SUBMITTED BY THE A.O. WAS SENT TO THE ASSESSEE FOR THE REJOINDER. THE ASSESSEE VIDE HIS REJOINDER DATED 24.06.2009 SU BMITTED BEFORE THE LD. CIT(A) WHICH IS AVAILABLE AT PARAGRAPH NO.1.4 OF THE LD. C IT(A) S ORDER. VIDE PARAGRAPH NOS.1.5 TO 1.8 THE LD. CIT(A) OBSERVED THAT THE AS SESSEE HAD MAINTAINED THE DETAILED RECORDS REGARDING PLYING OF OWN TRUCKS AND PLYING OF TRUCK ON COMMISSION BASIS. HE ALSO OBSERVED THAT EXPENSES OF PLYING OF TRUCKS OF PRINCIPALS ARE NOT INCURRED BY ASSESSEE BUT THEY ARE DEBITED TO TRUCK ACCOUNTS OF PRINCIPALS AND THEN ITA NO.431/AGR/2009 A.Y. 2006-07 7 ADJUSTED AGAINST FINAL PAYMENT OF FREIGHT EARNED BY THEM. IN CASE OF HINDUSTAN DELIVERY NO EXPENSES OF RUNNING OF TRUCK ARE BORNE BY THE ASSESSEE AND THEY ARE MET BY THEMSELVES THEN AMOUNT OF COMMISSION CHARGE IS DEBITED TO THEIR ACCOUNTS. THEREAFTER THE REMAINING AMOUNT OF FREIGHT OF THEI R TRUCK IS PAID BY THE ASSESSEE. THIS IS A REGULAR SYSTEM OF ACCOUNTING FOLLOWED BY THE ASSESSEE SINCE LONG. THEREFORE THE ASSESSEE HAS NOT CLAIMED ANY EXPENDI TURE OF TRUCK PLYING OF PRINCIPAL PLIED ON COMMISSION BASIS AND NOT LIABLE FOR DEDUCTION OF TDS U/S. 194(C) AND SECTION 40(A)(IA) IS NOT APPLICABLE IN A SSESSEES CASE. ON THE SIMILAR ISSUE IN THE ASSESSEES OWN CASE IN THE PRECEDING Y EAR SUCH ADDITION WAS MADE BY THE A.O. WHICH WAS DELETED BY THE LD. CIT(A) ON IDE NTICAL GROUND. CONSIDERING ALL THESE ASPECTS THE LD. CIT(A) DELETED THE ADDITION MADE BY THE A.O. 5. WE HAVE PERUSED THE FACTS OF THE CASE AND THE MA TERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE SHI K.C. AGARWAL ADVOCATE AT THE OUTSET RELIED UPON THE DECISION IN ASSESSEES OWN CASE FOR THE A. Y. 2005-06 DECIDED BY I.T.A.T. AGRA BENCH IN ITA NO.592/AGR/2008 DATED 04.02.2011. FOLLOWING THE DECISION OF THE I.T.A.T. AGRA BENCH IN ASSESSEES OWN CASE IN I TA NO.592/AGR/2008 DATED 04.02.2011 ON IDENTICAL FACTS WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DELETED THE ADDITION MADE BY THE A. O. THUS GROUND NO.1 OF THE REVENUE IS DISMISSED. ITA NO.431/AGR/2009 A.Y. 2006-07 8 6. AS REGARDS GROUND NO.2 OF THE REVENUE THE A.O. HAS OBSERVED IN HIS ORDER AS UNDER:- THE AMOUNT PAID/CREDITED BY SHV ENERGY PVT. LTD. T O THE ASSESSEE WAS RS.1 42 72 055.18 AS MENTIONED IN FORM NO.16A DATED 31.05.2006. THE AMOUNT OF FREIGHT CREDITED TO TRAD ING AND PROFIT & LOSS ACCOUNT OF THE ASSESSEE IS RS.55 02 683.07 ONL Y. THE ASSESSEE HAS CLAIMED PAYMENTS OF FREIGHT TO OTHER TANKER OWNER A S PER DETAILS BELOW:- M/S HINDUSTAN LPG DELIVERY PVT. LTD. RS.74 15 414. 