ITO, Ward - 3(3), Kolkata, Kolkata v. M/s. Apex Cargo Movers & Services Pvt. Ltd., Kolkata

ITA 528/KOL/2010 | 2005-2006
Pronouncement Date: 21-05-2010

Appeal Details

RSA Number 52823514 RSA 2010
Assessee PAN AACCA2549R
Bench Kolkata
Appeal Number ITA 528/KOL/2010
Duration Of Justice 2 month(s) 6 day(s)
Appellant ITO, Ward - 3(3), Kolkata, Kolkata
Respondent M/s. Apex Cargo Movers & Services Pvt. Ltd., Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Department
Bench Allotted B
Tribunal Order Date 21-05-2010
Assessment Year 2005-2006
Appeal Filed On 15-03-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : KOLKATA [ BEFORE SHRI D.K. TYAGI J.M. & SHRI B.C. MEENA A.M. ] I.T.A.NO. 528 (KOL) OF 2010 ASSESSMENT YEAR 2005-06 INCOME-TAX OFFICER WARD-3(3) -VS- APEX CARGO MOVERS & SERVICES KOLKATA. PVT. LTD. (PAN-AACCA2549R) ( APPELLANT ) ( RESPONDEN T ) APPELLANT BY : SRI SANJAY KUMAR RESPONDENT BY : S/SRI S.BANDYOPADH YAY & V.N. PUROHIT. O R D E R PER SRI B.C.MEENA A.M. : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 22.12.2009 OF C.I.T.(A)-XIII KOLKA TA PERTAINING TO ASSESSMENT YEAR 2005-06. THE REVENUE HAS RAISED SEV ERAL GROUNDS WHICH ARE ALL DIRECTED AGAINST THE DELETION OF ADDITION O F RS.2 14 82 396/- BY THE C.I.T.(A) ON ACCOUNT OF UNPROVED SUNDRY CREDITORS I N RELATION TO OUTSTANDING LORRY HIRE CHARGES. 2. THE FACTS IN BRIEF RELATING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE- COMPANY IS ENGAGED IN CARGO MOVING SERVICES AND IN PROCESS HAS TO HIRE TRUCKS/LORRIES/TRAILERS FROM MARKET TO MOVE CARGO. ON VERIFICATION OF THE BALANCE SHEET FOR THE YEAR UNDER APPEAL THE A.O. F OUND LIABILITY OF RS. 2 14 82 396/- FOR SUNDRY CREDITORS. THE A.O. REQUIR ED THE ASSESSEE TO FILE DETAILS AND ACCOUNTS IN RESPECT OF THE SUNDRY CREDI TORS. THE ASSESSEE FILED LEDGER COPIES OF SUNDRY CREDITORS AND THE A.O. OBSE RVED THAT IN THESE LEDGER COPIES ONLY THE NAMES OF THE SUNDRY CREDITORS AND T RUCKS NOS. WERE GIVEN BUT THE ADDRESSES OF THE PARTIES TO WHOM FREIGHT AM OUNT WAS TO BE PAID WERE NOT GIVEN AND HENCE THE SAME REMAINED UNVERIFI ABLE. THEREAFTER THE A.O. PROVIDED SEVERAL OPPORTUNITIES TO THE ASSESSEE TO PRODUCE LIST OF SUNDRY CREDITORS WITH THEIR NAMES & ADDRESSES. THE ASSESSEE FILED SOME DETAILS WHICH DID NOT BEAR THE NAMES & ADDRESSES OF THE SUNDRY CREDITORS 2 AND TRUCK NOS. THE A.O. THEN ALLOWED FINAL OPPORTU NITY TO THE ASSESSEE TO FURNISH THE DETAILS AS REQUIRED BY HIM. IN RESPONS E THE ASSESSEE STATED THAT IT HAS ALREADY FILED DETAILS OF SUNDRY CREDITO RS & TRUCK NOS. AND ALSO LIST OF REPAYMENTS TO THE SUNDRY CREDITORS DURING F .Y. 2005-06. THE ASSESSEE HOWEVER REQUESTED THE A.O. TO SELECT THE CASES WHICH HE WANTED TO VERIFY SO AS TO ENABLE THE ASSESSEE TO PRODUCE T HE SAME. IN THE ABOVE CIRCUMSTANCES THE A.O. HELD THAT DESPITE OPPORTUNI TIES PROVIDED THE ASSESSEE COULD NOT PRODUCE THE REQUIRED DETAILS WIT H SUPPORTING EVIDENCE IN RESPECT OF SUNDRY CREDITS OF RS.2 14 82 396/- AN D THEREFORE THE IDENTITY OF THE PARTIES AND GENUINENESS OF THE TRANSACTIONS COULD NOT BE ESTABLISHED. HE THEREFORE TREATED THE ENTIRE LIAB ILITY FOR SUNDRY CREDITORS OF RS.2 14 82 396/- AS UNEXPLAINED AND UNDISCLOSED INC OME OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME FOR THE YEAR UNDER APPEAL WHICH RESULTED IN THE FOLLOWING POSITION :- FREIGHT REALIZED RS.6 89 70 252 LESS: LORRY HIRE PAID RS.6 74 53 563 LESS: DISALLOWED RS.2 14 82 396 RS.4 59 71 167 MARGIN : RS.2 29 99 085 I.E. 33.35% 3. BEFORE THE C.I.T.(A) THE ASSESSEE MADE A DETAIL ED SUBMISSION WHICH HAS BEEN INCORPORATED IN HIS ORDER. ACCORDING TO TH E C.I.T.(A) THE ASSESSEE CLAIMED TO HAVE FURNISHED TRUCK NUMBERS FOR ALL THE SUNDRY CREDITORS BEFORE THE A.O. BUT IN THE ASSESSMENT ORDER THE A. O. ALLEGED THAT TRUCK NO. OF ONLY FEW SUNDRY CREDITORS WERE FURNISHED AND MOST OF THE TRUCK NOS. WERE NOT PROVIDED. BEFORE THE C.I.T.(A) THE ASSESSE E FILED THE PARTICULARS OF ALL THE SUNDRY CREDITORS WHICH WERE OUTSTANDING ON 31.3.2005 AND DETAILS OF PAYMENTS MADE TO THEM IN SUBSEQUENT YEARS. THES E DETAILS WERE FORWARDED TO THE A.O. FOR HIS COMMENTS AND INQUIRIE S WHICH HE WANTED TO CONDUCT. THE A.O. DURING REMAND PROCEEDING CALLED FOR CERTAIN DETAILS FROM THE ASSESSEE AND SUBMITTED HIS REPORT WHICH I S INCORPORATED ON PAGES 7 & 8 OF THE C.I.T.(A)S ORDER. IN THE REMAN D REPORT THE A.O. STATED THAT THE ASSESSEE FAILED TO PRODUCE ADDRESS OF THE TRUCK SUPPLIER OR OWNER 3 TO WHOM FREIGHT CHARGES WERE CLAIMED TO HAVE BEEN P AID IN THE SUBSEQUENT FINANCIAL YEAR. ACCORDING TO THE A.O. THEREFORE P AYMENT VOUCHERS OF SUNDRY CREDITORS AMOUNTING TO RS.2 14 82 396/- COUL D NOT BE VERIFIED AND HENCE NOT ACCEPTABLE FOR THE FOLLOWING REASONS : THE ASSESSING OFFICER TRIED HIS BEST TO GATHER THE ADDRE SSES AND FULL TRUCK NOS. OF THE SUNDRY CREDITORS TO VERIFY THE GENUINE NESS AND EXISTENCE OF THE SUNDRY CREDITORS AS FRUITFUL KEEPING IN VIE W OF THE NATURAL JUSTICE AND ALL SORTS OF HUMAN PROBABILITIES BEFORE A RRIVING AT THE CONCLUSION THAT THE ENTIRE LIABILITY FOR SUNDRY CREDITORS SHOWN IN THE BALANCE SHEET ALONG WITH THE RETURN OF INCOME FOR THE AS SESSMENT YEAR 2005-06 WERE TREATED AS UNEXPLAINED MONEY IN THE HANDS OF THE ASSESSEE-COMPANY WHICH COULD NOT BE PROVED GENUINE BY THE ASSESSEE- COMPANY. THE ASSESSEE WAS ALSO MADE AVAILABLE THE SAID REMA ND REPORT OF THE A.O. AND THE ASSESSEE FILED ITS COMMENT BEFORE THE C.I.T .(A). AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND EVIDENCES FILED THE C.I.T.(A) PASSED A DETAILED ORDER HOLDING THAT THE SUNDRY CREDITORS SH OWN BY THE ASSESSEE CANNOT BE HELD TO BE NON-GENUINE AND HE THUS DELETE D THE ADDITION OF RS.2 14 82 396/-. THE FINDING OF THE C.I.T.(A) IN THIS REGARD IS REPRODUCED BELOW :- I HAVE CAREFULLY CONSIDERED ALL THE FACTS AND CIRCUMSTANC ES OF THE CASE ARGUMENTS AND COMMENTS MADE BY THE A.O. AND THE SUBMI SSION MADE BY THE A/R OF THE ASSESSEE. IT IS SEEN THAT THE ASSES SEE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF PICKING UP GOODS FROM T HE DOCK AREA FOR CERTAIN PARTIES (ITS CLIENTS) AND DELIVERING THEM AT THEIR PREMISE WHICH ARE MOSTLY LOCATED IN THE NEARBY AREAS. FOR THIS T HE ASSESSEE ENGAGES LOCAL LORRIES AND PAYS THEM LOCAL HIRE CHARGES. DUR ING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS SHOWN RECEIPT O FR EIGHT AND SERVICE CHARGES OF RS. 6 89 70 252/- FROM ITS CLIENTS AND PA YMENT OF LORRY HIRE CHARGES OF RS.6 74 53 563/-. OUT OF THE LORRY HIRE CHARGES RS.2 14 82 396/- HAVE BEEN SHOWN AS OUTSTANDING AS ON 31.3.2005. IN THE ASSESSMENT ORDER THE A.O TREATED THESE OUTST ANDING LORRY HIRE CHARGES (DEPICTED AS SUNDRY CREDITORS IN THE B/S A S ON 31.3.2005) AS UNVERIFIABLE ON THE GROUND THAT THE ASSESSEE HAD FAILE D TO_GIVE ADDRESSES OF ALL THESE SUNDRY CREDITORS AND IN MOST OF T HE CASES EVEN THE TRUCK NOS. OF THE LORRIES USED WERE ALLEGED TO BE NOT PROVIDED REGARDING THE ADDRESSES THE A.R. OF THE ASSESSEE HAS EXPLAINED THAT THE MAJORITY OF LORRY OWNERS ARE SMALL TIME TRUCK OW NERS WHO OWN ONE OR TWO TRUCKS AND THEREFORE DO NOT MAINTAIN ANY PU CCA BILL BOOKS 4 OR CHALLANS CONTAINING PRINTED ADDRESSES. THE EXPENSES FO R PAYMENT TO THESE LORRY OWNERS ARE BOOKED THROUGH SELF-PREPARED E XPENSES VOUCHERS IN WHICH THE NAME OF THE DRIVER AND THE TRUCK NO. IS MENT IONED. AT THE TIME OF BOOKING THE LORRIES THE REGISTRATION BOOKS IRE SEEN IN WHICH GENERALLY THE FULL ADDRESSES ARE NOT GIVEN. THE ADDRESSES OF THESE PERSONS ARE NOT NOTED DOWN BECAUSE THESE PEOPLE DO N OT HAVE ANY PERMANENT ADDRESS AND ARE ALWAYS ON MOVE. THE A.R. CLAI MED THAT THE TRUCK NOS. AND NAMES OF ALL OUTSTANDING LORRY HIRE CHARGES WERE SUPPLIED TO THE A.O. I THINK THERE IS FORCE IN THESE ARGUM ENTS OF THE A/R OF THE ASSESSEE. FROM THE LIST OF SUNDRY CREDITORS WORTH RS.2 14 8 2 396/ PRODUCED IT IS SEEN THAT THE LIST RUNS INTO L3 PAGES AND EACH PAGE HAS ABOUT 32 ENTRIES. THUS THERE ARE ABOUT 3300 PERSONS IN VOLVED TO WHOM SMALL PAYMENTS OF RS.3 000/- TO RS.10 000/- ARE BEING MADE. MAJORITY OF NAMES ARE DIFFERENT AND HARDLY ANY NAMES ARE GETTING REPEATED. THIS SHOWS THAT THESE PERSONS ARE SMALL TIME TRUCK OPERATOR S WHO RUN THEIR TRUCKS ON DAY-TO-DAY BASIS. THEY CANNOT BE EXPECTED T O HAVE REGULAR BILLS AND CHALLANS. THEIR MAIN IDENTIFICATION IS THEIR TRUCK NO. ON LY. THE ASSESSEE HAD RECORDED AND PRESERVED THE TRUCK NOS. A ND NAMES OF EACH AND EVERY PAYEE AND HAD PROVIDED THAT TO THE A.O. IN THE ASSESSMENT ORDER THE A.O. HAS MENTIONED THAT THE ASSESSEE DID NOT PRODUCE THE DETAILS OF THE TRUCK NOS. OF ALL THE SUNDRY CREDITORS. THIS C LAIM OF THE A.O. DOES NOT SEEM TO BE CORRECT IN VIEW OF THE FACT THAT IN THE ASSESSMENT ORDER ITSELF THE A.O. HAS QUOTED SUBMISSION OF T HE ASSESSEE ON PAGE NO.3 WHEREIN THE ASSESSEE HAS MENTIONED THAT D ETAILS OF SUNDRY CREDITORS SHOWING DATE NAME TRUCK NO. AND THEIR PARTICULA RS HAVE BEEN SUBMITTED BY THEM. SECONDLY WHEN THE ASSESSEE HAS SU BMITTED THE TRUCK NOS. DURING THE APPELLATE PROCEEDINGS THERE IS TO R EASON TO BELIEVE WHY IT WOULD FURNISH PART DETAILS DURING THE ASSESSMENT PR OCEEDINGS. DURING THE ASSESSMENT PROCEEDINGS THE A.O. JUST DID NOT MAKE ANY EFFORT TO CONDUCT ANY FURTHER INQUIRIES ON THE BASIS OF THE EVIDENCES ABOUT THE GENUINENESS OF THE SUNDRY CREDITORS THAT HAD BEEN FURNISHED TO HIM BY THE ASSESSEE. HE KEPT ON INSISTING ON PRODUCTIO N OF ADDRESSES OF ALL THE SUNDRY CREDITORS. THE ASSESSEE OFFERED TO GIVE ADDRESSES OF SOME OF THE SUNDRY CREDITORS IF THE A.O. SELECTED A FEW S PECIFIC CASES AND ASKED FOR THEIR ADDRESSED. THE A.O. EVEN DID NOT DO THAT. I AM OF THE OPINION THAT LOOKING TO THE SMALLNESS OF THE TRANSACTIONS WITH THE LORRY OPERATORS BY PROVIDING NAMES AND TRUCK NOS. THE ASSESSEE DISCHARGED ITS PRIMARY RESPONSIBILITY OF IDENTIFYING THE PAYEE AND NATURE OF THE TRANSACTION WITH THE SUNDRY C REDITORS. THE A.O. SHOULD HAVE BROUGHT SOME MORE MATERIAL ON RECORD TO JU STIFY HIS ALLEGATION OF ALL THESE SUNDRY CREDITORS BEING UNVERIFIABLE. TH E ACTION OF A.O. IN REJECTING ALL THESE SUNDRY CREDITORS AMOUNTS TO D ENYING THE ASSESSEE THE DEDUCTION FOR LORRY HIRE CHARGES AMOUNTING TO RS.2.14 82 396/- WHICH LOOKS UNJUSTIFIED. THE A/R HAS SUBMITT ED DETAILS OF SOME BILLS ISSUED BY THE ASSESSEE COMPANY TO IT S CLIENTS. CORRESPONDING TO THESE BILLS THE A/R HAS ALSO SUBMITTED T HE DETAILS (INCLUDING TRUCK NOS. AND AMOUNT OF LORRY CHARGES) OF ALL T HE LORRIES 5 WHICH WERE USED TO TRANSPORT GOODS FOR THE CLIENT. THIS S HOWS THAT THE ASSESSEE HAS RECORD ABOUT WHICH LORRY WAS USED FOR WHIC H CLIENT AND FOR WHAT WORK. THE A/R OF THE ASSESSEE HAS FURTHER SUBMITTED THAT TH E ASSESSMENT OF THE ASSESSEE HAS BEEN COMPLETED U/S.143(3) IN ASST. YEARS 2003-04 2004-05 AND 2006-07 ALSO AND IN ALL THESE YEAN NO SUCH ADDITION HAS BEEN MADE. COPIES OF THE ASSESSMENT ORDERS FOR THESE YEARS HAVE BEEN SUBMITTED. I HAVE EXAMINED THESE ASSES SMENT ORDERS. IT IS SEEN THAT THE TWO ORDERS FOR ASST.YEARS 2003-04 AND 2004-05 HAVE BEEN PASSED BY THE SAME A.O. WHO PASSED THE ORDER FOR ASST. YEAR 2005- 06 WHICH IS UNDER CONSIDERATION. IN BOTH THESE ORDERS TH E RETURNED INCOME OF THE ASSESSEE HAS BEEN ACCEPTED WITH SOME MINO R ADDITIONS. THE ISSUE OF UNVERIFIABLE SUNDRY CREDITORS OR LORRY HIRE CH ARGES HAS NOT BEEN RAISED. SIMILARLY IN THE ASSESSMENT ORDER FOR THE ASST.YEAR 20 06-07 ALSO NO ADDITION HAS BEEN MADE ON THIS ISSUE. THE FACTS I N ALL THESE YEARS ARE NOT VERY DIFFERENT. THEREFORE MAKING ADDITION ON THIS ISSUE IN ONE YEAR AND ACCEPTING IT IN OTHER YEARS LOOK ARBITRARY AND BASELE SS. IN THE REMAND REPORT THE A.O. HAS POINTED OUT CERTAIN ABNORMALITIES IN THE DETAILS FILED BY THE ASSESSEE. FOR EXAMP LE HE HAS POINTED OUT THAT FOR MANY OF THE OUTSTANDING CREDITORS T HE PAYMENT IS MADE BY THE ASSESSEE AFTER ONE YEAR. IN THIS RESPECT THE A/R HAS EXPLAINED THAT SOME PARTIES DO NOT EXPECT IMMEDIATE PAYM ENT AND COME TO RECEIVE PAYMENT ONLY WHEN THEY NEED IT. THE A SSESSEE ALSO HAS SOME FUND CONSTRAINTS AND HAS TO KEEP PAYMENTS TO LORR Y DRIVERS PENDING TILL THE PAYMENT IS RECEIVED FROM ASSESSEES CLIEN TS. IN THIS RESPECT I FEEL THAT JUST BECAUSE THE PAYMENT TO SOME CREDITORS IS MADE LATE IT CANNOT HE SAID THAT THE CREDITORS ARE NON-GENU INE. THE A.O. HAS ALSO MENTIONED THAT OTHER THAN THE OUTSTANDING LORRY CH ARGES PAYMENT FOR OTHER LORRY CHARGES ARE PAID ON THE DATE OF RAISING T HE BILL ITSELF. I DO NOT FIND ANYTHING INCRIMINATING IN THIS. THERE ARE BOUND TO BE SOME LORRY DRIVERS WHO WOULD INSIST PAYMENT ON THE SAME DAY B UT THAT DOES NOT MEAN THE OTHERS ARE NON-GENUINE. THE A.O. HAS ALSO MENTIONED THAT THE ASSESSEE DID NOT M AINTAIN LEDGER FOR SUNDRY CREDITORS SO HOW COULD IT KEEP TRACK O F THE PAYMENTS TO BE MADE TO THE SUNDRY CREDITORS. IN THIS RESPECT T HE A/R EXPLAINED THAT SINCE A LARGE NUMBER OF PERSONS ARE INVOLVED WHO HA VE MOSTLY SINGLE TRANSACTION THEREFORE THERE WAS NO NEED TO HAVE SEPARATE LEDGER ACCOUNT FOR EACH OF THEM. THE NAME AND TRUCK NO. WAS A VAILABLE IN THE EXPENSES VOUCHERS. THE A.O. HAS FURTHER MENTIONED THAT T HE EXPENSES VOUCHERS PREPARED BY THE ASSESSEE ARE NOT SIGNED BY THE LORRY OWNER/DRIVER AND THE SIGN IS TAKEN ONLY ON THE PAYMENT VOUCHER. IN THIS RESPECT THE A/R OF THE ASSESSEE STATED THAT THE LORRY OWNERS ARE SMALL TIME OPERATORS AND DO NOT MAINTAIN THEIR BILL BOOKS. THEREFORE THE VOUCHER FOR EXPENSES HAVE TO BE MADE BY THE ASSE SSEE WHICH IS NOT SIGNED BECAUSE THE VOUCHER IS PREPARED IN THE OFFICE AND THE DRIVER GOES 6 AWAY FROM THE FIELD ITSELF. HOWEVER THE SIGNATURE OF THE PAYE E IS OBTAINED ON THE PAYMENT VOUCHER WHENEVER PAYMENT IS MADE. HE CLAIMED THAT THE SIGNATURE ON THE PAYMENT VOUCHER IS IND ICATIVE O THE GENUINENESS OF THE EXPENSES AND SUNDRY CREDITORS. THE A .O. ALSO FOUND IT STRANGE THAT ONLY ONCE OR TWICE IN THE YEAR ANY TRU CK DRIVER HAS WORKED FOR THE ASSESSEE MORE THAN ONCE OR TWICE. REGAR DING THIS THE A/R STATED THAT IN MOST OF THE CASES THIS MAY BE BECAU SE THERE IS DELAY ON PART OF THE ASSESSEE TO MAKE PAYMENTS. HOWEVER THE ASSESSEE HAS MAINTAINED THE NAME AND TRUCK NO. OF ALL THE TRUCKS WHO HAVE WORKED FOR IT. I FIND THAT THE EXPLANATIONS GIVEN BY THE A/R ABOUT THE ABNORMALITIES POINTED BY THE A.O. APPEAR TO BE SATISFACTORY . JUST ON THE BASIS OF THESE ABNORMALITIES THE SUNDRY CREDITORS SHOWN BY THE A SSESSEE CANNOT BE HELD TO BE NON-GENUINE. IN VIEW OF THE ABOVE DISCUSSION I AM OF THE OPINION THAT THE DECISION OF THE A.O. THAT THE SUNDRY CREDITORS AMOUNTING T O RS.2 14 82 396/- ARE UNVERIFIABLE CANNOT BE JUSTIFIED. HENCE 1 DELETE THE ADDITION MADE BY HIM ON THIS ACCOUNT. HENCE THIS APPEAL BY THE REVENUE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON T HE ORDER OF THE A.O. AND SUBMITTED THAT IN THE REMAND PROCEEDING THE A.O . HAS EXPLAINED HOW THE ASSESSEE FAILED TO PRODUCE THE DOCUMENTS ASKED FOR TO VERIFY THE GENUINENESS OF THE TRANSACTION. THE LEDGER COPY DO ES NOT INDICATE THE NAME & ADDRESS OF THE TRUCK OWNER/SUPPLIER OR TRUCK NO. TO WHOM THE FREIGHT HIRE CHARGES WERE PAID IN THE NEXT FINANCIA L YEAR. THE ASSESSEE DID NOT MAINTAIN ANY PARTY LEDGER FOR PAYMENT TO SUNDRY CREDITORS. THE C.I.T.(A) HAS ACCEPTED THE ASSESSEES SUBMISSION WI THOUT THERE BEING ANY SUPPORTING EVIDENCE AND CONSIDERING THE ABNORMALITI ES POINTED OUT BY THE A.O. THEREFORE THE ADDITION WAS RIGHTLY MADE BY T HE A.O. AND THE C.I.T.(A) WAS NOT JUSTIFIED IN DELETING THE SAME. 5. THE LD. A/R OF THE ASSESSEE ON THE OTHER HAND RELIED ON THE ORDER OF THE C.I.T.(A). HE FURTHER SUBMITTED THAT TO DISALL OW THE SUNDRY CREDITS THE A.O. DID NOT BRING ON RECORD ANY EVIDENCE. HE FURT HER POINTED OUT THAT IN THE EARLIER AS WELL AS SUBSEQUENT ASSESSMENT YEARS ON IDENTICAL FACTS THE A.O. HAS ACCEPTED SIMILAR CLAIM OF THE ASSESSEE. C OPIES OF THE ASSESSMENT ORDERS PASSED U/S. 143(3) FOR ASSESSMENT YEARS 2003 -04 2004-05 & 2006- 07 HAVE BEEN FILED IN THE PAPER BOOK. HE ALSO RELIE D ON THE DECISION OF 7 HONBLE GUJARAT HIGH COURT IN THE CASE OF ITO VS. H YLAM SECURITIES & FINANCE (P) LTD. [178 TAXMAN 317 (GUJ)] AND THAT OF HONBLE I.T.A.T. HYDERABAD IN THE CASE OF PIONEER ROAD CARRIERS VS. ITO [ITA NO.1054/HYD/ 2008] A COPY OF WHICH IS ALSO PLACED ON RECORD. I N COUNTER REPLY THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE FACT S BEFORE THE HONBLE GUJARAT HIGH COURT WERE DIFFERENT THAN THOSE OF THE ASSESSEE AND THEREFORE THE SAID DECISION IS NOT APPLICABLE TO T HE CASE OF THE ASSESSEE. 6. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED BEFORE US. THE C.I.T.(A) HAS RECORDED THE FINDING THAT TH E ASSESSEE HAS MAINTAINED THE NAMES AND TRUCK NOS. OF ALL THE TRUC KS WHO HAVE WORKED FOR IT. WE FURTHER FIND THAT THE ASSESSMENTS OF TH E ASSESSEE HAVE BEEN COMPLETED U/S. 143(3) IN ASSESSMENT YEARS 2003-04 2004-05 AND 2006-07 ALSO AND IN ALL THESE YEARS NO SUCH ADDITION HAS BE EN MADE. THEREFORE THERE BEING NO MAJOR CHANGE IN THE FACTS OF THE YEA R UNDER CONSIDERATION WE FIND NO JUSTIFICATION IN THE ACTION OF THE A.O. TO DISALLOW THE CLAIM FOR THIS YEAR. FURTHER HONBLE GUJARAT HIGH COURT ON T HE ISSUE OF OUTSTANDING CREDITORS FOR FREIGHT HAS HELD IN THE CASE OF ITO V S. HYLAM SECURITIES & FINANCE (P) LTD. (SUPRA) AS UNDER :- IN THE IMPUGNED ORDER THE TRIBUNAL HAS REFERRED TO T HE PRIMARY AND SUBSIDIARY RECORDS MAINTAINED BY THE ASSESSEE IN THE FORM OF LORRY RECEIPT REGISTERS VOUCHERS LORRY RECEIPTS CONTAINING EACH A ND EVERY ASPECT REGARDING MOVEMENT OF TRUCKS DATE PARTIES AND DETAI LS OF TAX DEDUCTED AT SOURCE. NAMES OF THE CONTRACTORS FROM WHOM THE VE HICLES HAVE BEEN HIRED ARE FOUND TO HAVE BEEN MENTIONED IN THE VOUCH ERS PRODUCED BEFORE THE AO AND NO DEFECTS HAVE BEEN FOUND BY THE AO. TH OUGH THE VOUCHERS ARE SIGNED BY ASSESSEE THE AO HAS REJECTED VOUCHERS ONLY ON THE BASIS THE VOUCHERS BEING INTERNALLY GENERATED BUT THE TRIBU NAL HAS FOUND THAT SUCH A REJECTION IS NOT WARRANTED. THE TRIBUNAL HAS FURTHER FOUND THAT COMPLETE DETAILS OF TAX DEDUCTED AT SOURCE QUA THE PA YMENTS MADE INCLUDING PERMANENT A/C. NUMBERS NAMES AND ADDRESSES OF PARTIES ARE AVAILABLE AND THE ENTRIES IN REGULAR BOOKS OF ACCOUN T ARE MADE ON DAY TO DAY BASIS IN A CHRONOLOGICAL MANNER. IT HAS FURTHER BEE N FOUND BY THE TRIBUNAL THAT IDENTICAL METHOD OF ACCOUNTING AND MAI NTENANCE OF RECORD HAS BEEN ACCEPTED IN EARLIER YEARS AND HIGHER CLAIM O F UNPAID TRANSPORT CHARGES IS ACCEPTED IN ASSESSMENT PROCEEDINGS UNDER S. 143(3). THE TRIBUNAL HAS FURTHER FOUND THAT THE AO HAS NOT BEEN ABLE TO PRODUCE A SINGLE INCIDENT TO ESTABLISH THE CONJECTURE OF PAYME NTS HAVING BEEN MADE IN CASH. THAT IN FACT SUBSEQUENT PAYMENTS HAVE BEEN MADE BY ACCOUNT 8 PAYEE CHEQUES. ON A CUMULATIVE APPRECIATION OF THE EN TIRE EVIDENCE ON RECORD THE TRIBUNAL HAS DELETED THE ADDITION. CONSIDER ING THE FINDINGS RECORDED BY THE TRIBUNAL IT IS NOT POSSIBLE O STATE T HAT ANY LEGAL INFIRMITY EXISTS IN THE IMPUGNED ORDER OF THE TRIBUNAL SO AS TO WARR ANT INTERFERENCE IT IS ALSO NOT POSSIBLE TO STATE THAT THE ORDER SUFFER S FROM VICE OF PERVERSITY IN ABSENCE OF ANY EVIDENCE TO POINT OUT AS TO WHICH OF THE PARAMETERS LIKE CONSIDERATION OF IRRELEVANT EVIDENCE OR IGNORING RE LEVANT EVIDENCE STAND ATTRACTED. IN THE CIRCUMSTANCES IN ABSENCE OF ANY QU ESTION OF LAW MUCH LESS A SUBSTANTIAL QUESTION OF LAW AS PROPOSED OR OTHE RWISE ARISING FROM THE IMPUGNED ORDER OF THE TRIBUNAL THE APPEAL IS DISMISSED . CONSIDERING THE ABOVE AND RESPECTFULLY FOLLOWING TH E AFORESAID DECISION OF HONBLE GUJARAT HIGH COURT WE FIND NO REASON TO IN TERFERE WITH THE ORDER OF THE C.I.T.(A) ON THIS ISSUE. HIS ORDER THEREFO RE DELETING THE ADDITION OF RS.2 14 82.396/- MADE BY THE A.O. ON ACCOUNT OF UNP ROVED SUNDRY CREDITORS IS UPHELD. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER IS PRONOUNCED IN THE COURT ON 21.5.10. SD/- SD/- [D.K. TYAGI] [B.C. MEENA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21-05-2010 COPY FORWARDED TO : 1. APEX CARGO MOVERS & SERVICES P. LTD. 22 RABINDRA SARANI BLOCK-FS 16 1 ST FLOOR KOLKATA-700 073 2. I.T.O. WARD-3(3) KOLKATA. 3. C.I.T.(A)-XIII KOLKATA 4. CIT KOL- 5. THE DEPARTMENTAL REPRESENTATIVE ITAT KOLKATA. TRUE COPY BY ORDER [ DKP] DY. REGISTRAR.