DCIT 13(2), MUMBAI v. MUMBAI ROAD CARRIERS, MUMBAI

ITA 800/MUM/2010 | 2006-2007
Pronouncement Date: 30-09-2011 | Result: Dismissed

Appeal Details

RSA Number 80019914 RSA 2010
Assessee PAN AAFFM6773P
Bench Mumbai
Appeal Number ITA 800/MUM/2010
Duration Of Justice 1 year(s) 7 month(s) 27 day(s)
Appellant DCIT 13(2), MUMBAI
Respondent MUMBAI ROAD CARRIERS, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-09-2011
Date Of Final Hearing 17-08-2011
Next Hearing Date 17-08-2011
Assessment Year 2006-2007
Appeal Filed On 02-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH MUMBAI BEFORE SHRI J. SUDHAKAR REDDY ACCOUNTANT MEMBER AN D SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 800/MUM./2010 (ASSESSMENT YEAR : 2006-07 ) ASSTT. COMMISSIONER OF INCOME TAX-13(2) 477 AAYUAKAR BHAVAN 101 M.K. ROAD MUMBAI 400 020 .. APPELLANT V/S M/S. MUMBAI ROAD CARRIERS 105 PRESTIGE CHAMBERS KALYAN STATION MUMBAI 400 009 PAN AAFFM6773P .... RESPONDENT REVENUE BY : MR. PRADEEP SHARMA ASSESSEE BY : MR. NITESH JOSHI DATE OF HEARING 18.08.2011 DATE OF ORDER 30.09.2011 O R D E R PER J. SUDHAKAR REDDY A.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE IMPUGNED ORDER DATED 30 TH NOVEMBER 2009 PASSED BY THE COMMISSIONER (APPEALS)-XXIV MUMBAI FOR ASSESSMENT YEAR 2006-07 . THE FIRST DISPUTE IN THIS APPEAL IS WHETHER OR NOT THE COMMISSIONER (AP PEALS) WAS JUSTIFIED IN DELETING THE ADDITION OF ` 3 40 64 622 MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) OF THE INCOME TAX ACT 1961 (FOR SHORT THE ACT ). M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 2 2. BRIEF FACTS OF THE CASE AS BROUGHT OUT IN PARAS-2 AND 2.1 OF THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) ARE EXTRACTED BELOW:- 2. THE 1 ST GROUND OF APPEAL RELATES TO DISALLOWANCE OF ` 3 40 64 622 U/S 40(A)(IA) MADE ON ACCOUNT OF NON-DE DUCTION OF TDS AND BASED UPON THE NOTE OF THE AUDITOR AS FOLLOWS:- IN ABSENCE OF PROPER EVIDENCE WE ARE UNABLE TO CE RTIFY WHETHER PROPER TDS IS DEDUCTED OR NOT IN RESPECT OF CONTRACTUAL OBLIGATION. 2.1 THE BRIEF FACTS OF THIS CASE ARE THAT THE APPEL LANT HAD DEDUCTED TDS OF ` 99 122 CORRESPONDING TO FREIGHT PAID OF ` 89 07 453 ONLY AND FOR THE BALANCE A LIST OF 157 PARTIES WAS SUBMITTED TO WHOM LORRY HIRE CHARGES WERE PAID TOTALING ` 7 16 243. OUT OF THIS AN AMOUNT OF ` 2 86 74 168 PERTAIN TO EXPENSES ON OWN LORRIES AND NOT EXCEEDING ` 50 000. THE A.O. AFTER REDUCING THIS AMOUNT TREATED THE BALANCE OF ` 4 29 72 075 AS LIABLE FOR TDS DEDUCTION UNDER SECTI ON 194C AND SINCE APPELLANT HAD DEDUCTED TDS OF ` 99 122 ONLY GAVE THE BENEFIT OF ` 89 07 453 TREATED THE APPELLANT AS IN DEFAULT FOR T HE REMAINING AMOUNT OF ` 3 40 64 622 AND DISALLOWED THIS U/S 40(A)(IA) OF T HE ACT. THE A.O. FURTHER OBSERVED THAT THE LIST OF 157 PAR TIES GIVEN BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PROCE EDINGS CONTAINING FORM NO.15I FOR EXEMPTION FROM TDS DEDUCTION HAD A LOT OF DISCREPANCIES WHICH RENDERED THE DECLARATION IN FOR M NO.15-I AS INVALID INASMUCH AS THESE DECLARATIONS WERE UNDATED AND IS NOT CONTAIN THE ADDRESS OF THE PARTIES AND THE MOST GLARING DIS CREPANCY WAS ABSENCE OF THE FINANCIAL YEAR FOR WHICH THE DECLARA TION WAS RELEVANT AS ALSO THE RELEVANT FINANCIAL YEAR MENTIONED AS 2007- 08 AND 2008-09 AND NOT THE YEAR UNDER CONSIDERATION I.E. A.Y. 200 6-07. ALSO THESE DECLARATIONS IN FORM NO.15-I MADE BY THE PAYEES WER E NOT IFLED BEFORE THE DESIGNATED AUTHORITY AS PER THE REQUIREMENTS OF LAW. THE APPELLANT HAD ALSO FAILED TO BRING ANY EVIDENCE ON RECORD TO SUBSTANTIATE ITS CLAIM THAT THE DECLARATION IN FORM NO.15-I WERE REC EIVED DURING THE YEAR UNDER CONSIDERATION. NO EVIDENCE WAS FURNISHED TO BRING ON RECORD THAT THESE DECLARATIONS WERE FILED BEFORE TH E DESIGNATED AUTHORITY BY THE PAYEES AND FOR THIS NO REASONABLE CAUSE WAS ALSO PUT FORTH BY THE APPELLANT. IT APPEARS THAT APPELLANT W ITH A VIEW TO ESCAPE THE MANDATORY DISALLOWANCE OF THE EXPENDITURE FOR F AILURE TO DEDUCT TDS RESORTED TO THE RUSE OF MANIPULATING CERTAIN DO CUMENTS AND FURNISH THE SAME TO THE A.O. THAT IS WHY THEY WERE RIDDLED WITH THESE DISCREPANCIES AND THE AUDITORS REMARKS MENTIONED AB OVE CLEARLY SHOW THAT APPELLANT HAD VIOLATED THE PROVISIONS OF SECTI ON 40(A)(IA) AND THE DISALLOWANCE HAD TO BE MADE OF ` 3 40 64 622. ACCORDINGLY THE A.O. DISALLOWED THE SAME. 3. THE ASSESSEE BEING AGGRIEVED BY THE ORDER PASSED B Y THE ASSESSING OFFICER CARRIED THE MATTER BEFORE THE FIRST APPELL ATE AUTHORITY WHEREIN THE M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 3 COMMISSIONER (APPEALS) HAD CALLED FOR THE REMAND RE PORT WHICH WAS SUBMITTED BY THE ASSESSING OFFICER ON 19 TH AUGUST 2009 STATING THAT OUT OF A LIST OF 157 PARTIES NOTICE UNDER SECTION 133(6) WAS ISSUED ON 11 PARTIES AND THAT NONE OF THE NOTICES WERE ANSWERED BY THE P ARTIES BARRING ONE I.E. M/S. BEST ROADWAYS LTD. THE ASSESSING OFFICER FURTH ER REPORTED THAT THE WHOLE TRANSACTION WAS COLLUSIVE ALTHOUGH THE APPE LLANT HAD SUBMITTED CONFIRMATION FROM ALL THE PARTIES FROM HIS SIDE. HE FURTHER CONCLUDED THAT PROBABILITIES WOULD SUGGEST THAT ALL THE PARTIES TO WHOM NOTICES UNDER SECTION 133(6) WERE ISSUED WERE IN TOUCH WITH THE ASSESSEE. IT WAS ACKNOWLEDGED THAT THE ASSESSEE HAD OBTAINED CONFIRM ATIONS FROM ALL THE PARTIES AND SUBMITTED THE SAME TO THE ASSESSING OFF ICER AND INFORMATION SUBMITTED WAS THAT WHICH WAS CALLED FOR IN THE NOT ICES ISSUED UNDER SECTION 133(6) OF THE ACT. THE COMMISSIONER (APPEALS) AFTE R CONSIDERING THE VARIOUS ARGUMENTS OF THE ASSESSEE AND THE INFORMATI ON FILED GRANTED RELIEF TO THE ASSESSEE. AGGRIEVED THE REVENUE IS IN APPEA L BEFORE THE TRIBUNAL. 4. BEFORE US LEARNED DEPARTMENTAL REPRESENTATIVE MR. PRADEEP SHARMA ON BEHALF OF THE REVENUE SUBMITTED THAT THE AUDITO RS OF THE ASSESSEE HAD IN THEIR AUDIT REPORT CLEARLY STATED THAT THERE IS NO PROPER EVIDENCE TO ENABLE THEM TO CERTIFY THAT PROPER TDS IS DEDUCTED IN RESP ECT OF CONTRACTUAL OBLIGATIONS. HE THUS SUBMITTED THAT THE CIRCUMSTAN TIAL EVIDENCES DEMONSTRATE THAT FORM NO.15-I CLAIMING EXEMPTION F ROM TDS WAS NOT AVAILABLE WITH THE ASSESSEE AT THE TIME OF MAKING O F THE PAYMENTS UNDER THE CONTRACTUAL OBLIGATIONS. HE VEHEMENTLY CONTENDED TH AT FORM NO.15-I IS NEITHER RELIABLE NOR PROPERLY VERIFIED AND ALSO NOT SUBSTANTIATED. HE SUBMITS THAT IT IS APPARENT THAT THESE FORMS WERE NOT TAKEN BEFORE THE PAYMENT WAS MADE AS THEY WERE NOT EVEN BEFORE THE AUDITORS. HE CLAIMED THAT THERE WERE MAJOR DEFECTS IN FORMS NO.15-I AND IT IS NOT A CASE OF MERELY MINOR ERRORS. HE POINTED OUT THAT MOST OF THE FORMS NO.15-I DO N OT CONTAINED THE DATE OF ISSUE OR THE PROPER ADDRESS. HE SUBMITTED THAT THE ASSESSEE IS SHIFTING HIS STANDS. HE REFERRED TO THE CIRCULAR NO.715 DATED 8 TH AUGUST 1995 SPECIFICALLY TO QUES.9 AND ANSWER THEREOF AND SUBMITTED THAT QUE STION AND ANSWER SHOULD BE UNDERSTOOD IN THEIR PROPER PERSPECT IVE. THE QUESTION M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 4 RELATED TO THE PAYMENT FOR SEVERAL G.RS UNDER THE ONE BILL ONLY IN CASES WHERE GOODS ARE TRANSPORTED AT ONE TIME. HE POINTED OUT THAT IF GOODS ARE TRANSPORTED CONTINUOUSLY THEN EACH GR WILL NOT BE A SEPARATE CONTRACT. HE SUBMITTED THAT THE COMMISSIONER (APPEALS) IS FACTUA LLY INCORRECT IN HOLDING THAT EACH OF THE OWNERS WHO HAD GIVEN FORM NO.15-I DID NOT HAVE MORE THAN TWO TRUCKS. HE DISTINGUISHED THE CASE LAWS REL IED UPON BY THE COMMISSIONER (APPEALS) AND CASE LAWS REFERRED TO BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. 5. LEARNED COUNSEL MR. NITESH JOSHI ON BEHALF OF THE ASSESSEE POINTED OUT THAT THE EXPENDITURE CLAIMED BY THE ASSESSEE WA S ABOUT ` 7 16 00 000 OUT OF WHICH TDS HAS BEEN DEDUCTED AND PAID ON THE EXPENDITURE OF ` 89 00 000 AND THE ASSESSEES TURNOVER FROM OWN LORR IES WAS AROUND ` 2 86 00 000 WHICH LEAVES A BALANCE OF ` 3 40 00 000 AND SUBMITTED THAT THE ISSUE NARROWS DOWN TO WHETHER THE PROVISIONS OF SECTION 194C OF THE ACT WOULD APPLY IN RESPECT OF THE AMOUNT OF ` 3 40 64 622. HE FURTHER REFERRED TO PARA-2.3/PAGE-9 OF THE IMPUGNED ORDER PASSED BY THE COMMISSIONER (APPEALS) AND POINTED OUT THAT OUT OF THIS AMOUNT ` 3 40 00 000 ` 5 22 000 RELATED TO EXPENDITURE MADE ON LOCAL TEMPOS ETC. WHEREIN THE PAYMENTS DID NOT EXCEED ` 20 000 AND ` 14 19 000 WERE MADE TO SINGLE VEHICLE OWNERS AND ` 90 303 WAS MADE TO RAILWAYS. THE BALANCE ACCORDI NG TO LEARNED COUNSEL CAN BE SPLIT INTO TWO CATEGORIES I .E. WHERE EACH G.R. IS BELOW ` 5 000 AND THE TOTAL PAYMENT TO THAT PARTICULAR LOR RY OWNER IS LESS THAN 50 000 WHICH AMOUNTED TO ` 2 76 73 789 AND THE BALANCE AMOUNT WHERE THE ASSESSEE WAS REQUIRED TO FURNISH FORM NO. 15-I AMOUNTING TO ` 44 05 281. HE SUBMITTED THAT THIS AMOUNT OF ` 44 05 281 PERTAIN TO 65 PARTIES. HE CONTENDED THAT THE ASSESSEE HAD NO CONT RACT WITH THE AGENTS OR THE SUPPLIERS OF TRUCKS AND THAT THESE PERSONS WERE CHARGING COMMISSION FROM THE TRUCK OWNERS DRIVERS AND NOT FROM THE ASS ESSEE. REFERRING TO THE NOTICE UNDER SECTION 133(6) LEARNED COUNSEL POINTE D OUT THAT THESE WERE ISSUED TO THE BROKERS AND COMMISSION AGENTS AND NOT FROM THE TRUCK OWNERS WHO HAD FILED FORM NO.15-I. HE SUBMITTED THAT AS P ER LAW THE ASSESSEE WAS REQUIRED TO FILE FORM NO.15-I ONLY IN RESPECT OF 65 CASES AMOUNTING TO ` M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 5 44 05 281 AND IT WAS OUT OF ABUNDANT CAUTION THAT F ORM NO.15-I WAS COLLECTED FROM OTHER TRUCK OWNERS WHOSE AGGREGATE BILL WITH THE ASSESSEE DID NOT EXCEED ` 50 000 PER ANNUM. HE POINTED OUT THAT FROM ALL THE 65 PARTIES IN QUESTION FORM NO.15-I WAS OBTAINED AND FILED. HE SUBMITTED THAT JUST BECAUSE THE ASSESSEE OBTAINED THE INFORMATION AND FILED THE SAME WITH THE ASSESSING OFFICER NO ADVERSE INFERENCE CAN BE DRAWN AND IT IS WRONG ON BEHALF OF THE LEARNED DEPARTMENTAL REPRESENTATIVE T O SAY THAT THE ASSESSEE INFLUENCED THE PARTIES. REGARDING PROVISIONS OF SEC TION 194C(2) LEARNED COUNSEL SUBMITTED THAT THIS IS A LEGAL ISSUE AND TH E ASSESSEE IS ENTITLED TO RAISE THE SAME BEFORE THE COMMISSIONER (APPEALS) AN D NO ADVERSE INFERENCE CAN BE DRAWN FROM THE SAME. FOR THE PROPOSITION THA T A NEW GROUND CAN BE RAISED BY THE DEFENCE HE RELIED ON THE FOLLOWING C ASE LAWS:- B.R. BAMASI VS CIT (1970) 83 ITR 223 (BOM.); ITO V/S RAMA NAND & CO. & ORS. (1987) 163 ITR 702 ( P&H); AND CIT V/S BHAGWATI STEELS (2010) 326 ITR 108 (P&H) 6. LEARNED COUNSEL REFERRED TO THE CASE LAWS RELIED UP ON BY THE ASSESSEE BEFORE THE COMMISSIONER (APPEALS) AND RELIED ON SAM E. REFERRING TO A LIST OF 157 PARTIES REFERRED TO IN THE REMAND REPORT HE SUB MITTED THAT THESE PARTIES WERE BROKERS AND NOT LORRY OWNERS AND THAT NOTICES UNDER SECTION 133(6) WERE ISSUED TO ONLY TO 11 BROKERS. HE SUBMITTED THA T THE TOTAL NUMBER OF TRUCKS WAS 3 892 AND THE ASSESSEE FILED 870 DECLARA TIONS THOUGH WERE ISSUED UNDER SECTION 133(6) TO ONLY 11 BROKERS AND COMMISSION AGENTS. THUS HE SUBMITTED THAT NOTHING TURNS ON THIS ASPEC T. 7. REFERRING TO THE SUBMISSIONS OF THE COMMISSIONER (A PPEALS) THAT FORM NO.15-I ARE NOT RELIABLE OR SUBSTANTIATED THE LEAR NED COUNSEL POINTED OUT THAT THE COMMISSIONER (APPEALS) CALLED FOR THE REMA ND REPORT FROM THE ASSESSING OFFICER ON THIS ASPECT AND THE ASSESSING OFFICER HAS NOT INVESTIGATED OR COMMENTED ON THE SAME. HE REFERRED TO PAGE-163 OF THE PAPER BOOK WHICH CONSIST OF COPY OF REMAND REPORT A ND SUBMITTED THAT WHEN NO ADVERSE COMMENT IS MADE BY THE ASSESSING OFFICER THE FACTS HAVE TO BE ACCEPTED AS CORRECT. HE RELIED ON ORDER OF THE MUM BAI BENCH OF THE TRIBUNAL M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 6 IN THE CASE OF CITY TRANSPORT CORPN. V/S ITO (2007 ) 13 SOT 479 (MUM.) AND REFERRING TO PAGE-480 HE SUBMITTED THAT THE ON US SHIFTS TO THE DEPARTMENT WHEN THE ASSESSEE FILED ALL THE REQUIRED INFORMATION. HE RELIED ON THE FOLLOWING CASE LAWS:- ITP V/S BHORUKA ROADLINES LTD. (2009) 117 ITR 311 (MUM.); AND MYTHRI TRANSPORT CORPORATION V/S ACIT 124 ITD 40 ( MUM.) 8. HE CONTENDED THAT THE REVENUE HAS NOT DEMONSTRATED THAT THERE IS EITHER AN ORAL ORDER OR A WRITTEN CONTRACT. REFERRI NG TO THE DISCLAIMER MADE BY THE AUDITOR THE LEARNED COUNSEL SUBMITTED THAT THE AUDITORS DISCLOSURE REQUIREMENTS WERE DIFFERENT AND IT DOES NOT PROVE T HAT THE ASSESSEE DOES NOT HAVE THE MANDATORY DECLARATION BY WAY OF FORM N O.15-I. REFERRING TO THE PROVISIONS OF FORM NO.15-I COPIES OF WHICH WER E FILED BY WAY OF PAPER BOOK LEARNED COUNSEL SUBMITTED THAT THE DATES OF S IGNING WERE MENTIONED IN MANY SUCH FORMS. HE ALSO POINTED OUT THAT THE ADDRE SS HAS BEEN PROVIDED IN THE FORM ALONG WITH TRUCK NUMBER ETC. HE SUBMITTED THAT THE PRESUMPTION IS IN FAVOUR OF THE ASSESSEE UNLESS OTHERWISE PROVED. HE VEHEMENTLY CONTENDED THAT THE ASSESSING OFFICER HAS NOT INVEST IGATED THE CASE. HE POINTED OUT THAT THE COMMISSIONER (APPEALS) CALLED FOR THE REMAND REPORT ON 26 TH JUNE 2009 AND DESPITE THE SAME THERE WAS NO INVE STIGATION OR EVIDENCE BROUGHT OUT BY THE ASSESSING OFFICER. HE S UBMITTED THAT PERMANENT ACCOUNT NUMBER NEED NOT BE COMPULSORILY MENTIONED A ND THAT THIS ASPECT IS EVIDENCED FROM FORM NO.15-I ITSELF. HE SUBMITTED TH AT ASSUMING WITHOUT CONCEDING THAT THERE ARE DEFECTS IN FORM NO.15-I T HEN THE CORRECT COURSE OF ACTION FOR THE A.O. WOULD BE TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO RECTIFY THE DEFECTS FOR WHICH PROPOSITION HE RELIED ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN VIJAY HEMANT FINANCE & ESTATES LTD. V/S ITO & ANR. (1999) 238 ITR 282 (MAD.). HE SUBMITTED THAT THE AS SESSEE HAD FILED THE RETURNS AS PER RULE 29 ALONG WITH FORM NO.15-I BEF ORE THE COMMISSIONER OF INCOME TAX AND THE SAME HAS BEEN ACCEPTED THOUGH T HERE WAS A DELAY AND THAT NO DEFECTS WERE POINTED OUT IN THESE RETURNS O R FORMS. HE POINTED OUT THAT THE ASSESSING OFFICER NEITHER REJECTED ANY OF THE INFORMATION FILED BY THE ASSESSEE NOR TOOK ANY STEP TO EXAMINE WHETHER THIS INFORMATION WAS RIGHT OR M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 7 WRONG AND THAT HE FAILED TO DEMONSTRATE THAT THE IN FORMATION FURNISHED IS INCORRECT. HE FILED COPY OF ASSESSMENT ORDERS OF TH E SUBSEQUENT ASSESSMENT YEARS AND SUBMITTED THAT NO DISALLOWANCE HAS BEEN M ADE IN THESE YEARS AND THAT ALL THE FORM NO.15-IS WERE ACCEPTED. HE ARGUE D THAT IN THE ABSENCE OF ANY MATERIAL TO THE CONTRARY THE FORM NO.15-I HAVE TO BE ACCEPTED AS GENUINE AND THE ASSESSEE GRANTED RELIEF. 9. IN HIS REJOINDER THE LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT THE ASSESSING OFFICER HAS A LIMITED MANDATE IN REMAND PROCEEDINGS AND THE ASSESSING OFFICER CANNOT BE BLAMED FOR NOT INVE STIGATING. HE POINTED OUT THAT THE AUDITORS REFERRED TO CONTRACTUAL OBLIGATIO NS AND THE ASSESSEE HIMSELF STATED THAT THIS IS A CASE FOR SUB-CONTRACT IN THE STATEMENT OF FACTS. 10. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON PERUSAL OF THE PAP ERS ON RECORD AS WELL AS THE CASE LAWS CITED BEFORE US WE HOLD AS FOLLOWS:- 11. THE ASSESSING OFFICER IN THIS CASE DISALLOWED AN AMOUNT OF ` 3 40 64 622 UNDER SECTION 40(A)(IA). THE COMMISSION ER (APPEALS) AFTER OBTAINING A REMAND REPORT HAS GIVEN A BREAK UP OF T HIS FIGURE AND CAME TO A CONCLUSION THAT IT WAS ONLY IN 65 CASES AMOUNTING IN ALL TO ` 44 05 281 FORM NO.15-I WAS REQUIRED TO BE TAKEN AND FILED. RE GARDING THE AMOUNT OF ` 2 76 17 789 EACH OF THE G.R. IN QUESTION WAS LESS THAN ` 5 000 AND AGGREGATE PAYMENT PER YEAR TO A PARTICULAR PARTY WA S LESS THAN ` 50 000. HENCE THE LAW DOES NOT REQUIRE FILING OF FORM NO.1 5-I NOR DEDUCTION OF TAX IS REQUIRED. AN AMOUNT OF ` 5 22 000 WAS PAID TO LOCAL TEMPOS AND AN AMOUNT OF ` 14 19 000 WAS PAID TO SINGLE TRUCK OWNERS. AN AMOU NT OF ` 90 303 WAS PAID TO THE RAILWAYS AND ALL THESE PAYME NTS ARE OUTSIDE THE PURVIEW OF SECTION 194C. THIS BREAK GIVEN BY THE CO MMISSIONER (APPEALS) FROM OUT OF TOTAL HIRE CHARGES PAID AMOUNTING TO ` 7 16 46 243 HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER IN THE REMAN D REPORT. BEFORE US THE C.I.T. (D.R) ALSO COULD NOT POINT OUT ANY MISTAKE I N THESE FIGURES AND PARTICULARS. IN THE ABSENCE OF SUCH FACTUAL DISPUTE WE CONFINE OURSELVES TO THE ALLOWABILITY OF ` 44 05 281 UNDER SECTION 40(A)(IA) AS ALL THE OTHE R M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 8 PAYMENTS ARE OUT OF THE PURVIEW OF SECTION 194C. TH E UNDISPUTED FACT IS THAT THE ASSESSEE HAD FILED FORM NO.15-I FROM ALL THESE 65 PARTIES. IN THESE FORMS THE ADDRESS OF THE PARTIES DATE TRUCK REGI STRATION NUMBER ETC. HAVE BEEN GIVEN. PERMANENT ACCOUNT NUMBERS HAVE NOT BEEN GIVEN. NEVERTHELESS COL.3 OF FORM NO.15-I MAKES IT CLEA R THAT PERMANENT ACCOUNT NUMBER NEED NOT BE GIVEN ONLY IN CASE WHERE THE TRU CK OWNERS HAS A PERMANENT ACCOUNT NUMBER. THE ASSESSEE HAS ALSO FIL ED THE RETURN AS WELL AS FORM NO.15-IS IN TERMS OF RULE-29 BEFORE THE CO MMISSIONER THOUGH WITH A DELAY AND THERE IS NO ADVERSE OBSERVATIONS MADE B Y THE COMMISSIONER. IN FACT ALL THESE FORM NO.15S ARE ACCEPTED BY THE LD . COMMISSIONER OF INCOME TAX. THE ASSESSEE IN THIS CASE HAS OBTAINED AND S UBMITTED ALL THE REQUIRED INFORMATION EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE COMMISSIONER (APPEALS). IT IS NOBODYS CASE THAT INFORMATION HAS NOT SUBMITTED. THE GRIEVANCE SEEMS TO BE THAT THE ASSESSEE FILED THE I NFORMATION AND NOT THE PARTY DIRECTLY. THIS IS NO GROUND FOR REJECTING A C LAIM. THE INFORMATION WAS IN FACT NOT ASKED DIRECTLY FROM THE LORRY OWNERS. AS R IGHTLY POINTED OUT BY THE LEARNED COUNSEL IF IT WAS A CASE OF THE ASSESSING OFFICER THAT THERE ARE CERTAIN DEFECTS OR MISTAKES IN FORM NO.15-I THEN T HE ASSESSING OFFICER IS DUTY BOUND TO GIVE THE ASSESSEE AN OPPORTUNITY TO R ECTIFY THE DEFECTS. WITHOUT GIVING SUCH AN OPPORTUNITY NO ADVERSE INFE RENCE CAN BE TAKEN. THE ASSESSING OFFICER HAS NOT DONE ANY INVESTIGATION OR VERIFICATION ON THE FORM NO.15-IS FILED BY THE ASSESSEE. NO ENQUIRY IS CON DUCTED TO PROVE THAT INFORMATION GIVEN IS FALSE OR INCORRECT. NOTICES UN DER SECTION 133(6) WERE GIVEN ONLY IN 11 CASES AND THAT TOO TO BROKERS AND COMMISSION AGENTS AND NOT TO THE TRUCK OWNERS. ONCE THE ASSESSEE HAS SUBM ITTED ALL THE DOCUMENTS AND INFORMATION THAT WERE REQUIRED BY THE ASSESSING OFFICER THE ASSESSEE HAS DISCHARGED ITS BURDEN TO PROVE AND THE ONUS SHI FTS ON THE REVENUE AND IN THE ABSENCE OF ADVERSE MATERIAL AND EVIDENCE AND WITHOUT AT LEAST AN ATTEMPT TO INVESTIGATE THE DOCUMENTS CANNOT BE REJ ECTED. COMING TO THE DECISION OF VISAKHAPATNAM BENCH OF THE TRIBUNAL IN THE CASE OF M/S. MYTHRI TRANSPORT CORPORATION (SUPRA) WE ARE OF THE CONSID ERED OPINION THAT THE FACTS OF THIS CASE THE CASE LAW SQUARELY APPLIES. I N OUR OPINION THE ASSESSEE STANDS ON A MUCH STRONGER FOOTING THEN THE ASSESSEE THAT CASE AS IT IS NOT A M/S. MUMBAI ROAD CARRIERS ITA NO.800/M/2010 9 CASE WHERE A PARTICULAR PRODUCT IS TRANSPORTED AND WHERE THE OWNERS OF THE TRUCKS HAD TO TAILOR MAKE THE TRUCKS TO SUIT THE TR ANSPORTATION OF A PARTICULAR PRODUCT I.E. BITUMEN IN THE CASE OF MYTHRI TRANSP ORT CORPORATION (SUPRA). KEEPING IN VIEW THE DECISION OF THE TRIBUNAL WE HO LD THAT EACH G.R. IS SEPARATE AND THEY CANNOT BE TAKEN AS CONTINUOUS CON TRACT. AS WE HAVE ALREADY HELD THAT THE DECLARATIONS GIVEN UNDER THE SECOND PROVISO TO CLAUSE (I) OF SUB-SECTION (3) OF SECTION 194C IN FORM NO. 15-I CANNOT BE REJECTED WITHOUT ANY ENQUIRY OR INVESTIGATION AND AS THERE I S NO IOTA OF EVIDENCE TO PROVE THAT THESE DECLARATIONS ARE WRONG WE AGREE W ITH THE FINDINGS OF THE COMMISSIONER (APPEALS) AND UPHOLD THE HIS ORDER. AS WE HAVE UPHELD THE COMMISSIONER (APPEALS)S ORDER ON THIS ISSUE WE DO NOT DEEM IT NECESSARY TO ADDRESS OTHER ARGUMENTS ON THIS GROUND THAT HAVE BEEN RAISED BY THE REVENUE AS IT WOULD BE AN ACADEMIC EXERCISE. 12. IN THE RESULT REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2011. SD/- VIJAY PAL RAO JUDICIAL MEMBER SD/- J. SUDHAKAR REDDY ACCOUNTANT MEMBER MUMBAI DATED: 30 TH SEPTEMBER 2011 COPY TO : (1) THE ASSESSEE; (2) THE RESPONDENT; (3) THE CIT(A) MUMBAI CONCERNED; (4) THE CIT MUMBAI CITY CONCERNED; (5) THE DR B BENCH ITAT MUMBAI. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY ASSISTANT REGISTRAR SR. PRIVATE SECRETARY ITAT MUMBAI BENCHES MUMBAI