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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: S/SHRI B.R.BASKARAN & SHRI SANDEEP GOSAIN
2 -3003-3004/Mum/2011 O R D E R PER Bench: These cross-appeals are directed against the order dated 27.1.2011 passed by ld. CIT(A)-33, Mumbai and they relate to the assessment years 2005-06 to 2007-08.
None appeared on behalf of the assessee even though the cases were adjourned on an earlier occasion at the request of the assessee’s counsel. Thereafter, notice issued was returned back with the postal remark “Insufficient Address”. Hence, revenue was directed to serve notice to the assessee. However, they also informed that the assessee was not available at the address given in Form No.36. It was also noticed that the address given by the assessee in his appeals and the address given by the revenue in their appeals are different. Under these circumstances, we infer that the assessee has changed his address and he has failed to intimate the same to the office of the Tribunal and revenue. Hence, we proceed to dispose of the appeals ex-parte, without the presence of the assessee.
We heard the ld.DR and perused the record. The assessee is a proprietor of M/s Daljit Road lines engaged in the business as transport contractors. The assessment for all the years under consideration were completed by disallowing certain portions of expenses and also by making disallowance u/s 40(a)(ia) of the Act for deduction of tax at source in respect of freight charges paid.
In the appellate proceedings, the ld. CIT(A) confirmed the disallowance of expenses and granted relief in respect of disallowance made u/s 40(a)(ia) of the Act on the reasoning that TDS provisions shall
3 -3003-3004/Mum/2011 not apply in respect of portion of payment. In doing so, the ld. CIT(A) admitted certain additional evidences and the same was not confronted to the AO.
The assessee has filed these appeals in respect of additions confirmed by the ld. CIT(A) and the revenue has filed these appeals in respect of relief granted by the ld.CIT(A). The revenue has also raised a ground with regard to the violation of Rule 46A of the Income Tax Rules, 1962.
In respect of the expenses disallowed by the AO, we notice that the AO was constrained to disallow a portion of expenses, since they were supported by self made vouchers. Hence, the ld.CIT(A) did not find it necessary to disturb the disallowance made by the AO. Since the expenses supported by self made vouchers are not susceptible for verification, we are of the view that the ld.CIT(A) was justified in confirming the disallowances made by the AO in all the three years under consideration.
The next issue relates to the disallowance u/s 40(a)(ia) of the Act. The ld. CIT(A) has granted relief by admitting certain additional evidences and the same were not confronted with the AO, resulting in violation of provisions of Rule 46A of the Rules. The assessee has also contended that the ld.CIT(A) has not properly applied the provisions of section 194C of the Act as applicable to the Lorry owners. Under these set of facts, we are of the view that this issue requires fresh examination at the end of the AO. Accordingly, we set aside the order of ld.CIT(A) on this issue and restore the same to the file of the AO with a direction to examine the same afresh by providing reasonable opportunity of being heard to the assessee.
In the result, all the appeals of the assessee are treated as partly and all the appeals of the revenue are treated as allowed.