Sri Gona Durga Sai, Jamshepur V. ITO, Jamshepur

ITA 10/RAN/2013

• Counselvise Citation: 1025114 RSA 2013
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 25-02-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Question of law
• Section: 234B; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI CIRCUI T BENCH, RANCHI (BEFORE SHRI P.K.BANSAL, HONBLE A.M.& SHRI D,T. GA RASIA, HONBLE J.M .) I.T.A. NO. 10/RAN/2013 : ASSESSMENT YEAR 2009-10 SRI GONA DURGA SAI, PROP. M/S. SAI ENTERPRISES, JSR -VS- I.T.O., WARD-1(4), JSR (APPELLANT) PAN :AVQPS 7583P (RESPONDENT) APPELLANT BY : SHRI S.K. PODDAR WITH SHRI M.K.CHO UDHURY, ADVOCATE RESPONDENT BY: SHRI VIJAY, D.R. DATE OF CONCLUDING THE HEARING : 29.04.2013 DATE OF PRONOUNCING THE ORDER : 03.05.2013 ORDER PER BENCH : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), JAMSHEDPUR DATED 29.11.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. GROUND NOS. 1 TO 4 AND 6 RELATE TO THE ISSUE O F DISALLOWANCE OF TRANSPORT CHARGES PAID TO THE TRUCK OWNERS AMOUNTING TO RS.23,18,121/ - UNDER SECTION 40(A)(IA). 3. WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CO NSIDERED THE SAME. SIMILAR ISSUE HAS ARISEN IN ITA NO.01/RAN/2013 IN WHICH WE CONFIR MED THE DELETION OF THE DISALLOWANCE MADE BY THE CIT(A) WHEREIN WE HAVE HEL D AS UNDER, VIDE OUR ORDER DATED 01.05.2013. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME. THE LD. D.R. RELIED ON THE ORD ER OF THE ASSESSING OFFICER BUT COULD NOT ADDUCE OR PRODUCE A NY COGENT MATERIAL OR EVIDENCE BEFORE US WHICH MAY PROVE THAT THERE WAS ANY CONTRACT WRITTEN OR ORAL BETWEEN THE ASSESSEE A ND THE TRUCK OWNERS FOR THE HIRING OF THE TRUCKS SO THAT IT MAY BE SAID THAT THE ASSESSEE IS LIABLE TO DEDUCT TAX AT SOURCE AS THE S INGLE PAYMENT EXCEEDS RS.20,000/-. THE CIT(A) HAS GIVEN THE FINDI NG OF FACT AND APPLIED THE DECISION IN THE CASE OF CIT-VS- BHAGWAT I STEELS 326 ITR 108 WHEREIN THE HONBLE HIGH COURT OF PUNJAB & HARYANA HELD THAT IN THE ABSENCE OF WRITTEN OR ORAL CONTRACT FOR A SPECIFIC PERIOD, QUANTITY, PRICE OR THAT A SINGLE PAYMENT EXCEEDED RS.20,000/-, THE ASS ESSEE WAS NOT TO BE REGARDED AS A DEFAULTER UNDER SECTION 194C OF THE I NCOME-TAX ACT AND IN CONSEQUENCE THE DISALLOWANCE UNDER SECTION 40(A)(IA ) CANNOT BE MADE. THE REVENUE HAS GONE AGAINST THE DECISION BEFORE THE AP EX COURT AND THEREFORE, THE HONBLE SUPREME COURT DISMISSED THE SLP OF THE DEPARTMENT AS REPORTED IN 336 ITR 14 (STATUTE). EVEN THOUGH THE L D. A.R. BEFORE US CITED THE VARIOUS DECISIONS OF DIFFERENT HIGH COURTS WHIC H ARE GIVEN AS UNDER: I. CIT-VS- BHAGWATI STEELS 326 ITR 108 II. CIT-VS- HARDARSHAN SINGH [2013] 30 TAXMANN. COM 245 (DELHI) III. CIT-VS- TRUCK OPERATORS UNION 339 ITR 532 (P&H) IV. CIT-VS- GREWAL BROTHERS (2011) 240 CTR 325 ( P&H) 4.1. IN ADDITION TO THIS, THE LD. A.R. RELIED ON TH E DECISION OF THE TRIBUNAL ALSO WHICH HAS TAKEN THE SAME VIEW. NO CONTRARY DEC ISION WAS BROUGHT TO OUR KNOWLEDGE. IN VIEW OF THIS FACT, WE ARE OF THE OPINION, THIS IS NOT A FIT CASE WHICH MAY REQUIRE OUR INTERFERENCE. HENCE, WE DISMISS THE REVENUES APPEAL. 4. RESPECTFULLY FOLLOWING THE SAID DECISION, WE DE LETE THE DISALLOWANCE MADE BY THE ASSESSING OFFICER BY SETTING ASIDE THE ORDER OF THE CIT(A). 5. THE 5 TH GROUND RELATES TO THE DISALLOWANCE OF RS.1.35.336/ - BEING 1% OF THE FREIGHT EXPENSES ON ESTIMATE BASIS. THE ASSESSING OFFICER D ISALLOWED 1% OF THE FREIGHT EXPENSES AS THESE EXPENSES HAVE BEEN CLAIMED BY THE ASSESSEE BASED ON THE SELF-MADE VOUCHERS. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) CONFIRMED THE DISALLOWANCE IGNORING THE DETAILS BEING FILED BY THE ASSESSEE. 6. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED THE MATERIALS ON RECORD. IN OUR OPINION, WHEN THE ASSESSEE HAS INCUR RED AN EXPENDITURE AND CLAIMED IT AS A DEDUCTION, THE GENUINITY OF THE EXPENSES INCURRED H AS TO BE PROVED BY THE ASSESSEE. THIS IS AN ESTABLISHED FACT THAT EXCEPT SELF-MADE VOUCHE RS, NO OTHER EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE. WE NOTED SINCE THE ASSESS EE IS ENGAGED IN THE TRANSPORTATION BUSINESS, INCURRENCE OF THIS EXPENDITURE BY THE ASS ESSEE FOR THE PURPOSE OF THE BUSINESS IS NECESSARY AND GENERALLY PAYMENTS ARE BEING MADE TO THE DRIVERS ON SELF-MADE VOUCHERS AND NO BILLS ARE BEING PROVIDED. UNDER THESE CIRCUM STANCES, WE FEEL THAT LUMP-SUM DISALLOWANCE OF RS.50,000/- WILL BE APPROPRIATE. WE , THEREFORE, REDUCE THE DISALLOWANCE TO RS.50,000/- 7. GROUND NO.7 RELATES TO THE CHARGING OF INTEREST UNDER SECTION 234B. AFTER HEARING THE RIVAL SUBMISSIONS, WE NOTED THAT THIS ISSUE IS COVERED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT, IN WHICH HONBLE JHARKHA ND HIGH COURT IN T.A. NO.38 OF 2010 IN THE CASE OF AJAY PRAKASH VERMA VS- ITO VID E ORDER DATED 25.07.2012 HELD AS UNDER: 24. LEARNED COUNSEL FOR THE REVENUE COULD NOT DIS PUTE THIS LEGAL POSITION. THEREFORE, SO FAR AS QUESTION OF LAW INVOLVED IN TH IS APPEAL THAT WHETHER THE INTEREST COULD HAVE BEEN LEVIED AGAINST THE ASSESSE D INCOME OF THE ASSESSEE UNDER SECTIONS 234 A AND 234 B IS CONCERNED, IN VIE W OF THE FULL BENCH JUDGMENT OF RANCHI BENCH OF PATNA HIGH COURT DELIVE RED IN THE CASE OF SMT. TEJ KUMARI, THE REVENUE CAN LEVY THE INTEREST ONLY ON THE TOTAL INCOME DECLARED IN THE RETURNS AND NOT ON THE INCOME ASSES SED AND DETERMINED BY THE A.O. TO THAT EXTENT. THE ORDERS PASSED BY THE A UTHORITIES BELOW ARE ACCORDINGLY MODIFIED AND INTEREST SHALL BE CHARGEAB LE IN THE LIGHT OF THE FULL BENCH JUDGMENT, REFERRED ABOVE. 8. WE ACCORDINGLY FOLLOWING THE ABOVE DECISION, DIR ECT THE ASSESSING OFFICER TO RECOMPUTE THE INTEREST UNDER SECTION 234B ON THE BA SIS OF THE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN FILED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 3 RD MAY, 2013. SD/- SD/- [D.T.GARASIA] [P.K. BANSAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 RD MAY, 2013 COPY OF ORDER FORWARDED TO: 1. SRI GONA DURGA SAI, PROP. M/S. SAI ENTERPRISES, JAMSHEDPUR 2. I.T.O., WARD-1(4), JAMSHEDPUR 3. C.I.T.(A), 4. THE C.I.T., 5. THE D.R., I.T.A.T., TRUE COPY, BY ORDER, SR. PRIVATE SECRETARY (ON TOUR) ITAT, RANCHI [MST, SR.PS ]