ACIT CIR 1, THANE v. LAL BIHAI YADAV PROP OF M.S, SANJOG TRANSPORT SER5VICE, THANE

ITA 7116/MUM/2010 | 2007-2008
Pronouncement Date: 10-07-2013 | Result: Dismissed

Appeal Details

RSA Number 711619914 RSA 2010
Assessee PAN AADPY0208K
Bench Mumbai
Appeal Number ITA 7116/MUM/2010
Duration Of Justice 2 year(s) 8 month(s) 25 day(s)
Appellant ACIT CIR 1, THANE
Respondent LAL BIHAI YADAV PROP OF M.S, SANJOG TRANSPORT SER5VICE, THANE
Appeal Type Income Tax Appeal
Pronouncement Date 10-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 10-07-2013
Date Of Final Hearing 27-06-2013
Next Hearing Date 27-06-2013
Assessment Year 2007-2008
Appeal Filed On 15-10-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER AND SHRI VIVEK VARMA JUDICIAL MEMBER ITA NO.7116/MUM/2010 ASSESSMENT YEAR : 2007-08 ACIT - CIRCLE - 1 LOWER GROUND FLOOR VARDAAN BUILDING WIE MIDC THANE-400 604. VS. SHRI LAL BIHARI YADAV PROP. OF M/S. SANJOG TRANSPORT SERVICE GALA NO.7 SWATI NAGAR INDL. COMPLEX BEHIND SANTOSH HOTEL MAJIWADA THANE-400 602. PAN NO.AADPY 0208 K (APPELLANT) (R ESPONDENT) ASSESSEE BY : SHRI CHETAN A. KARIA REVENUE BY : SHRI SURINDER JIT SINGH DATE OF HEARING : 27.06.2013 DATE OF PRONOUNCEMENT : 10 .07.2013 O R D E R PER B. RAMAKOTAIAH AM: THIS IS REVENUE APPEAL AGAINST THE ORDER OF CIT(A)- 2 THANE DATED 7.5.2010. THE REVENUE HAS RAISED THE FOLLOWING THRE E GROUNDS :- 1. WHETHER IN FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE HONBLE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITI ON OF RS. 2 10 06 294/- WITHOUT APPRECIATING THE FACT THAT TH E TRANSPORTERS HAVING LESS THAN TWO TRUCKS WERE REQUIRED TO FURNIS H FORM NO. 15-I TO THE ASSESSEE WHICH THEY FAILED TO DO SO AND THE ASS ESSEE ALSO COMPLETELY FAILED TO FURNISH FORM NO.15-J TO THE PR ESCRIBED AUTHORITY THEREBY COMMITTING DEFAULT UNDER THE PROVISION OF S ECTION 40(A)(IA) BY ITA NO.7116/M/10 A.Y.07-08 LAL BIHARI YADAV 2 NOT DEDUCTING TAX AT SOURCE OUT OF THE PAYMENTS MAD E TO SUCH TRANSPORTERS. 2. WHETHER IN FACTS AND CIRCUMSTANCE OF THE CASE AN D IN THE LAW THE HONBLE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITI ON OF RS.86 54 000/- OUT OF TOTAL ADDITION OF RS.1 16 39 441/- MADE U/S 40(A)(IA) WITHOUT APPRECIATING THE FACT THAT THE TRANSPORTERS HAVING LESS THAN TWO TRUCKS WERE REQUIRED TO FURNISH FORM NO. 15-ITO THE ASSESS EE WHICH THEY FAILED TO DO SO AND THE ASSESSEE ALSO COMPLETELY FA ILED TO FURNISH FORM NO. 15-J TO THE PRESCRIBED AUTHORITY THEREBY C OMMITTING DEFAULT UNDER THE PROVISION OF SECTION 40(A)(IA) BY NOT DED UCTING TAX AT SOURCE OUT OF THE PAYMENTS MADE TO SUCH TRANSPORTERS. 3. THE HONBLE CIT(A) ERRED IN HOLDING THAT THE ABO VE PAYMENTS OF RS. 2 10 06 294/- & RS. 86 54 000/- ARE ALLOWABLE EXPEN DITURE WITHOUT APPRECIATING THE FACTS THAT NOT ONLY THE ASSESSEE H AS FAILED TO DEDUCT TAX AT SOURCE BUT THE GENUINENESS OF THE CASH PAYM ENTS MADE TO THE TRANSPORTERS BY THE ASSESSEE AS WELL AS THE GENUINE NESS OF THE CREDITORS ARE ALSO DOUBTFUL AND THE SAME REMAIN UN VERIFIED. 2. BRIEFLY STATED THE ASSESSEE IS A TRANSPORT CONTR ACTOR AND HAS FILED RETURN OF INCOME SHOWING TOTAL INCOME OF RS.7 33 92 0/-. THE ASSESSEE HAS SHOWN TRANSPORT CHARGES RECEIPT AT RS.5.88 CROR ES ON WHICH VARIOUS EXPENSES WERE CLAIMED. THE MAJOR EXPENSE IS ON ACCO UNT OF TRANSPORTATION CHARGES PAID TOTALING TO RS.3 88 74 380/-. THE ASSESSEE PAID AN AMOUNT OF RS.1 16 39 441/- DURING THE YEAR AND PROVIDED AN AMOUNT OF RS.3 72 34 939/- IN THE BOOKS OF ACCOUNT. THE AO ENQUIRED ABOUT THE DETAILS AND AFTER TAKING DETAILS FROM THE ASSESSEE AN AMOUNT OF RS.1 16 39 441/- WAS DISALLOWED AND ADDED BACK T O THE INCOME RETURNED BY APPLYING THE PROVISIONS OF SECTION 40( A)(IA) ON THE REASON THAT TDS HAS NOT BEEN DEDUCTED ON THE ABOVE AMOUNT. WITH RESPECT TO BALANCE OF THE AMOUNT OF RS.2 72 34 939/- EVEN THOU GH THE AO OPINED THAT TDS PROVISIONS ARE APPLICABLE THE ENTIRE AMOU NT WAS DISALLOWED AS UNEXPLAINED EXPENDITURE UNDER SECTION 69C. 3. BEFORE THE LD. CIT(A) THE ASSESSEE CONTESTED THA T THE PROVISION OF EXPENDITURE MADE IN THE BOOKS OF ACCOUNT CANNOT BE TREATED AS ITA NO.7116/M/10 A.Y.07-08 LAL BIHARI YADAV 3 UNEXPLAINED EXPENDITURE UNDER SECTION 69C THE ARGU MENT OF WHICH WAS ACCEPTED AS LD. CIT(A) AND ON THAT REASON DELETED T HE ADDITION. HOWEVER THE LD. CIT(A) REFERRED TO THE ADDITIONAL INFORMATI ON FILED BY THE ASSESSEE IN RESPECT OF TDS TO BE MADE ON THE ABOVE AMOUNTS T O THE AO IN REMAND AS ENOUGH OPPORTUNITY WAS NOT GIVEN BY THE AO IN TH E COURSE OF ASSESSMENT PROCEEDINGS. THE AO VIDE REPORT DATED 21 .06.2010 MADE VARIOUS SUBMISSIONS AFTER DUE EXAMINATION OF THE DO CUMENTS FILED BY THE AO. THE SAME AO WHO COMPLETED THE ASSESSMENT HAS GI VEN HIS 10-PAGE REMAND REPORT TO THE CIT(A). IN THE REMAND REPORT THE AO RECOMMENDED THAT OUT OF RS.1 16 39 441/- PAID DURING THE YEAR BY THE ASSESSEE HE WAS OF THE OPINION THAT AN AMOUNT OF RS.13 67 371/- WAS PAID TO THE COMPANY AND FIRMS WITHOUT TDS. AN AMOUNT OF RS.4 49 654/- WAS PAID TO INDIVIDUALS HAVING MORE THAN TWO TRUCKS. AMONG T HE INDIVIDUALS WHO HAVE LESS THAN TWO TRUCKS MAY NOT BE COVERED BY TDS THE AO ACCEPTED AN AMOUNT OF RS.86 54 000/- WHO HAVE FURNISHED P.A. NOS. OUT OF THE BALANCE AMOUNT OF RS.11 68 416/- THE AO SUGGESTED 5 0% DISALLOWANCE AS SAID INDIVIDUALS DOES NOT HAVE P.A.NOS. THE LD. CIT(A) HOWEVER WHILE CONFIRMING THE AMOUNTS PAID TO COMPANIES AND FIRMS AND INDIVIDUALS HAVING MORE THAN TWO TRUCKS DID NOT AGREE WITH THE 540% DISALLOWANCE SUGGESTED BY AO BUT CONFIRMED THE ENTIRE AMOUNT OF RS.11 68 416/-. ACCORDINGLY AS AGAINST RS.24 01 233/- DISALLOWANCE SUGGESTED BY THE AO THE LD. CIT(A) CONFIRMED RS.29 85 441/-. THE DETAIL S CAN BE TABULATED AS UNDER :- PAYMENT MADE TO AMOUNT( RS.) DISALLOWANCE SUGGESTED BY AO IN REMAND REPORT DISALLOWANCE CONFIRMED BY CIT(A) COMPA NY AND FIRMS 13 67 371 13 67 371 13 67 371 INDIVIDUAL HAVING MORE THAN 2 TRUCKS 4 49 654 4 49 654 4 49 654 INDIVIDUALS WITH LESS 11 68 416 5 84 208 11 68 416 ITA NO.7116/M/10 A.Y.07-08 LAL BIHARI YADAV 4 THAN 2 TRUCKS BUT PAN NOT AVAILABLE ONDIVIDUALS WITH LESS THAN 2 TRUCKS AND PAN FURNISHED 86 54 000 NIL NIL TOTAL 1 16 39 441 24 01 233 29 85 441 3.1 WITH REFERENCE TO THE DISALLOWANCE OF RS.2 72 3 4 939/- MADE BY THE AO AS UNEXPLAINED EXPENDITURE THE AO WAS ASKED TO EXAMINE THIS AMOUNT ALSO. THE AO AFTER EXAMINATION CATEGORIZED T HE AMOUNT PROVIDED IN THE SAME MANNER AND SUGGESTED DISALLOWANCE OF AM OUNT PROVIDED FOR COMPANIES FIRMS AT RS.8 29 049/- INDIVIDUALS HAVIN G MORE THAN TWO TRUCKS AT RS.10 70 867/- AND 50% DISALLOWANCE FOR T HE INDIVIDUALS LESS THAN TWO TRUCKS BUT DO NOT HAVE P.A. NOS. AT RS.21 64 465/- AND BALANCE AMOUNT OF RS.2 10 06 294/- PERTAINING TO INDIVIDUAL S HAVING LESS THAN TWO TRUCKS AND HAVING PANOS WAS ACCEPTED. THE LD. C IT(A) HOWEVER WHILE CONFIRMING THE AMOUNTS PERTAINING TO 1 AND 2 AS SUG GESTED BY AO DISALLOWED THE ENTIRE AMOUNT PERTAINING TO INDIVIDU ALS WITH LESS THAN TWO TRUCK AND P.A. NO. NOT AVAILABLE AT RS.43 28 729/-. THUS CIT(A) CONFIRMED AN AMOUNT OF RS.62 28 645/- AS AGAINST RS .40 64 381/- SUGGESTED BY AO IN THE REMAND REPORT. THESE DETAILS ARE TABULATED AS UNDER :- PAYMENT MADE TO AMOUNT( RS.) DISALLOWANCE SUGGESTED BY AO IN REMAND REPORT DISALLOWANCE CONFIRMED BY CIT(A) COMPANY AND FIRMS 8 29 049 8 29 049 8 29 049 INDIVIDUAL HAVING MORE THAN 2 TRUCKS 10 70 867 10 70 867 10 70 867 INDIVIDUALS WITH LESS 43 28 729 21 64 465 43 28 729 ITA NO.7116/M/10 A.Y.07-08 LAL BIHARI YADAV 5 THAN 2 TR UCKS BUT PAN NOT AVAILABLE ONDIVIDUALS WITH LESS THAN 2 TRUCKS AND PAN FURNISHED 2 10 06 294 NIL NIL TOTAL 2 72 34 939 40 64 381 62 28 645 THE ASSESSEE ACCEPTED THE ORDERS OF THE CIT(A) AND DID NOT PREFER ANY APPEAL WHEREAS THE REVENUE CAME UP IN SECOND APPE AL. 3.2 THE LD. DR REFERRING TO THE ORDER OF AO REQUEST ED FOR SETTING ASIDE THE ISSUE TO EXAMINE THE TDS PAYMENTS. LD. COUNSEL HOWEVER SUBMITTED THAT CIT(A) CONFIRMED MORE AMOUNT THAN WHAT WAS REC OMMENDED BY AO IN THE REMAND REPORT AND SUBMITTED THAT THERE WAS N O CASE MADE OUT BY THE REVENUE TO COME IN APPEAL. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND EXA MINED THE RECORD. WE ARE UNABLE TO UNDERSTAND THE REASONS FOR THE REV ENUE COMING IN SECOND APPEAL WHEN THE LD. CIT(A) SENT THE MATTER O N REMAND TO THE SAME AO WHO COMPLETED THE ASSESSMENT. AS STATED ABO VE THE LD. CIT(A) CONFIRMED MORE AMOUNT THAN WHAT WAS RECOMMENDED BY THE AO IN THE REMAND REPORT. THE AO THEREFORE SHOULD NOT HAVE ANY GRIEVANCE AGAINST THE ORDER OF CIT(A). IN OUR CONSIDERED OPINION REV ENUE DOES NOT HAVE ANY GRIEVANCE TO COME UP IN SECOND APPEAL WHEN THE SAME AO WHO COMPLETED ASSESSMENT HAS SENT A REMAND REPORT AND L D. CIT(A) FOLLOWED THE REMAND REPORT ON SOME ISSUES AND CONFIRMED MORE THAN WHAT WAS RECOMMENDED BY AO. MOREOVER THE GROUNDS RAISED ALS O CAN NOT BE CONSIDERED AS FILING FORM -15 IS A SEPARATE ASPECT AND DOES NOT ARISE EITHER IN ASSESSMENT ORDER OR IN CIT(A) ORDER AND T HAT ISSUE COULD HAVE BEEN EXAMINED SEPARATELY UNDER THE PROVISIONS OF TD S. FOR THESE ITA NO.7116/M/10 A.Y.07-08 LAL BIHARI YADAV 6 REASONS WE ARE UNABLE TO AGREE WITH THE CONTENTION S RAISED IN THE REVENUE APPEAL. GROUNDS ARE REJECTED. 5. IN THE RESULT REVENUE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.07.2013. SD/- SD/- (VIVEK VARMA ) JUDICIAL MEMBER (B. RAMAKOTAIAH ) ACCOUNTANT MEMBER MUMBAI DATED: 10/07/2013. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.