Daya Shankar Shaw, Kolkata V. ACIT, Cir-53, Kolkata, Kolkata

CO 67/KOL/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8562 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-07-2012
• Court: TRIBUNAL
• Department Lawyers: A K MOHAPATRA
• Keywords: Condonation of delay
• Section: 143(3); 194C

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . . . . . . . , !' /AND #! $'# , ) [BEFORE SHRI K. K. GUPTA, AM & SHRI MAHAVIR SINGH, JM] '% '% '% '% / I.T.A NO. 991/KOL/2012 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR: 200 8- 0 9 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. DAYA SH ANKAR SHAW CIRCLE-53, KOLKATA. (PAN: ALSPS6298R) (+, /APPELLANT ) (-.+,/ RESPONDENT ) & C.O. NO.67/KOL/2012 IN '% '% '% '% / I.T.A NO. 991/KOL/2012 $&' !() $&' !() $&' !() $&' !()/ // / ASSESSMENT YEAR: 200 8- 0 9 DAYA SHANKAR SHAW VS. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-53, KOLKATA. (CROSS OBJECTOR) (RESPONDENT) DATE OF HEARING: 16.04.2013 DATE OF PRONOUNCEMENT: 19.04.2013 FOR THE REVENUE: SHRI A. K. MOHAPATRA, SR. D R FOR THE ASSESSEE/CROSS OBJECTOR : SHRI D. C. CHAKRABORTY, ADVOCATE / / ORDER PER MAHAVIR SINGH, JM: THIS APPEAL BY REVENUE AND CROSS OBJECTION BY ASSES SEE ARE ARISING OUT OF ORDER OF CIT(A) - XXXIII, KOLKATA IN APPEAL NO. 141/CIT(A)- XXXIII/CIR-53/10-11 DATED 12.03.2012. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-53, KOLKATA U /S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEAR 2008-09 VIDE HIS ORDER DATED 21.12.2010. 2. AT THE OUTSET, IT IS SEEN THAT THIS APPEAL BY RE VENUE IS BARRED BY LIMITATION BY 10 DAYS AND REVENUE HAS FILED CONDONATION PETITION ALONG AN AFFIDAVIT STATING THE REASONS. AT THE FIRST INSTANCE, LD. COUNSEL FOR THE ASSESSEE OBJECTED TO CONDONATION OF DELAY BUT WHEN IT WAS INFORMED THAT THERE IS DELAY OF 10 DAYS ONLY AND TH AT ALSO A PROCEDURAL DELAY, LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT DELAY CAN BE COND ONED. SINCE THE NATURE AND SHORT DELAY AND CAUSE SHOWN BY REVENUE, WE CONDONE THE DELAY AND AD MIT THE APPEAL FOR HEARING. 2 ITA NO.991/K/2012 & C.O. 67 OF 2012 DAYA SHANKAR SHAW AY. 2008-09 3. THE ONLY ISSUE IN THIS APPEAL OF REVENUE IS AGAI NST THE ORDER OF CIT(A) DELETING THE DISALLOWANCE MADE BY AO BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT FOR NON- DEDUCTION OF TDS U/S. 194C OF THE ACT ON TANKER HIR ING CHARGES. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND: 1. THE LD. CIT(A) ERRED IN HOLDING THAT PAYMENTS F OR INDIVIDUAL TRIP ARE LIABLE TO TDS IN CASE THEIR AMOUNT EXCEEDS RS.20,000/- IS CONTRAR Y TO THE PROVISIONS OF SECTION 194C WHICH PROVIDES THAT TAX IS TO BE DEDUCTED AT SOURCE WHERE THE AGGREGATE AMOUNT OF SUH SUM CREDITED OR PAID DURING THE FY EXCEEDS RS.50,00 0/-. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPORT. DURING THE YEAR UNDER CONSIDERATION, AS SESSEE GOT A CONTRACT FROM INDIAN OIL CORPORATION FOR TRANSPORT OF OIL FROM THEIR DEPOT A T BUDGE BUDGE TO DIFFERENT PETROL PUMPS IN KOLKATA AND OTHER PARTS OF WEST BENGAL. IN VIEW OF THE ABOVE CONTRACT OF INDIAN OIL CORPORATION, ASSESSEE HIRED TANKERS OF REQUIRED NUM BERS. THE ASSESSEE WAS HAVING FEW TANKERS IN HIS OWN NAME AND HIRED MAXIMUM TANKERS FROM OPEN MARKET. FOR HIRING, ASSESSEE PAID HIRE CHARGES I.E. TRANSPORTATION CHARGES AND DEBITED THE EXPENSES TO P&L ACCOUNT AT RS.1,15,30,259/-. ACCORDING TO ASSESSEE, HE PAID T ANKER HIRE CHARGES/TRANSPORTATION CHARGES TO DIFFERENT TANKER OWNERS/DRIVERS. ACCORDING TO HIM, AO DISALLOWED THE ENTIRE EXPENSES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, BUT CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCE. THE CIT(A) RESTRICTED THE DISALLOWAN CE BY OBSERVING AS UNDER: 4.11. IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT WHILE THE TRANSPORTATION CHARGES PAID TO VARIOUS TRUCK OWNERS COULD NOT BE CONSIDERE D TO BE IN PURSURANCE OF SUB- CONTRACT OR A SINGLE CONTRACT AS SUCH, THEY ARE STI LL IN NATURE OF CONTRACTUAL PAYMENTS WITH EACH TRIP CONSTITUTING A SEPARATE CONTRACT. T HEREFORE, THE PAYMENTS FOR INDIVIDUAL TRIPS ARE LIABLE TO TDS IN CASE THEIR AMOUNT EXCEED S RS.20,000/-. THE DETAILS OF TRANSPORTATION CHARGES SHOW SEVERAL SUCH PAYMENTS. ADMITTEDLY, NO TAX HAS BEEN DEDUCTED ON THE SAME. THE SAME ARE ACORDINGLY DISA LLOWABLE U/S. 40(A)(IA) OF I. T. ACT, 1961. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO RESTRICT THE DISALLOWANCE TO THE PAYMENTS, WHERE AMOUNT OF RS.20,000/- HAS BEEN PAID FOR SINGLE TRIP. 4. ACCORDING TO ASSESSEE, THERE IS NO CONTRACT NEIT HER WRITTEN NOR ORAL BETWEEN THE ASSESSEE AND THE TANKER OWNERS/DRIVERS AND ASSESSEE HAS HIRE D TANKERS AS AND WHEN NEEDED ON TEMPORARY BASIS. FOR EACH TRIP THERE WAS DIFFERENT TANKERS F ROM DIFFERENT SUPPLIERS. ACCORDING TO HIM, IT DEPENDS UPON THE AVAILABILITY OF TANKERS IN THE OPE N MARKET. IT WAS THE CONTENTION OF THE ASSESSEE THAT HE HAS NOT ASSIGNED ANY OF ITS CONTRA CTUAL OBLIGATION TO THE TRANSPORTERS. ACCORDING TO HIM, NO SUB-CONTRACT AGREEMENT EITHER WRITTEN OR ORAL EXISTED BETWEEN THE ASSESSEE AND TANKER OWNERS. ACCORDING TO HIM, AS THERE WAS NO CONTRACT BETWEEN THE ASSESSEE AND TANKER OWNERS, NO TDS CAN BE DEDUCTED U/S. 194C OF THE ACT AND NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT WILL BE MADE. WE FIND FROM THE ORDER OF THE AO THAT THIS PLEA WAS TAKEN BEFORE THE CIT(A) 3 ITA NO.991/K/2012 & C.O. 67 OF 2012 DAYA SHANKAR SHAW AY. 2008-09 FOR THE FIRST TIME AND IT WAS NOT AT ALL ARGUED BEF ORE THE AO. THE AO HAS CLEARLY MENTIONED IN THE ASSESSMENT ORDER DATED 21.12.2010 THAT THE PAYM ENTS ARE MADE TO THE PERSON WHOSE TANKER HIRED BY ASSESSEE. THE ENTIRE DETAIL ARE ELABORATED IN THE ASSESSMENT ORDER. SINCE THE PLEAS RAISED REGARDING EACH TRIP EACH TANKER ON TEMPORARY BASIS AND FOR EACH TANKER DURING THE YEAR PAYMENT DOES NOT EXCEED RS.20,000/- AND RS.50,000/- , AS THE CASE MAY BE, AS GOVERNED BY SECTION 194C(5) OF THE ACT WILL BE EXAMINED BY THE AO. AS THE FACTS AND CIRCUMSTANCES ARE NOT AVAILABLE ON RECORDS, WE ARE OF THE VIEW THAT LET T HE AO EXAMINE THE ISSUE IN ENTIRETY IN TERMS OF PROVISION OF SECTION 194C(5) OF THE ACT AND DECIDE THE ISSUE. C.O. OF ASSESSEE IS SUPPORTIVE AND HENCE, IS DISMISSED BEING INFRUCTUOUS. 5. IN THE RESULT, APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES AND CROSS OBJECTION IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 19.04.2013 SD/- SD/- . . . . . . . . , #! $'# #! $'# #! $'# #! $'# , (K. K. GUPTA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( 0 0 0 0) )) ) DATED : 19TH APRIL, 2013 !12 $&34 $5! JD.(SR.P.S.) 4 ITA NO.991/K/2012 & C.O. 67 OF 2012 DAYA SHANKAR SHAW AY. 2008-09 / 6 -$$7 87(9- COPY OF THE ORDER FORWARDED TO: 1 . +, / APPELLANT ACIT, CIRCLE-53, KOLKATA 2 -.+, / RESPONDENT SHRI DAYA SHANKAR SHAW, 11/2, MOTI L AL NEHRU ROAD, BUDGE BUDGE, 24 PGS. (SOUTH), PIN-700137 3 . $/& ( )/ THE CIT(A), KOLKATA 4. 5. $/& / CIT KOLKATA 7!>$ -$& / DR, KOLKATA BENCHES, KOLKATA .7 -$/ TRUE COPY, /&?/ BY ORDER, # '4 /ASSTT. REGISTRAR .