MAHENDRA KUMAR SHARMA, Jaipur V. ITO, Jaipur

ITA 106/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5341 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Keywords: Principle of natural justice

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 106/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 MAHENDRA KUMAR SHARMA, PROP.- SIKAR LUDHIYANA ROAD LINES, NEAR SIKAR ROAD, VKI AREA, JAIPUR. CUKE VS. I.T.O. WARD 4(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ANWPS 9860 L VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/02/2016 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 22/04/2016 VKNS'K @ ORDER PER: R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE APPELLANT AGAINST TH E ORDER DATED 11/12/2013 PASSED BY THE LEARNED CIT(A)-II, JAIPUR FOR A.Y. 2009-10. THE RESPECTIVE GROUNDS OF APPEAL RAISED BY THE APPEL LANT ARE AS UNDER:- 1 THAT THE LD. ASSESSING OFFICER GROSSLY ERRED IN L AW AND IN FACTS IN MAKING ADDITION OF RS. 83,26,631/- UNDE R SECTION 40(A)(IA) OF THE INCOME TAX ACT, 1961 AND COMMISSIONER OF INCOME TAX (APPEALS) GROSSLY ERRED I N ITA 106/JP/2014_ MAHENDRA KUMAR SHARMA VS. ITO 2 LAW AND FACTS IN CONFIRMING THE ORDER OF ASSESSING AUTHORITY. 2. THE LD ASSESSING OFFICER HAVE GROSSLY ERRED IN LA W AND FACTS IN DISALLOWING THE EXPENSES OF TRUCK ON BY THE HUMBLE APPELLANT AND ALSO ESTIMATING THE INCOME U/S 44AE. 3. THAT THE LD ASSESSING AUTHORITY GROSSLY ERRED IN LAW AND FACTS IN DISALLOWING THE EXPENSES AND IN MAKING ADDITION OF RS. 85,10,631/- IN THE INCOME DECLARED BY THE APPELLANT IN THE RETURN. 4. THAT THE LD. LOWER AUTHORITIES GROSSLY ERRED IN LA W AND FACTS IN PASSING ORDER ON THE BASIS OF ASSUMPTION A ND PRESUMPTIONS. 5. THAT THE ORDER OF LD. LOWER AUTHORITIES ARE AGAINS T PRINCIPLES OF NATURAL JUSTICE. 2. THE LD COUNSEL FOR THE ASSESSEE CONTENDS THAT THE SIMILAR ISSUE AROSE IN A.Y. 2008-09AND HONBLE ITAT VIDE ORDERDATE D30/10/2015 DELETED THE DISALLOWANCE BY FOLLOWING OBSERVATIONS. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AFTER CONSIDERING THE ORDER OF LD ASSESSING OFFICER AND L D CIT(A), IT IS FOUND THAT THE ASSESSEE IS A TRANSPORTER BUT DID NOT OWN ANY TRUCK BUT ARRANGE THE TRUCK FROM THE MARKET. THE CUSTOMER IS GENERALLY MADE CONTRACT TO TRANSPORTER FOR ARRANGING THE TRUCKS FOR TRANSPORTATION OF GOODS. I N THE PRESENT CASE, THE ASSESSEE IS AN INTERMEDIARY AND C ONDUIT TO MAKE AVAILABLE THE TRUCKS FROM THE MARKET AND IS SUE GR IN HIS OWN NAME BUT ONLY CHARGED COMMISSION FOR MAKI NG ITA 106/JP/2014_ MAHENDRA KUMAR SHARMA VS. ITO 3 BUILTY. IT IS A FACT THAT THE CUSTOMERS DEDUCT TAX IN THE NAME OF APPELLANT BUT THE TRUCK OWNERS WAS TO BE PAID THE AMOUNT OF TDS BY THE ASSESSEE. THE ASSESSEE GOT THE REFUND AND ADJUST THE REFUND AGAINST THE PAYMENT MA DE BY HIM TO THE TRUCK DRIVERS. THE ASSESSEE HAS NOT DEBIT ED ANY EXPENSES ON ACCOUNT OF FREIGHT CHARGES IN THE P&L A CCOUNT. THEREFORE, SECTION 40(A)(IA) IS NOT APPLICABLE AND I S ALSO NOT LIABLE TO BE DEDUCTED TDS U/S 149C OF THE ACT. THE CASE LAWS REFERRED BY THE ASSESSEE ARE SQUARELY APPL ICABLE ON IT. THE ASSESSEE ALSO HAD FILED FORM NO. 15J BEFO RE THE ADDL.CIT AND AT THE TIME OF ASSESSMENT PROCEEDINGS B EFORE THE ASSESSING OFFICER, WHICH HAS NOT BEEN CONTROVERT ED BY THE DR. IF THE ASSESSEE HAS PRODUCED THE EVIDENCE REGARDING SUBMISSION OF FORM NO. 15-J BEFORE THE LO WER AUTHORITY, IN WHICH SOME FAULT HAD BEEN FOUND ON THE GROUND THAT NO SIGNATURE, NUMBER OF RECEIPTS HAS BE EN PROVIDED BY THE RANGE OFFICE, IS NOT ANY FAULT ON P ART OF THE ASSESSEE. THE ASSESSEE HAS FURNISHED THE FORM NO. 15 -J IN THE OFFICE OF THE COMMISSIONER. VARIOUS COURTS ALSO EVEN CONSIDERED AND HELD JUSTIFIED FORM NO. 15-J BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT PROCEED INGS. THEREFORE, WE REVERSE THE ORDER OF THE LD CIT(A). ACCORDINGLY, THIS APPEAL IS ALLOWED. LD. COUNSEL DREW OUR ATTENTION ON THE ORDER OF THE L D ASSESSING OFFICER IN WHICH FOR DISALLOWANCE U/S 40(A)(IA) FOR A.Y. 2008 -09 HE HELD AS UNDER:- ITA 106/JP/2014_ MAHENDRA KUMAR SHARMA VS. ITO 4 IT MAY BE MENTIONED THAT IN THIS CASE DISALLOWANCE OF RS. 87,97,747/- WAS MADE BY A.O. ON SIMILAR ISSUE U/S 40 (A)(IA) FOR THE A.T. 2008-09. THE ASSESSEE FILED AN APPEAL AG AINST THIS ORDER BEFORE THE LD CIT(A). ASSESSEES CASE WAS DECID ED BY THE LD CIT(A)-II, JAIPUR VIDE ORDER DATED 29/11/2011 . VIDE THIS ORDER THE LD CIT(A) HAS HELD THAT THIS A CASE OF PAY MENT TO SUB-CONTRACTORS WITHOUT DEDUCTING TDS THEREFORE, DISA LLOWANCE WAS SUSTAINED AND ASSESSEES APPEAL WAS REJECTED. 3. APROPOS REMAINING ADDITIONS, THE LD COUNSEL CONT ENDS THAT THE ASSESSEE MAINTAINS PROPER BOOKS OF ACCOUNT, WHICH AR E DULY AUDITED AND FOR NO REASON AND WITHOUT REJECTING THE BOOKS OF ACC OUNT, INCOME HAS BEEN ESTIMATED U/S 44AE OF THE INCOME TAX ACT, 1961 AND ADDITION OF RS. 1,84,000/- HAS BEEN MADE. IT IS PLEADED THAT BO TH THE ADDITIONS ARE UNJUSTIFIED AND MAY BE DELETED. 4. THE LD DR SUPPORTED THE ORDER OF THE LD CIT(A). 5. WE FIND MERIT IN THE CONTENTION OF THE LD AR OF THE ASSESSEE THAT THE IN SIMILAR FACTS AND CIRCUMSTANCES ITAT HAS ALLO WED THE ASSESSEES APPEAL FOR A.Y. 2008-09 ON THE SAME ISSUE OF DISALL OWANCE U/S 40(A)(IA). THEREFORE, ADDITION OF RS. 83,26,631/- IS DELETED. 6. APROPOS THE OTHER ISSUES, THE ASSESSEES BOOKS O F ACCOUNT HAVE NOT BEEN REJECTED, THEREFORE, THERE IS NO JUSTIFICA TION IN ESTIMATING THE ITA 106/JP/2014_ MAHENDRA KUMAR SHARMA VS. ITO 5 INCOME U/S 40(A)(IA) OF THE ACT. CONSEQUENTLY, THE ADDITION OF RS. 1,84,000/- IS DELETED. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/04/2016. SD/- SD/- FOE FLAG ;KNO V KJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 22 ND APRIL, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI MAHENDRA KUMAR SHARMA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 4(2), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 106/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR