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Judgment
The Court: The assessee is in the business of construction of dams, tunnels etc. As against a gross contract realization of Rs. 86,37,03,906/-, a sum of Rs. 4,50,86,996/- was claimed to have been spent in transport charges. The Assessing Officer was of the view that the transport charges claimed by the assessee were much too high and he, therefore, computed the transport charges at the rate of 3.785% of the total realization which worked out to a sum of Rs. 3,26,91,193/-. In the process, a sum of Rs. 1,23,95,803/- was disallowed under the head ''transport charges'' and added back to the income of the assessee.
Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the Commissioner of Income Tax. The Commissioner of Income Tax allowed the appeal of the assessee holding, inter alia, as follows:
It is submitted by the appellant that the A.O. has made the disallowance only on the basis of disallowance made in A.Y. 2003-04. However, the action of the A.O. was dis-approved by the Hon''ble ITAT, Kolkata and the appeal for A.Y. 2003-04 was deleted by the ITAT ''A'' Bench, Kolkata in ITA No. 696 and 1339 (Kol) of 2009 dt. 18/12/2009, wherein the claim of the appellant on account of transport charges was allowed by the Tribunal in its entirety. I have gone through the order of the Hon''ble ITAT and it is observed that the appeal of the appellant on account of transport charges was allowed by the Hon''ble Tribunal in its favour. Since, in the year under consideration, the A.O. has made disallowance of transport charges only on the basis of disallowance made in the A.Y. 2003-04, the A.O. is directed to delete the addition as the appeal for A.Y. 2003-04 has been allowed by the Hon''ble ITAT in favour of the appellant. The ground no. 1(a) to 1(e) are allowed.
The revenue preferred an appeal before the learned Tribunal which was dismissed for the following reasons:
We have considered the submissions. As it is noticed that the issue in respect of ground No. 1 is squarely covered by the said decision of the coordination bench of this tribunal in assessee''s own case (refer to supra), respectfully following the same the finding of the learned Commissioner of Income tax (Appeals) on this issue stands confirmed. This issue of revenue''s appeal is dismissed.
Aggrieved by the order of the learned Tribunal, the revenue has come up in appeal. The questions framed are as follows:
"(i) Whether on the facts and circumstances of the case the learned Tribunal was justified in law in dismissing the appeal filed by the Department and confirming the order of the Commissioner of Income Tax (Appeal) in directing the Assessing Officer to delete the disallowance on account of transport charges without appreciating the fact that the assessee could not establish the claim for transport charges with convincing evidences ?
(ii) Whether in the facts and circumstances of the case the order of the learned Tribunal is perverse in law as well as in fact by directing the allowance without considering the facts on record ?"
Mr. Bhowmick, learned Advocate appearing in support of the appeal did not dispute the fact that the question as regards the amount of transport charges incurred by the assessee is a pure question of fact. He is unable to show as to why is the order passed by the learned Tribunal perverse. We are satisfied that the concurrent finding of fact cannot be interfered with just because the revenue chooses to prefer an appeal without disclosing any reason as to why or how is the order of the learned Tribunal is perverse.
For the aforesaid reasons, the appeal is dismissed.