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TMI Blog2015 (10) TMI 1757X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 20,000/-, even in some cases, whether the payments were more than one, the aggregate of payments during the year did not exceed ₹ 50,000/- - Held that:- s. The payments shown against such numbers cannot be allowed as a deduction, where the assessee has failed to furnish the information. Similarly, the verification exercise carried out by the Assessing Officer revealed that the PAN numbers given by the assessee did not match with the PAN numbers available in the computer system and in view of the said discrepancies, onus was upon the assessee to explain the same and to establish its case of having individually paid the amounts to different people of amounts not exceeding ₹ 50,000/- in a year. Where the assessee fails to discharge the onus cast upon him, then no benefit of provisions of the Act can be allowed to the assessee. In the entirety of the above said facts and circumstances, we deem it fit to restore this issue back to the file of Assessing Officer, who shall confront the assessee with the results of verification exercise carried out and as referred in the assessment order and after considering the reply of assessee, to decide the issue as per facts and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to her capital account in the balance sheet, but the assessee has failed to explain the source of the said gift. Looking at the income declared by the wife of assessee from year to year, we find no merit in the claim of the assessee and rejecting the same, we uphold the addition of ₹ 5,00,000/- on account of two aspects of the issue as discussed above. - Decided against assessee. - ITA No.1794/PN/2012, C.O. No.58/PN/2013 - - - Dated:- 11-9-2015 - MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Assessee : Shri C.V. Chitale For The Department : Shri Dheeraj Kumar Jain ORDER PER SUSHMA CHOWLA, JM : The captioned appeal filed by the Revenue is against the order of CIT(A)-V, Pune, dated 19.06.2012 relating to assessment year 2009-10 against order passed under section 143(3) of the Income Tax Act, 1961. The assessee has also filed Cross Objection against the appeal of the Revenue. 2. Both the appeal of the Revenue and Cross Objection filed by the assessee relating to the same assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. The Revenue in ITA No. 1794/PN/2012 has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing officer has erred in making disallowance under section 68 of the Act of an aggregate amount of ₹ 5,00,000/- and the CIT (A) - V, Pune has erred in not appreciating the assessee s case. g) The appellant craves leave to add, amend or alter any of the above cross objections. 5. The only issue raised in the appeal filed by the Revenue is against the deletion of disallowance made under section 40(a)(ia) of the Act by holding that the said provisions were applicable only to the amounts payable as on 31st March and not the amounts already paid during the year. 6. The learned Departmental Representative for the Revenue pointed out that the issue is settled by the order of Tribunal in Sangamner Taluka Sahakari Dudh Utpadak and Prakriya Sangh Maryadit Vs. TRO in ITA No.1752/PN/2013, relating to assessment year 2007-08, dated 20.02.2015, wherein it has been held that the provisions of section 40(a)(ia) of the Act are to be applied irrespective of the amount being paid during the year or being payable as on 31st March. 7. The learned Authorized Representative for the assessee pointed out that in the alternate to its claim of deduction on account of expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Further enquiries were made in respect of certain local parties by deputing the Inspector of the Ward and also enquiries were made with the local RTO office. The local enquiries revealed that the truck numbers given by the assessee in some cases belongs to some other parties and not to the names given by the assessee. Such parties could not confirm / quantify the transport charges received by them from the assessee. Further, the enquiries made from the RTO authorities revealed that some of the truck numbers were in fact car numbers and scooter numbers, which are enlisted under para 7 at page 3 of the assessment order. The Assessing Officer, in view thereof, observed that the list given by the assessee could not be accepted in toto as the details given were not correct in respect of some of the cases. Another enquiry in the case of Shri Rajkumar R Dhotre revealed that he was owner of four vehicles having registration numbers MH14 F 7580, MH14 CP 7580, MH14 BJ 7580 and MH12 FC 7488 and as per the details submitted by the assessee, these vehicles were reflecting against different names. Though the assessee has given different names against the vehicles, however, the enquiry reveale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss relation with him. Since the assessee had failed to deduct TDS as per provisions of section 194C of the Act on the transport / hire charges debited to the books of account, the expenditure claimed by the assessee was held to be not allowable as deduction, in view of the provisions of section 40(a)(ia) of the Act and sum of ₹ 1,68,99,010/- was disallowed and added to the total income of the assessee. 10. The CIT(A) allowed the claim of assessee relying on the Special Bench Decision of Visakhapatnam in M/s. Merlin Shipping and Transporters Vs. ACIT (2012) 20 taxmann.com 224 (Vishakhapatnam). Since the amount of ₹ 1.69 crores was paid to the respective parties during the financial year itself, the CIT(A) held that the case was squarely covered by the Special Bench decision and no disallowance was warranted under section 40(a)(ia) of the Act. 11. The Revenue is in appeal against the said finding of CIT(A). 12. We have heard the rival contentions and perused the record. The issue of paid or payable as envisaged under section 40(a)(ia) of the Act has been considered by Pune Bench of Tribunal in various decisions and it has been held that in view of the decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not filed before the Commissioner, however, in view of the ratio laid down by the Hon ble High Court of Gujarat in CIT Vs. Valibhai Khanbhai Mankad (2013) 92 DTR (Guj) 267, no disallowance under section 40(a)(ia) of the Act could be made. In this regard, the learned Authorized Representative for the assessee referred to the submissions made before the Assessing Officer, copy of which is placed at page 13 of Paper Book. The learned Authorized Representative for the assessee pointed out that the copies of Form No.15I were already available on the record of Assessing Officer. However, none of those copies were available with the assessee. In respect of objection raised in cross objections i.e. whether in view of the provisions of section 28 of the Act, no disallowance was warranted. The learned Authorized Representative for the assessee fairly admitted that the said ground of objection is to be dismissed. Another plea raised is with regard to furnishing of PAN numbers of respective truck owners. 16. We have heard the rival contentions and perused the record. The issue raised in the cross objections filed by the assessee is alternate to the main issue raised in the present appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had also issued notice under section 133(6) of the Act to the respective parties whose PAN numbers were given. The Assessing Officer had also fou nd from the verification exercise that the PAN numbers given by the assessee did not tally with the name of persons available on the computer system. The Assessing Officer also found from local enquiries that the truck numbers given by the assessee in some cases belonged to some other parties and not the names given by the assessee, such parties also did not confirm or quantified the transport charges received by them from the assessee. Further enquiries were made with the RTO, which revealed that some of the truck numbers given by the assessee were in fact the car numbers and scooter numbers. The example of such incidents are reproduced under para 7 of the assessment order. Another aspect noted by the Assessing Officer in respect of enquiries made from one Shri Rajkumar R Dhotre was, whose PAN number was given by the assessee, that he was owner of four vehicles and the total receipts in respect of the said four vehicles were ₹ 2,52,180/-. The investigation exercise carried out by the Assessing Officer was confronted to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RTO. Another objection raised by the assessee was with regard to Form No.15I filed in respect of certain transporters, copies of which were not filed before us, but were claimed to be filed before the Assessing Officer. 21. In the totality of the above said facts and circumstances, though we find merit in the plea of the assessee that there is no requirement for deduction of tax at source, where the individual payment to a person did not exceed ₹ 20,000/- and even if it exceeded ₹ 20,000/-, where the aggregate payment to a person did not exceed ₹ 50,000/- in a year, however, onus is upon the assessee to establish its case in totality. By merely filing the list of truck numbers and the payment made on day-to-day basis, the plea of the assessee cannot be accepted at face value, especially in a case where elaborate exercise of verification has been carried out by the Assessing Officer. The Assessing Officer has collected information and confronted the same to the assessee, which could not be explained by the assessee, except for stating that there may be errors, some mistakes in compiling the details or in writing the information, but it does not absolve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails given in the list were not correct in most of the cases; 9. Also as per the enquiries in the case of Shri Rajkumar R Dhotre (PAN AJXPD 5775B) it is revealed that, he is owner of four vehicles having Registration numbers MH14 F 7580, MH14 CP 7580, MH14 BJ 7580 and MH12 FC 7488 and as per the details submitted by the assessee, these vehicle numbers are reflecting against different names. Though the assessee has given different names against these vehicle numbers, however, since on enquiry it is revealed that the owner of all these four vehicles is one Shri Rajkumar R. Dhotre, and not different persons as stated by the assessee. It is also seen from the details given by the assessee that total amount of transportation charges paid in respect of these 4 vehicles owned by Shri Rajkumar Dhotre is ₹ 2,52,180/- and even then the assessee has not made any TDS at all. 23. The Assessing Officer show caused the assessee and contents of show cause notice are reproduced under para 10 on page 4 of the assessment order. The perusal of show cause notice reflects that the Assessing Officer did not show cause the assessee as to the exact outcome of the investigation carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee that information was asked on a very short notice is not correct. In any case, it is the assessee who has claimed that an expenditure of ₹ 1,68,99,010/- has been incurred towards transportation charges and that no TDS was liable to be deducted on the same and hence it is the responsibility of the assessee to furnish full and complete details so as to enable the Assessing Officer to complete the assessment after verifying the correctness of the claim. In the instant case, the assessee has filed only a list of more than 1200 so called truck drivers. The said list does not show full details such as the full name and addresses of the so called truck drivers, Hence it is not possible for the A.O to verify the same. The contention of the assessee in para 1.d that no truck driver has been paid ₹ 20000 or more in any day is also not borne out of facts. First of all, the list given by the assessee does not show full details as stated above, hence verification of the contents there is not possible. Moreover, as narrated in the show cause notice dated 12.12.2011 reproduced above, the list suffers from various apparent deficiencies such as same name repeated many time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individual case(after taking the repeated names in to consideration) and hence the assessee was liable to make TDS. 23. It is also pertinent to note here that the list given by the assessee contains various truck numbers which are mostly of outside States of Maharashtra and only with the single name and truck number etc. verification of the claim with the parties located outside Maharashtra is not possible and more over as stated above enquiries made with local RTOs and local area resulted in certain discrepancies and hence, it is the duty of the assessee to establish the correctness and genuineness of the claim which the assessee failed to do so. 24. It is also pertinent to mention here that as per the PAN numbers given by the assessee, the address of such PAN holders were found out from the system an information u/s. 133(6) of the I.T Act, 1961 was sought for. However, none of th e parties have replied till now except in the case of Shri Popat Jagannath Shende. However, the said Jagannath Shende vide his reply dated 21.12.2011 has stated as under: I, Mr. Popat Jagannath Shende, hereby request to the concerned authority that I am owner of 2 trucks and having i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drivers are not the owners of trucks in certain cases and though the trucks are driven by different truck drivers, but cumulatively they belonged to one owner i.e. in the case of Shri Rajkumar R Dhotre (PAN AJXPD 5775B) and he was owner of four vehicles and the total transportation charges paid in respect of the said four vehicles was ₹ 2,52,180/-. In such cases, the provisions of section 194C of the Act were squarely attracted and hence, we find no merit in the claim of the assessee. Secondly, in respect of some of truck numbers given by the assessee, the same related to certain cars and scooters. The payments shown against such numbers cannot be allowed as a deduction, where the assessee has failed to furnish the information. Similarly, the verification exercise carried out by the Assessing Officer revealed that the PAN numbers given by the assessee did not match with the PAN numbers available in the computer system and in view of the said discrepancies, onus was upon the assessee to explain the same and to establish its case of having individually paid the amounts to different people of amounts not exceeding ₹ 50,000/- in a year. Where the assessee fails to discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 5,00,000/-. Further, the Assessing Officer also dismissed the claim of the assessee since the correctness and genuineness of transaction could not be established by the assessee vis- -vis the amount received from his wife. 28. The CIT(A) upheld the said addition, against which the assessee has raised the cross objection Nos.(e) and (f). 29. The learned Authorized Representative for the assessee pointed out that the gift received by the assessee was from his wife who in turn, had declared the same in her hands. However, by an error, the assessee had recognized the said gift as liability in its hands. Our attention was drawn to the Paper Book filed, under which the learned Authorized Representative for the assessee referred to the return of income filed by the wife of assessee and also the balance sheet as on 31.03.2009, in which she had declared the gift to her husband. 30. The learned Departmental Representative for the Revenue placed reliance on the orders of authorities below and pointed out that the assessee has failed to establish the creditworthiness of gift of ₹ 5,00,000/- claimed to be given by the wife of assessee, to the assessee and further in any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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