ACIT, Circle - 1, Asansol, Asansol v. M/s. Bajrangbali Transport Agency, Asansol

ITA 523/KOL/2011 | 2007-2008
Pronouncement Date: 26-07-2013

Appeal Details

RSA Number 52323514 RSA 2011
Assessee PAN AAHFB2119G
Bench Kolkata
Appeal Number ITA 523/KOL/2011
Duration Of Justice 2 year(s) 3 month(s) 24 day(s)
Appellant ACIT, Circle - 1, Asansol, Asansol
Respondent M/s. Bajrangbali Transport Agency, Asansol
Appeal Type Income Tax Appeal
Pronouncement Date 26-07-2013
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 26-07-2013
Assessment Year 2007-2008
Appeal Filed On 01-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH JUDICIAL MEMBER ITA NO. 523 / KOL / 2011 ASSESSMENT YEAR :2007-08 ACIT CIRCLE-1 SAHANA APARTMENT LOWER CHELIDANGA ASANSOL-4 V/S . M/S. BAJRANGBALI TRANSPORT AGENCY 29 WEST APCAR GARDEN ASANSOL [ PAN NO.AAHFB 2119 G ] / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI AJAY KUMAR SINGH CIT-DR /BY RESPONDENT SHRI S.K.TULSIYAN AR /DATE OF HEARING 27-06-2013 /DATE OF PRONOUNCEMENT 26-07-2013 / // / O R D E R PER MAHAVIR SINGH JUDICIAL MEMBER:- THIS APPEAL FILED BY REVENUE IS ARISING OUT OF ORD ER OF COMMISSIONER OF INCOME-TAX (APPEALS)-ASANSOL IN APPEAL NO.64/C.I.T. (A)/ASL/W-1(2)/ASL/09-10 DATED 20-01-2011. ASSESSMENT WAS FRAMED BY ITO WAR D-1(2) ASANSOL U/S.143(3) OF THE INCOME-TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 31-12-2009 FOR ASSESSMENT YEAR (AY) 2007-08. 2. FIRST ISSUE IN THIS APPEAL OF REVENUE IS AS REGA RDS TO DELETION OF ADDITION IN RESPECT TO UNEXPLAINED EXPENSES ADDED BY ASSESSI NG OFFICER U/S.69C OF THE ACT AMOUNTING TO RS.14 84 601/-. FOR THIS REVENUE HAS RAISED FOLLOWING GROUND NO.I:- ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 2 I. THAT LD. COMMISSIONER OF INCOME-TAX (A) ERRED I N ALLOWING RELIEF AGAINST ADDITION MADE US. 69C WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE FAILED TO RECONCILE HIS REVISED STANCE REGARDING TRANSPORT PAYMENT MADE TO ALTOGETHER 16 PARTIES THROUGH CHEQUE BY PRODUCING C OMPLETE BOOKS OF ACCOUNTS ALONG WITH BILLS RAISED BY THOSE PARTIES A S WELL AS HE FAILED TO FURNISH RESPECTIVE LEDGERS PROPERLY TALLIED IN COMMENSURATI ON WITH THE BUNCH OF PAGES FURNISHED AT THE ORIGINAL ASSESSMENT STAGE CONTAINI NG SINGLE ENTRIES REFLECTING AMOUNTS CREDITED TO DIFFERENT PARTIES. 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE GRIEVANCE OF THE REV ENUE IS THAT THE ADDITION MADE IN COURSE OF ASSESSMENT UNDER THE HEAD UNEXPL AINED EXPENSES DELETED BY CIT(A). DURING THE COURSE OF ASSESSMENT PROCEEDINGS BOOKS OF ACCOUNT AND OTHER DETAILS AS ASKED FOR WERE PRODUCE D AND WERE VERIFIED ON TEST CHECK BASIS AND AT THE TIME OF FRAMING OF ASSE SSMENT ORDER REFERENCE OF CASH BOOK AND BANK STATEMENTS OF THE ASSESSEE-FIRM WERE TAKEN INTO CONSIDERATION AND AFTERWARDS ALTOGETHER SIXTEEN TRA NSPORTER PARTIES WERE DETECTED TO WHOM CHEQUES WERE ISSUED DURING THE YE AR UNDER CONSIDERATION. WE FIND THAT THE AO NOTICED FROM BUNCH OF SHEETS WH ICH INDICATES SINGLE ENTRIES AGAINST DIFFERENT PARTIES WHO EXECUTED TRAN SPORT JOBS AND WHOSE ACCOUNTS WERE CREDITED BY THE ASSESSEE AGAINST TRAN SPORT CHARGES DEBIT IN ITS ACCOUNTS WERE PRODUCED BY THE ASSESSEE. ACCORDING T O AO THESE WERE NOT IN PREVALENT FORMATS AND THE ASSESSEE FAILED TO RECONC ILE PARTY-WISE RAISED BILL AMOUNT AND AMOUNTS ACTUALLY PAID IN COMMENSURATION WITH ISSUED CHEQUES AND PAYMENT IN CASH. THE CONTENTION OF ISSUING OF S IXTEEN CHEQUES WERE NOT INCORPORATED IN THE BOOKS IN THE NORMAL MANNER AS W ELL AS REASON PURPOSE WERE NOT ESTABLISHED BY THE ASSESSEE AND ALSO OWING TO FAILURE OF ASSESSEE TO AVAIL THE OPPORTUNITY OF REBUTTAL FOR WHICH THE ENT IRE AMOUNT WAS ADDED UNDER THE HEAD UNEXPLAINED EXPENSES U/S 69 OF THE ACT. THE ASSESSEE BEFORE CIT(A) CLAIMED THAT ALL THE CHEQUES ISSUED TO SIXTE EN PARTIES WERE DESTINED TO THE TRANSPORTERS AND THE SAME WERE WELL ACCOUNTED F OR UNDER THE HEAD TRANSPORT CHARGES DURING THE YEAR UNDER CONSIDERA TION. ON REMAND REPORT THE ASSESSEE PRODUCE COMPLETE BOOKS INCLUDING COPIES OF BILLS RAISED BY THE ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 3 SIXTEEN PARTIES AND INDIVIDUAL LEDGERS OF THE RESPE CTIVE PARTIES BEFORE CIT(A). WE FIND THAT CIT(A) DELETED THE ADDITION BY OBSERVI NG AS UNDER:- AS ADMITTEDLY THE AO HAD NOT AN OPPORTUNITY TO PU RSUE THE SUBMISSION THE MATTER WAS REMAINED TO HM. IN HIS REMAND REPORT THE AO HAS MENTIONED THAT THE APPELLANT COULD NOT PRODUCED CONVINCING EVIDENC E REGARDING COPIES OF BILLS ETC. PRAISED BY DIFFERENT PARTIES ETC. OR ANY DOC UMENTARY EVIDENCE NAMELY CASH MEMO MONEY RECEIPTS ETC WHICH TESTIFIED THE AUTHENTICITY AND MODE OF PAYMENT OF HIRE CHARGES. FURTHER AS PER THE AO TH E LEDGE COPY IN RESPECT OF TRUCK HIRE CHARGES COULD NOT BE PRODUCED. THE AO HA S ALSO MENTIONED THAT THE ASSESSEE HAS FAILED TO PRODUCE STATUTORY LEGERS IN PREVALENT FORMATS. AND THEREFORE MERE PAYMENTS MADE THROUGH CHEQUES WITHOU T ASCERTAINING OR ESTABLISHING THE PURPOSE DOES NOT ENTAIL THE ASSESS EES CLAIM THAT THE SAME WERE MEANT FOR EXPENSES