66 SMT. ANJALI GOYAL RS. 2 04 420.21 SHRI PRAVEEN KUMAR RS. 9 63 618.50 SHRI SANJAY MITTAL RS. 4 43 620.97 SHRI BABLA DAS RS. 85 346.72 RS.91 12 421.06 IF THE AMOUNT CREDITED TO TRADING & PROFIT & LOSS A CCOUNT I.E. RS.55 02 683.07 IS ADDED TO THE AMOUNT OF RS.91 12 421.06 THE AMOUNT ACCOUNTED FOR BY THE ASSESSEE COMES TO RS.1 46 15 104.13. TOTAL AMOUNT PAID/CREDITED TO THE ASSESSEE AS PER T DS CERTIFICATE WORKS OUT TO RS.1 47 62 945.18 AND THUS THERE IS A DIFFERENCE OF RS.1 40 831 05 (14762 945.1814615104.13). THE ASSES SEE WAS REQUIRED TO EXPLAIN THE REASON FOR NOT ACCOUNTING F OR THE AMOUNT OF RS.1 47 841 05. THE LD. A.R. OF THE ASSESSEE EXPLAI NED THAT DIFFERENCE IS DUE TO THE FACT THAT ASSESSEE HAD BEEN ACCOUNTIN G THE BILLS OF FREIGHT ON ACCRUAL BASIS WHILE SHV ENERGY PVT. LTD. HAS TAK EN INTO ACCOUNT THE AMOUNT OF FREIGHT ON PAYMENT BASIS. 4.1 THE ARGUMENT ADVANCED BY THE LD. A. R. IS HOW EVER NOT CORRECT AS THE COPY OF ACCOUNT OF THE ASSESSEE IN T HE BOOKS OF SHV ENERGY PVT. LTD. WAS REQUISITIONED U/S 133(6) AND I T REVEALS ON STUDY OF ACCOUNT THAT THE TDS HAS BEEN MADE WHILE THE ACC OUNT OF THE ASSESSEE HAS BEEN CREDITED BY BILLS OF FREIGHT. MOR EOVER THE PROVISIONS OF TDS PROVIDE THAT THE TDS WOULD BE MAD E ON CREDIT OF THE ACCOUNT OR ON PAYMENT OF AMOUNT WHICHEVER IS EA RLIER. THE ARGUMENT OF THE LD A.R. THUS IS IN CONTRAST TO THE PROVISIONS OF SECTION 194C ALSO. MOREOVER M/S SHV ENERGY PVT. LTD. HAS CONFIRMED VIDE ITA NO.431/AGR/2009 A.Y. 2006-07 9 ITS LETTER DATED 04.11.2008 THAT THERE WERE NO INVO ICE/BILLS RAISED BY THE ASSESSEE BUT NOT CREDITED TO THE ACCOUNT OF THE ASSESSEE. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES THE ARGUMENT ADVANCED BY THE LD. A.R. IS REJECTED AND AMOUNT OF DIFFERENCE OF RS.1 47 841 .05 OR RS.1 47 841/- NOT FOUND CREDITED IN THE BOOKS OF AC COUNT IS ADDED TO THE INCOME OF THE ASSESSEE. 7. BEFORE THE LD. CIT(A) THE ASSESSEE FIELD WRITTEN SUBMISSION AND OTHER DOCUMENTS WHICH WERE FORWARDED TO THE A.O. FOR HIS COMMENTS. AFTER RECEIVING THE COMMENTS FROM THE A.O. ON PERUSAL OF THE FACTS ON RECORD THE LD. CIT(A) FOLLOWING THE DECISION IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 ON IDENTICAL GROUNDS DELETED THE ADDITION MADE BY THE A.O. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE FACT S IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005-06 (SUPRA) AND THEREFORE FOLL OWING THE SAME WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RI GHTLY DELETED THE ADDITION MADE BY THE A.O. THUS GROUND NO.2 OF THE REVENUE IS DI SMISSED. 9. GROUND NOS.3 & 4 OF THE REVENUE ARE GENERAL IN N ATURE THEREFORE DO NOT REQUIRE ANY ADJUDICATION. ITA NO.431/AGR/2009 A.Y. 2006-07 10 10. IN THE RESULT APPEAL OF THE REVENUE IN ITA NO. 431/AGR/2009 IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23.11.2011). SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 23 RD NOVEMBER 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R. ITAT AGRA BENCH AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY