Income Tax Appellate Tribunal, Agra Bench ने अपने इस फैसले में यह स्थापित किया कि टैक्सपेयर को अनुचित कार्रवाई का शिकार नहीं बनाया जा सकता। Nemi Chand Jain & Co. (Mr. Niklank Jain, Advocate) और Shri R.C. Jain से जुड़े Banshilal Maheshwari के मामले में ट्रिब्यूनल ने न केवल दोनों एडिशन डिलीट किए, बल्कि Assessing Officer को assessee को ₹5,000 का कॉस्ट अदा करने का भी निर्देश दिया। ऐसे फैसले दशकों में एक बार सामने आते हैं और कर सलाहकारों के लिए यह एक महत्वपूर्ण शैक्षणिक मिसाल है कि सही तथ्यों और कानूनी आधार पर विभाग की कार्रवाई को प्रभावी ढंग से चुनौती दी जा सकती है।
यह फैसला वर्ष 2009-2011 का है। Income Tax Appellate Tribunal, Agra Bench ने इसमें Assessing Officer की कार्यशैली पर गंभीर टिप्पणी करते हुए अधिकारी पर ₹5,000 का कॉस्ट (मुआवजा) लगाया था। ट्रिब्यूनल के निर्देश के अनुसार यह राशि अधिकारी को assessee को अदा करनी थी। ऐसे फैसले दुर्लभ होते हैं, जिनमें अधिकारी को ही टैक्सपेयर को भुगतान करने का निर्देश दिया जाए। गुना के टैक्स प्रैक्टिशनर से जुड़े इस केस ने कर प्रशासन में जवाबदेही की एक महत्वपूर्ण मिसाल कायम की है।
Income Tax Appellate Tribunal, Agra Bench द्वारा Section 254(2B) के तहत लगाया गया ₹5,000 का कॉस्ट इस बात का प्रमाण है कि ट्रिब्यूनल के पास अपील की सुनवाई को निष्पक्ष और जवाबदेह बनाने के लिए अतिरिक्त शक्तियाँ हैं। यह प्रावधान ट्रिब्यूनल को यह अधिकार देता है कि वह किसी पक्ष की अनुचित कार्यवाही पर दूसरे पक्ष को मुआवजा दिलवा सके। इस केस में ट्रिब्यूनल ने Assessing Officer की theoretical computation और high-handedness को देखते हुए इसी सेक्शन का प्रयोग किया। Section 254(2B) के तहत दी गई यह राहत सामान्य एडिशन डिलीट करने से आगे जाती है और यह दर्शाती है कि ट्रिब्यूनल टैक्सपेयर के अधिकारों की रक्षा को गंभीरता से लेता है।
इस फैसले की मूल प्रति Income Tax Appellate Tribunal, Agra Bench के ITA No. 305/Agr/2009 (Assessment Year 2006-07) में उपलब्ध है। ऑर्डर की पूरी कॉपी indiankanoon.org वेबसाइट पर देखी जा सकती है। अधिक जानकारी और मूल आदेश पढ़ने के लिए नीचे दिए गए लिंक पर क्लिक करें।
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केस डिटेल्स
- केस का नाम: Income Tax Officer, Guna बनाम Shri Banshilal Maheshwari, Raghogarh, Distt. Guna (M.P.)
- ITA नंबर: 305/Agr/2009
- Assessment Year: 2006-07
- ट्रिब्यूनल: Income Tax Appellate Tribunal, Agra Bench
- फैसले की तारीख: 25 फरवरी 2011
- अपीलकर्ता: आयकर विभाग (Revenue)
- प्रतिवादी: Shri Banshilal Maheshwari
- प्रतिनिधित्व: Shri R.C. Jain एवं Shri Ajay Daga, C.A.
मामले के तथ्य
Assessing Officer ने assessee की पुस्तकों को खारिज किए बिना सैद्धांतिक गणना के आधार पर दो एडिशन की थीं। पहली एडिशन ₹77,26,488 की थी, जो Section 40(a)(ia) के तहत डिस्अलाउंस के रूप में लगाई गई थी। दूसरी एडिशन ₹2,10,487 की थी। CIT(A) ने दोनों एडिशन डिलीट कर दी थीं। विभाग ने CIT(A) के आदेश के खिलाफ ITAT Agra में अपील दायर की।
मुख्य मुद्दे
- क्या Assessing Officer द्वारा Section 40(a)(ia) के तहत ₹77,26,488 की एडिशन उचित थी?
- क्या ₹2,10,487 की एडिशन बिना उचित आधार के लगाई गई थी?
- क्या Assessing Officer की कार्यशैली high-handed थी?
ट्रिब्यूनल का निर्णय
Income Tax Appellate Tribunal, Agra Bench ने विभाग की अपील खारिज कर दी। ट्रिब्यूनल ने माना कि Assessing Officer ने पुस्तकों को खारिज किए बिना सैद्धांतिक गणना के आधार पर एडिशन की, जो jurisdiction से बाहर थी। ट्रिब्यूनल ने दोनों एडिशन को डिलीट करने वाले CIT(A) के आदेश को बरकरार रखा।
ट्रिब्यूनल ने Assessing Officer की कार्यशैली को high-handed माना और Section 254(2B) के तहत अधिकारी पर ₹5,000 का कॉस्ट (मुआवजा) लगाया। ट्रिब्यूनल ने निर्देश दिया कि यह राशि अधिकारी assessee को अदा करे और assessee को इसका टैक्स क्रेडिट मिले।
महत्वपूर्ण बिंदु
- ट्रिब्यूनल ने “penalty” या “जुर्माना” शब्द का प्रयोग नहीं किया, बल्कि कॉस्ट शब्द का प्रयोग किया।
- कॉस्ट की राशि assessee को दी जानी थी, न कि सरकारी खजाने में जमा होनी थी।
- यह फैसला Assessing Officer की जवाबदेही को रेखांकित करता है।
नोट: ऑर्डर की मूल प्रति indiankanoon.org पर उपलब्ध है।
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Banshilal Maheshwari, Guna vs Department Of Income Tax on 29 April, 2009
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA No.305/Agr/2009 Asst. Year: 2006-07 Income Tax Officer, Vs. Shri Banshilal Maheshwari, Guna (M.P.) Raghogarh, Distt. Guna (M.P). (PAN : ACMPM 9232 E). (Appellant) (Respondent) Appellant by : Shri M.K. Srivastava, Sr. D.R. Respondent by : Shri R.C. Jain & Shri Ajay Daga, C.A. ORDER PER P.K. BANSAL, A.M.: This appeal has been filed by the Revenue against the order of the CIT(A) dated 29.04.2009 by taking the following effective grounds of appeal :- "On the facts and circumstances of the case the ld. Commissioner of Income Tax (A) has erred n law in 1. Deleting the addition of ` 77,26,488/- on account of disallowance made by the A.O. u/s. 40(a)(ia) of the Income Tax Act. 2. Deleting the addition of ` 2,10,487/- made by the A.O. u/s. 69 of the Income Tax Act." 2. The brief facts in respect to ground no.1 are that the assessee being individual derived income from plying of own three tankers and one truck and maintained regular books of accounts. Income from the assessee under tanker and truck plying business was shown as per the provisions of section 44AE of the Income-tax Act, 1961 ('the Act' hereinafter) but the audit under section 44AB was not carried out for this business. The assessee also derived income from commission received on plying the vehicles of other owners for which regular books were maintained which were duly audited under section 44AB of the Act as turnover exceeds ` 40 lacs. Although in the preceding year the turnover from this business were less than ` 40 lacs and the income earned was also not more than ` 1 lac, the assessee declared the income at ` 4,83,771/-. The Assessing Officer disallowed a sum of ` 77,26,488/- under section 40(a)(ia) holding that the assessee was liable for deduction of the TDS as per the provisions of section 194C. The assessee went in appeal before the CIT(A). Before the CIT(A), the assessee contended that the assessee is an individual and the provisions of section 194C were not applicable in his case as his turnover did not exceed ` 40 lacs so far the income earned on plying the vehicles of the other parties are concerned in the earlier Assessment Year and, therefore, the assessee was not under an obligation to get his account audited under section 44AB. The other contention taken by the assessee was that the Assessing Officer has presumed that the assessee has sub-contracted the work. However, there is nothing on record to suggest that there is any agreement either oral or written executed between the assessee or any other parties to whom the freight payments were made by the assessee. The CIT(A) after considering the submissions of the assessee, deleted the disallowance made under section 40(a)(ia). 3. Before us, the ld. A.R. vehemently contended that the assessee has, in the year ended 31.03.2005, the total freight receipt of ` 31,24,476/- on the vehicles taken on hire. The assessee has received from own plying business amounting to ` 42,13,788/- on which he has shown profit under section 44AE at ` 2,13,702/- during the year. For this, our attention was drawn to page nos.3 & 4 of the Paper Book. Thus, he contended that since the actual freight receipts on hiring of the vehicles of other parties were less than ` 40 lacs in the year earlier to the A.Y., therefore, the provisions of section 44AB were not applicable in the case of the assessee. Referring to section 194C of the Act, it was contended that the assessee was not under obligation to deduct TDS as he is an individual and during the Financial Year immediately preceding the impugned Financial Year, the amount paid to the other vehicle owners were less than ` 40 lacs. The Assessing Officer has ignored the provisions of section 44AB and theoretically computed the figure of the freight exceeding ` 40 lacs. The Assessing Officer is not empowered under any provisions of section 44AB to recompute the figure of the gross receipts in a theoretical manner. The CIT(A) rightly deleted the addition. The appeal is filed without applying the mind. Even on merit, it was contended that the case of the assessee is duly covered by the decisions of Hon'ble Punjab & Haryana High Court in the case of CIT vs. United Rice Land Limited, 217 CTR (P&H) 332 as well as in the case of CIT vs. Bhagwati Steels, 47 DTR (P&H) 75. 4. Ld. D.R. relied on the order of the Assessing Officer. 5. We have carefully considered the rival submissions along with the orders of the Tax Authorities below. It is uncontroverted fact that the assessee is an individual. The explanation to section 194C defines the specified person for the purpose of section 194C(1). The said explanation lays down as under :- "(l) any person, being an individual or a Hindu undivided family or an association of persons or a body of individuals, if such person,- (A) does not fall under any of the preceding sub-clauses; and (B) is liable to audit of accounts under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such sum is credited or paid to the account of the contractor." 6. On the plain reading of the aforesaid clause of the explanation, it is apparent that an individual who is liable to get the accounts audited under section 44AB during the Financial Year immediately preceding the Financial Year in which the sum is credited or paid to the contractor is the specified person liable to deduct the TDS. In the case of the assessee, immediately preceding Financial Year is F.Y. 2004-05, during the year ended 31.03.2005, the freight received by the assessee on plying of truck taken on hire was only ` 31,24,476/-. The Assessing Officer has totally ignored this figure but with a view to bring the assessee within the category of specified person theoretically computed the figure of receipts of vehicles taken on hire for the year ended 31.03.2005 to be ` 42,42,581/- ignoring the provisions of explanation to section 194C so that additions can be made in the case of the assessee. This section clearly lays down that the figure has to be the sum credited or paid to the account of the contactor. The actual figure credited for the hire of the truck is ` 31,24,476/-. This section nowhere empowers the Assessing Officer to rewrite the provisions in the manner as may be suitable to the Assessing Officer. The Assessing Officer does not have any power to rewrite any provisions of the Income Tax Act. He is an authority created under the Income Tax Act and has to discharge his obligations by exercising his powers as are entrusted under the various provisions of Income Tax Act. Even this Tribunal is also an Appellate Authority created under the Income Tax Act and has to discharge its functions within the provisions of the Income Tax Act. We hold that in this case the Assessing Officer has exceeded his jurisdiction by recomputing the figure of the amount credited to the contractor in respect of vehicles taken on hire for the year ended 2005 in a theoretical manner without bringing any material or evidence that the assessee has actually credited or paid amount in the accounts of the contractor more than what is actually credited or paid in the books of the assessee so that he may achieve the objects of disallowing the expenditure which is otherwise allowable under the Income Tax Act and created fictitious demand on the assessee which is not sustainable under the law. The action of the Assessing Officer in this case, in our opinion, is totally illegal and being a quasi judicial authority, he should act in such a manner so that the assessee may not be harassed unnecessarily. This shows highhandedness of the Assessing Officer towards the assessee. The Assessing Officer should understand that we are living in a democratic set up and the taxpayers deserve to be respected for their contribution in the national development. In this regard, we rely on the observation of the Tribunal in the case of RPG Enterprises Limited vs. DCIT, 251 ITR (AT) 20 (30) (Mumbai) in which the Tribunal has observed as under :- "We are living in a democratic set up and the tax payers deserve to be respected for their contribution in the national development. Public servants are expected to discharge their functions dutifully but not un-reasonably. The Officers are supposed to work diligently but not harassingly. It is absolutely necessary for the Department of Revenue to gain public trust and confidence by acting judiciously and avoiding undue harassment. We appreciate the scheme of rewarding honest and diligent Officers of the Department but also feel that there is a necessity of identifying overzealous Officers harassing the taxpayers by misusing their powers." 7. These observations of this Tribunal are clearly applicable to the present case. If the Assessing Officer or the Department will continue to make such type of illegal additions/ disallowances, the public faith will get shaken and the reputation of the Department will be destroyed in the eyes of public at large. The CIT(A) in this case even though rightly deleted the additions, the concerned CIT before filing the appeal with the Tribunal, it appears also did not apply his mind and the appeal was filed in a routine manner. We cannot expect CIT(Admn.) to file appeal in such a manner because it ultimately affects the public exchequer if such scrupulous appeals are filed without applying mind. A lot of precious man-hours are wasted because all these expenses are ultimately meted out, out of the public exchequer. Even, in our opinion, the Department should understand that whatever expenditure is incurred by the assessee in defending such illegal appeal filed by the Department, the expenses incurred by the assessee on such litigation by way of fees to the Counsel, his travelling expenses etc. will be allowed as deduction to the assessee under section 37 of the Act while computing his taxable income of the concerned Assessment Year. Whatever may be tax slab of the assessee to that extent these expenses stand incurred out of the pocket of the public exchequer. In our opinion, this is a fit case where cost should be awarded to the assessee. We, therefore, not only confirm the action of the CIT(A) deleting the addition of ` 77,26,488/- only on this basis but also award a cost to the assessee amounting to ` 5,000/- under section 254(2b) of the Act and accordingly direct the Assessing Officer to pay a sum of ` 5,000/- to the assessee and deposit it with the Department and the assessee should be allowed credit for the same amount as tax paid in the Assessment Year 2011- 12. 8. Even though we have already confirmed the order of the CIT(A) only on this basis but since the ld. A.R. has argued his case extensively, we, therefore, deal with the other contention of the assessee which is that there is no sub-contract between the assessee and the persons from whom the assessee has taken the vehicles on hire. We noted that on this contention the case of the assessee is duly covered by the decision of this Tribunal in the case of Mythri Transport Corporation vs. ACIT, 124 TTJ (Visakha) 970 in which the facts involved are the same. In the said case, the Tribunal has decided the issue in favour of the assessee by holding as under :- "8. We have heard the rival contentions and perused the record. The issue before us may be decided if we answer following question: "Whether the vehicles hired by the assessee in execution of the transport contract can be termed as a 'sub-contract' and consequently the assessee is liable to deduct tax from the payment made for such vehicles under s.194C(2) of the Act ?" In the instant case, the Assessing Officer has invoked the provisions of s.40(a)(ia) to disallow the payments made for hired lorries as according to him, such payments represent payment to 'sub-contractors' liable for TDS under s.194C(2) of the Act and the assessee has failed to deduct TDS under s.194C(2). Section 194C(2) of the Act, which is relevant in this context, reads as under : "Any person (being a contractor and not being an individual or an HUF) responsible for paying any sum to any resident (hereafter in the section referred to as the sub-contractor) in pursuance of a contract with the sub-contractor for carrying out, or for the supply of labour for carrying out, the whole or any part of the work undertaken by the contractor or for supplying whether wholly or partly any labour which the contractor has undertaken to supply shall, at the time of credit of such sum to the account of the sub-contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to one per cent of such sum as income-tax on income comprised therein." 8.1 According to our understanding, s. 194C{2) is attracted if all the following conditions are satisfied: (a) The assessee should be a contractor. (b) The assessee, in his capacity as a contractor, should enter into a contract with a sub-contractor for carrying out the whole or any part of the work undertaken by the contractor. (c) The sub-contractor should carry out the whole or any part of the work undertaken by the contractor. (d) Payment should be made for carrying out the whole or any part of the work. 8.2. As stated earlier, the assessee herein is a transport contractor and has entered into an agreement with parties whereby the assessee undertook to transport bitumen to various points as per their directions. According to the assessee, the lorries used for the said purpose are specially designed with proper heating arrangements. The claim of the assessee is that since it did not have required number of lorries, it had to hire lorries from others who simply placed the vehicles at the disposal of the assessee. The assessee alone, under its control and supervision, has executed whole of the contract. According to the assessee, the individual lorry owners have not carried out any part of the work undertaken by the assessee. 8.3 (I) The following are the basis of the AO to come to the conclusion that the payment made for hired lorries is a sub-contract payment, liable for TDS under s. 194C(2} of the Act: (a) The assessee has entered into a contract with the parties and all payments are made to the assessee only. (b) The assessee is claiming the total TDS credit for the gross receipt where TDS was deducted. (c) The lorry owners are in no way connected with the party who gives work to the assessee. As the assessee could not manage the work with its own lorries, it took on hire lorries belonging to others on sub-contract to carry out its contract work, for which payment is made by the assessee. There is no contact or relationship of any kind between the client (principal company) and the sub-contractor. (II) Learned CIT(A) has confirmed the order of the AO with following reasonings : (a) The tanker lorries taken on hire were utilized for the purposes of the business of the execution of the contract during the entire contract period. . (b) The tanker lorry owners were paid only after receipt of the bills from the contractees, after retaining the commission. (c) The tanker lorry owners enabled the appellant to execute the contract work. 8.4 The assessee has placed a copy of work order dt. 12th Feb., 2005 issued by a company named "RBM-Pati Joint Venture". We have gone through the said work order and notice the following points: (a) The scope of work includes loading of Bitumen 60/70 at Vizag, transportation and delivering at RBMP camp site at 56 kms. and 35 kms. on NH-6. As such three types of work are included in the scope of work. (b) Tanker lorry shall have proper heating arrangement. The company reserves the right to arrange any other means of transportation in case of non-placement/delay in placement of lorry. Any extra payment made for execution of such work will be recovered from the assessee. (c) The assessee shall not engage and/or allow its personnel in any fraudulent activity in performing the work order. The company is at liberty to deduct any reasonable amount, if any fraud or cheating is discovered. (d) The assessee, in any circumstance, should not divulge or make public, in any way, any of the business transactions to other parties. (e) In the event of any unreasonable delay or if the consignment is not delivered, the company shall be entitled to deduct any sum and/or the value of consignment from the outstanding bills of the assessee. No claim whatsoever due to idling of labour, equipment, vehicles and any others shall be entertained by the company under any circumstance. . (f) The assessee shall comply with all existing acts, rules, regulations etc. relating to labour, traffic and transport. In case of any liability arising to the company as principal employer due to failure, negligence or/and accident by transporter, the same shall be recoverable from the assessee. The above stringent clauses suggest that the assessee is solely responsible for all the acts and defaults committed by the assessee and/or its employees . 8.5 It is not established by the Revenue that other lorry owners, from whom the vehicles were hired, have also been fastened with any of the abovesaid liabilities. In a sub-contract, a prudent contractor would include all the liability clauses in the agreement entered into by him with the sub-contractor. The assessee has also claimed before the tax authorities that the responsibility in the whole process lies with it only. Though the passing or liability is not the only criteria to decide about the existence of sub-contract, yet this contention of the assessee read with the liability clauses of the work order, cited above, supports its submission that the individual vehicle owners are simple hirers of the vehicles. 8.6 As per the provisions of s. 194C(2), as explained in para 8.1 supra, the sub-contractor should carry out the whole or any part of the work undertaken by the assessee. The dictionary meaning of the words "carry out" is to 'carry into practice'; 'to execute'; 'to accomplish'. It signifies a positive involvement in the execution of the whole or any part of the main work by spending his time, money, energy, etc. and further taking the risks in carrying on the said activity. In the instant case, there is no material to suggest that the other lorry owners involved themselves in carrying out any part of the work undertaken by the assessee by spending their time, energy and by taking the risks associated with the main contract work. In the absence of the abovesaid characteristics attached to a sub- contract in the instant case, the payment made to the lorry owners stands at par with the payments made towards salaries, rent. etc. Hence the reasoning of the tax authorities, which is stated in para 8.3 supra, to hold that the payment made for hired vehicles is a sub-contract payment, in our opinion, is not correct end not based on relevant considerations. Hence, in our considered opinion, it cannot be said that the payments made for hired vehic1es would fall in the category of payment towards a sub-contract with the lorry owners. In that case the assessee is not liable to deduct tax at source, as per the provisions of s. 194C(2), on the payments made to the lorry owners for lorry hire. Consequently, the provisions of s. 40(a)(ia) shall not apply to such payments. 8.7 As we have decided the issue in favour of the assessee for the reasons stated above, in our opinion, consideration of other contentions of the assessee as well as the Revenue is not necessary. 9. In the result, the appeal of the assessee is allowed." 9. Similar view has been taken by this Tribunal in the case of Govind Singh, Mathura vs. ITO, Mathura in TDSA No.13/Agr/2007 for the Assessment Year 2005-06 in which also this Tribunal, after discussing the provisions of section 194C, has held as under :- "The contention of ld. A.R. is found to be correct. The assessee is the contractor qua IOCL. The assessee has taken some vehicles on hire, simpliciter, for running of which the drivers, the fuel and their maintenance was being done by the assessee himself. The IOCL has deducted TDS of the entire payment. There is no further contract between the assessee and these five payees. It is immaterial if the vehicles are hired for the entire year or for a day. There is a sort of dry understanding between the assessee and the other five payees. So, the above section is not attracted to this case. Hence, we are of the considered opinion that when section 194C is not applicable, the consequential section, i.e., 201(1) and 201(lA) are also not applicable. We allow this ground of appeal after setting aside the finding of ld. CIT(A) and delete/cancel the levy under these sections." 10. The decision of the Co-ordinate Bench is binding on us. 11. We have also gone through the decision as relied on by the ld. A.R. in the case of Hon'ble Punjab & Haryana High Court in the case of CIT vs. United Rice Land Limited, 217 CTR (P&H) 332 wherein it has been held as under :- "We have heard Mr. Sanjeev Kaushik, learned counsel for the Revenue and have perused the record. As per provisions of s. 194C of the IT Act, any person responsible for paying any sum to any resident for carrying out any work in pursuance of a contract shall at the time of credit of such sum or at the time of payment thereof in cash or by cheque deduct a tax thereon at a prescribed rate. However, no such deduction at source is required to be made, if the sum paid or credited does not exceed ` 20,000. In the present case, the AO had held the assessee liable for deduction of tax only on the assumption that assessee was having agreement with the parties through whom trucks were arranged for transportation of goods. However, the CIT(A) has recorded a finding of fact that there was neither any oral or written agreement between the assessee and transporters for carriage of goods nor it has been proved that any sum of money regarding freight charges was paid to them in pursuance of a contract for specific period, quantity or price. This finding of fact was recorded by the CIT(A) after considering the certificate furnished by the transporters. The Tribunal has also recorded a finding of fact that the Department has not controverted the said finding of the CIT(A) even before the Tribunal. While recording this finding of fact, the Tribunal has clearly stated that nothing has been brought on record by the AO to prove that there was no (sic) written or oral agreement between the alleged parties for carriage of the goods. In view of the above, we are not inclined to interfere in the finding of fact recorded by the Tribunal. The appeal being without merit is dismissed." 12. Similar view has been taken by the Punjab & Haryana High Court in the case of CIT vs. Bhagwati Steels, 47 DTR (P&H) 75. On this basis also, we do not find any illegality or infirmity in the order of the CIT(A) in deleting the disallowance of ` 77,26,488/-. 13. Ground no.2 relates to the deletion of the addition of ` 2,10,487/- made by the Assessing Officer under section 69 of the Act. 14. We have heard the rival submissions and carefully considered the same. We noted that the Assessing Officer has made the addition under section 69 of the Act without appreciating the facts of the case correctly. The assessee has duly debited the interest in his Profit &Loss account paid on the loan. Even the interest has duly been debited in the interest on loan account and credited in the account of the respective parties which is apparent from page nos. 16, 17, 19 & 20 of the Paper Book. The Assessing Officer, on one hand, has not rejected the books of accounts of the assessee but, on the other hand, he observed that the audit report furnished along with return was prepared in a very casual manner and thus not exhibited correct and full picture of the account maintained by the assessee. There is no finding given by the Assessing Officer that there is difference in the confirmation of the creditors as filed by the assessee with the balance of the creditors shown in the books of the assessee. It appears this addition has also been made by the Assessing Officer without applying his mind and properly understanding the facts and papers on record. The observation as has been made by us in respect of ground no.1 are also clearly applicable to this ground also. Therefore, in view of these facts, we are of the opinion that the CIT(A) has rightly deleted the addition and order of the CIT(A) does not warrant our interference so far it relates to the deletion of ` 2,10,487/-. We, accordingly, confirm the order of the CIT(A). 15. In the result, appeal filed by the Revenue stands dismissed and a cost of ` 5,000/- is imposed on the Assessing Officer in the manner as specified while disposing of ground no.1. (Order pronounced in the open Court on 25.02.2011). Sd/- Sd/- (H.S. SIDHU) (P.K. BANSAL) Judicial Member Accountant Member Place: Agra Date: 25th February, 2011 PBN/* Copy of the order forwarded to: 1. Appellant 2. Respondent By Order 3. CIT concerned 4. CIT (Appeals) concerned 5. DR, ITAT, Agra Bench, Agra 6. Guard File Assistant Registrar Income-tax Appellate Tribunal, Agra True Copy
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