INCURRED TOWARDS PAYMENT O F TRUCK CHARGES. THE COMMENTS OF THE AO WERE FORWARDED TO THE APPELLANT AND ITS REPLY IT HAS DISPUTED THE AOS CLAIM THAT BOOKS OF ACCOUNTS AND LEDGERS WERE NOT PRODUCED. IT HAS FURTHER REFERRED TO THE DECISION O F THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. E. COMMERCIAL LD. 250 ITR 539 AND ALSO THE DECISION IN THE CASE OF CIT VS. CARBO INDUSTRIA L LTD. 244 ITR 422 WHEREIN THERE LORDSHIPS HELD THAT PAYMENT TO TRANSPORTERS B Y ACCOUNT PAYEE CHEQUES HAS TO BE ACCEPTED UNLESS THE OFFICER PROVES OTHERW ISE. PERUSAL OF THE FACTS SHOW THAT THIS ADDITION HAS BE EN MADE U/S.69C.THE AO HAS MADE THIS ON THE BASIS THAT CASH PAYMENTS HAVE BEEN MADE TO THE EXTENT OF RS.51 29 007/- AND THE CHEQUE PAYMENTS OF RS.14 84 601/- ARE OVER AND ABOVE THIS. AS PER THE ASSESSMENT ORDER THE AO HAS HELD THAT THE TOTAL PAYMENTS MADE BY THE APPELLANT AMOUNTED TO RS.66 1 3 608/- AGAINST THE AVAILABLE SOURCE OF RS.51 69 684/-.AS THE BALANCE P AYMENT COULD NOT BE EXPLAINED HE HAD PROCEEDED TO ADD RS.14 84 601/- U/ S. 69C OF THE INCOME TAX ACT. AT THE STAGE OF THE REMAND REPORT IT IS SE EN THAT THE AO HAS NOT OFFERED ANY COMMENTS PER SE ON THE APPELLANTS SUB MISSION REGARDING SOURCE OF ITS TOTAL PAYMENTS. RATHER HIS COMMENTS HAVE VE ERED TOWARDS THE JUSTIFICATION OF THIS EXPENDITURE. THE FACT THAT TH E BANK ACCOUNT FROM WHICH THESE CHEQUES HAS BEEN ISSUED IS A DISCLOSED BANK A CCOUNT IS NOT IN DISPUTE. THE TOTAL CREDITS MADE INTO THE BANK ACCOUNT ARE AL SO NOT IN DISPUTE. THE AO HAS NOT POINTED OUT ANY INSTANCE OF EXTRA CASH BEIN G INTRODUCED INTO ITS ACCOUNT OVER AND ABOVE WHAT THE ASSESSEE HAS CLAIME D. UNDER THE CIRCUMSTANCES I DO NOT SEE HOW AN ADDITION U/S. 69 C CAN BE MADE IN THIS REGARD. IT MAY ALSO BE NOTED THAT AT THE STAGE OF A SSESSMENT NO DISSATISFACTION HAS BEEN VOICED BY THE AO REGARDING NOON PRODUCTION OF BOOKS OF ACCOUNTS. ON THE CONTRARY THE ASSESSMENT ORDER MENTIONS THAT BOOKS OF ACCOUNTS AND OTHER DETAILS AS ASKED FOR WERE PRODUCED AND VERIFI ED ON TEST CHECK BASIS. IN MY OPINION WHETHER LEDGERS ARE IN STATUTORY OR PRE VALENT FORMATS OR NOT IS SECONDARY TO THE QUESTION OF WHETHER EXCESS CASH HA S BEEN FOUND IN THE APPELLANTS ACCOUNT. AS SEEN IN THE REMAND REPORT T HERE IS NO SUGGESTION THAT EXCESS CASH HAS BEEN FOUND IN THE APPELLANTS ACCOU NT. RATHER THE AO HAS ACCEPTED THAT CHEAQUE PAYMENTS AS CLAIMED BY THE AP PELLANT HAVE BEEN DULY MADE BUT HE IS SEEN TO DISPUTE THE PURPOSE. IN OTHE R WORDS THE ATTEMPT OF THE ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 4 AO IS SEEN TO BE TO DOUBT WHETHER THE EXPENDITUE HA S BEEN INCURRED FOR BUSINESS PURPOSES. IN THAT EVENT IT MUST BE SAID TH AT NO ENQUIRY HAS BEEN MADE BY THE AO TO DISPROVE THE APPELLANTS CLAIM TH AT THESE PAYMENTS HAVE BEEN MADE TO TRANSPORTERS. THE INITIAL REASON FOR A DDITION IN THE ASSESSMENT ORDER WAS LACK OF AVAILABLE SOURCE FOR RS.14 84 601 /-. AS THE REMAND STAGE THE AO HAS REMAINED SILENT ON THIS ISSUE AND INSTEA D HAS RAISED QUESTIONS ABOUT THE JUSTIFICATION OF THIS EXPENDITURE. PRESUM ABLY THEREFORE HE IS SATISFIED REGARDING THE SOURCES OF FUNDS. WITHOUT ANY EVIDENC E THE AOS PRESUMPTION THAT THE EXPENDITURE WAS NOT FOR BUSINESS PURPOSES CANNOT BE UPHELD. THIS IS ESPECIALLY SO BECAUSE IN THE ASSESSMENT ORDER THE AO DOES NOT DOUBT THE PURPOSE OF THE EXPENDITURE EVEN AFTER TEST CHECKING THE BOOKS AND DOCUMENTS PRODUCED BEFORE HI. FURTHERMORE THE FIGURES MENTION ED IN THE APPELLANTS SUBMISSION ARE BORNE OUT BY THOSE MENTIONED IN IS P ROFIT AND LOSS ACCOUNT. UNDER THE CIRCUMSTANCES I HOLD THAT NO GROUND FOR AN ADDITION U/S 69C IS PRESENT HERE AND THE ADDITION IS DIRECTED TO BE DEL ETED. THIS GROUND OF APPEAL IS ALLOWED. WE FIND FROM THE ABOVE FINDING OF CIT(A) THAT ASSE SSING OFFICER IN ITS REMAND REPORT ADMITTED THAT THE PAYMENTS ARE MADE BY CHEQU E TOWARDS EXPENSES INCURRED PAYMENT OF TRUCK HIRE CHARGES. EVEN OTH ERWISE ASSESSEE HAS CO- RELATED THE CHEQUE PAYMENTS AS WELL AS CASH PAYMENT S. EVEN OTHERWISE THE SOURCE OF PAYMENT IS ESTABLISHED AND EVEN CHEQUE PA YMENTS ARE FROM THE DISCLOSED BANK ACCOUNT AND THE REVENUE HAS NOT DISP UTED THE CREDITS MADE IN THE BANK ACCOUNT AND THERE IS NO INSTANCE OF ANY CA SH INTRODUCTION IN THE BANK ACCOUNT WHICH IS UNEXPLAINED. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT CIT(A) HAS RIGHTLY DELETED THE ADDITION MADE BY AO AND WE CONFIRM THE SAME. THIS GROUND OF REVENUES APPEAL IS DISMISSED. 4. NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGAINST THE DELETION OF ADDITION OF BOGUS CREDITORS AMOUNTING TO RS.24 16 984/-. FO R THIS REVENUE HAS RAISED FOLLOWING GROUND NO.II & III:- II. THAT LD. COMMISSIONER OF INCOME-TAX(A) WAS NOT JUSTIFIED IN ALLOWING RELIEF AGAINST ADDITION MADE UNDER THE HEAD OF BOGUS CRED ITOR IN RESPECT OF TUSHAR UPADHYAY WITHOUT APPRECIATING THE FACT THAT THE PAR TY COMPLETELY SWITCHED FROM HIS DEPOSITION EARLIER PROVIDED IN PRESENCE OF IS ACCOUNTANT SO FAR AS TOTAL WORTH VALUE OF WORK AND BILL RECEIVABLE WERE CONCER NED WITHOUT FURNISHING ANY BOOKS OF ACCOUNTS. ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 5 III. THAT LD. COMMISSIONER OF INCOME TAX (A) WAS NO T JUSTIFIED INN ALLOWING RELIEF AGAINST ADDITION MADE UNDER THE HEAD OF BOG US CREDITOR IN RESPECT OF BHUBAN MONDAL WITHOUT APPRECIATING THE FAT THAT THE PARTY REPEATEDLY REITERATED THROUGH DEPOSITION THAT HE HAD NO OUTST ANDING RECEIVABLE FROM THE ASSESSEE FIRM. 5. THE OBJECTION OF THE ASSESSING OFFICER IS THAT P AYMENT MADE BY CHEQUE BUT THE PAYMENTS MADE TO SHRI TUSHAR UPADHYAY M/S. MEGA IND. CONSTRUCTION AND SHRI BHUBAN MONDAL PROPRIETOR OF SRI KRISHNA TRANSPORT ARE NOT AGAINST THE WORK DONE BY THEM AS THE WHOLE AMOU NT OF HIRE CHARGES REMAINED UNPAID DURING THE YEAR UNDER CONSIDERATION AND AMOUNTS ARE AS UNDER:- NAME TOTAL BILLS RAISED AMT PAID AMT. PAYABLE (RS) (RS) (RS) T UPADHAYA 12 78 389/- NIL 12 78 389/- PARTNER OF M/MEGA IND. CONSTRUCTION BHUBAN MONDAL 9 86 343/- NIL 9 86 343/- CHANDRA SEKHAR PATHAK 1 51 952/- NIL 1 51 952/- AS THE ASSESSEE FAILED TO EXPLAIN THE PURPOSE OF PA YMENTS THE ASSESSING OFFICER PRESUMED THAT ASSESSEE HAS NOTHING TO EXPLA IN AND HE TREATED THE CREDITS AS BOGUS. AGGRIEVED ASSESSEE PREFERRED APP EAL BEFORE CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE D ELETED THE ADDITION BY OBSERVING IN PARA-9 AND 10 OF HIS ORDER WHICH REPR ODUCED AS UNDER:- 9. IN RESPECT OF SHRI BHUBAN MONDAL THE APPELLANT HAS MENTIONED THAT CONTRARY TO THE AOS STATEMENT SRI MONDAL HAD NEVER DENIED THE TRANSACTIONS WITH THE APPELLANT. IT IS ALSO SEEN AS PER THE STA TEMENT THAT SRI MONDAL HAS HIMSELF ADMITTED THAT THE RECEIPTS FROM THE APPELLA NT HAVE NOT BEEN DISCLOSED BY HIM IN HIS RETURN. PERUSAL OF THE BANK ACCOUNTS ALSO SHOW THAT SUBSTANTIAL PAYMENTS HAVE BEEN MADE BY THE APPELLANT TO SRI MON DAL IN THE SUBSEQUENT YEAR ALSO 10. PERUSAL OF SHIR MONDALS STATEMENT REVEALS THAT HE WAS UNABLE TO RECALL THE AMOUNTS OF TRANSACTIONS HE HAD WITH THE APPELLA NT. BUT AT THE SAME TIME ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 6 HE IS STATING THAT HE DID NOT HAVE ANY OUTSTANDING BALANCE AT THE END OF FINANCIAL YEAR 2006-07. ADDED TO THIS ARE HIS ADMIS SION THAT HE DID NOT DISCLOSE INCOME FROM THESE TRANSACTIONS IN HIS I.T. RETURN. THIS CREATES DOUBTS ON THE VERACITY OF HIS CONTENTIONS. ON BALANCE IN MY OPINION THE STATEMENTS OF SHRI BHUBAN MONDAL CANNOT BE TAKEN AT FACE VALUE . IN MY OPINION THE AO SHOULD HAVE PROVED THIS MATTER FURTHER ESPECIALLY SO WHEN SHRI MONDALS BANK ACCOUNT IS DISCLOSING PAYMENTS RECEIVED FROM THE AP PELLANT IN THE SUBSEQUENT FINANCIAL YEAR. SIMILARLY IN SHRI UPADHYAYS CASE IF ANSWERS WERE NOT FORTHCOMING FURTHER ENQUIRY SHOULD HAVE BEEN MADE. IN BOTH THESE CASES THAT OF SHRI UPADHYAY AND SHRI MONDAL THE EVIDENCE OBSERVED IN THE BANK ACCOUNTS APPEARS TO HAVE BEEN OVERLOOKED BY THE AO. IN A SITUATION WHERE THE SUBJECT IS NOT ALE TO RECA LL FACTS WITH ANY DEGREE OF EXACTITUDE ENQUIRY SHOULD HAVE BEEN MADE ON THE BA SIS OF THEIR PERSONAL DOCUMENTS. UNFORTUNATELY THIS DOES NOT APPEAR TO H AVE BEEN DONE. THE DETAILS SEEN IN THE BANK ACCOUNTS IN MY OPINION BE AR OUT THE APPELLANTS AVERMENTS REGARDING THESE SUNDRY CREDITORS. IF ANY INFRACTION HAVE BEEN COMMITTED BY A CREDITOR IN HIS INDIVIDUAL CAPACITY I SEE NO REASON WHY THE CONSEQUENCES SHOULD BE VISITED UPON THE APPELLANT. ON PERUSAL OF THE DETAILS PREPONDERANCE OF PROBABILITY SUGGESTS THAT THE APPE LLANTS CONTENTIONS ARE TRUE. HENCE THEY ARE ACCEPTED. THE ADDITION IN RES PECT OF THESE TWO SUNDRY CREDITORS ARE DIRECTED TO BE DELETED. AGGRIEVED NOW REVENUE IS IN APPEAL BEFORE US. 6. BEFORE US IT IS NOT DENIED BY BOTH THE PARTIES T HAT SHRI BHUBAN MONDAL AND SHRI T UPADHYAY THEY HAVE NOT DENIED OF CARRYI NG OUT WORK OF ASSESSEE AND THESE PAYMENTS ARE OUTSTANDING FOR THE PAYMENTS . IN THEIR DEPOSITION THE ASSESSING OFFICER ONLY ASKED WHETHER THESE CREDITOR S HAVE PAID THE AMOUNT TO THE ASSESSEE. THEY HAVE DENIED TO HAVE MADE ANY PAY MENT BUT HAVE NOT DENIED OF DOING ANY WORK AND THESE CREDITS ARE ON T HE BASIS OF WORK DONE BY THESE PARTIES AND CIT(A) HAS DELETED THIS ADDITION ON THE PREMISE THAT REVENUE COULD NOT BRING ANY EVIDENCE OR ARGUMENTS T O SUBSTANTIATE ITS CLAIM THAT THESE PAYMENTS ARE UNSECURED LOAN OR CASH PAYM ENTS BUT IN THE ABSENCE OF THE SAME WE CONFIRM THE ORDER OF CIT(A) AND THI S ISSUE OF REVENUES APPEAL IS DISMISSED. 7. NEXT ISSUE IN THIS APPEAL OF REVENUE IS AS REGAR DS TO DELETION OF ADDITION MADE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. FOR THIS REVENUE HAS RAISED GROUND NO. IV:- ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 7 IV. THAT LD. COMMISSIONER OF INCOME-TAX(A) ERRED I N ALLOWING RELIEF AGAINST ADDITION MADE UNDER THE HEAD OF 40(A)(IA) WITHOUT C ONSIDERING THE EXISTING PROVISION OF SEC. 194C(2)WHICH INVOLVES DUE LAW POI NT. 8. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE ASSESSING OFFICER NO TED THAT ASSESSEE HAS DEBITED TRUCK HIRE CHARGES AND FOR PAYMENT MADE FOR HIGH SPEED DIESEL IS THE FOLLOWING:- TRUCK HIRE CHARGES RS. 75 45 971/- H.S.D. (DIESEL) RS. 91 44 234/- TOTAL RS.1 66 90 205/- AGGRIEVED ASSESSEE PREFERRED APPEAL BEFORE CIT(A) WHO DELETED THE ADDITION BY OBSERVING A UNDER:- 11. GROUND NO.3:- IN THIS GROUND THE APPELLANT IS DISPUTING THE AOS DISALLOWANCE U/S. 40A(IA) FOR ALLEGED VIOLATION OF SECTION 194C OF THE INCOME TAX ACT. PERU9SAL OF THE ASSESSMENT ORDER SHOWS THA T OF THE TOTAL AMOUNT DISALLOWED RS.91 44 234/- PERTAINS TO PURCHASE OF D IESEL. FURTHERMORE IT APPEARS THAT THE APPELLANT HAS NEITHER RECEIVED NOR PAID THIS AMOUNT IT BEING AN ADJUSTMENT FROM ITS BILLS RAISED ON M/S. PANEM C OALMINES LTD. IT IS CLEAR THAT THIS IS A PURCHASE ON WHICH PROVISIONS OF SEC. 194C DO NOT APPLY. THIS AMOU9NT IS THEREFORE DIRECTED TO BE DELETED. THE BA LANCE AMOUNT OF ADDITION RS.51 29 730/- IS SEEN TO BE COVERED BY THE DECISIO N OF HONBLE ITAT KOLKATA IN THE CASE OF M/S. RAKSHIT TRANSPORT ( ITA NO.261/KOL2009 ) DATED 11.09.2009. THE FACTS IN THIS CASE ARE SIMILAR AND RESPECTFULLY FOLLOWING THE ABOVE DECISION THE BALANCE AMOUNT IS DIRECTED TO B E DELETED. THIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED NOW REVENUE IS IN APPEAL BEFORE US. 9. WE FIND THAT THE AO ADMITTED IN THE ASSESSMENT O RDER THAT THE ASSESSEE HAS MADE PURCHASES OF DIESEL AMOUNTING TO RS.91 44 234/- AND FURTHER THE AMOUNT OF RS.51 29 730/- WAS INCLUDED IN THE PURCHA SE BILL OF DIESEL WHICH IS ATTRIBUTABLE TO TRANSPORT CHARGES. WE FIND THAT T HESE AMOUNTS WERE NEITHER ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 8 RECEIVED NOR PAID BY ASSESSEE BUT IT WAS ADJUSTED F ROM ASSESSEES BILL RAISED FROM PANEM COAL MINES LTD. WE FIND THAT THE ISSUE I S COVERED BY THE TRIBUNALS DECISION IN THE CASE OF M/S. RAKSHIT TRA NSPORT IN ITA NO. 261/KOL/2009 DATED 11.09.2009 AND FOLLOWING THE SAM E CIT(A) DELETED THE ADDITION. IT IS CLEAR THAT ON PURCHASES OF DIESEL A SSESSEE IS NOT LIABLE TO TDS AND PROVISION OF SECTION 194C WILL NOT APPLY. REVEN UE HAS NOT ARGUED ON THIS ISSUE. UNDER THESE CIRCUMSTANCES WE CONFIRM THE ORDER OF CIT(A) AND THIS ISSUE OF REVENUES APPEAL IS DISMISSED. 10. IN THE RESULT REVENUES APPEAL IS DISMISSED. PRONOUNCED IN OPEN COURT ON 26.07.2013 SD/- SD/- (PRAMOD KUMAR) (MAHAVIR SI NGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA *DKP !' #- /07/2013 * ++ ++ ++ ++ - - - - / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '/'+0 1 / CONCERNED CIT 4. 1- / CIT (A) 5. 45 +++0 +0 / DR ITAT KOLKATA 6. 589 :; / GUARD FILE. BY ORDER/ +0 * ITA NO.523/KOL/2011 A.Y. 2007-08 ACIT CIR-1 ASL V. M/S. BAJRANGBALI TRANSPORT AGENCY PAGE 9