Assistant Commissioner of Income-Tax, Central Circle-2,(1), MAHASAMUND V. SHRI MOHAMMAD ARAR, CHAMPA (CG)

ITA 120/BIL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60048 (ITAT-RAIPUR)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DARSHAN SINGH
• Assessee Lawyers: G S AGARWAL
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BILASPUR BENC H BILASPUR BEFORE SHRI SHAILENDRA KUMAR YADAV (J.M) & SHRI R.K.PANDA(A.M) ITA NO. 120/BLPR/2011(A.Y.2007-08) THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 2(1), MAHIMA COMMERCIAL COMPLEX, VYAPAR VIHAR, BILASPUR (CG) (APPELLANT) VS. SHRI MOHAMMAD ABRAT, PROP. M/S. RAJA ROADLINES, CHAMPA, DIST. JANJGIR CHAMPA (CG) PAN:AJKPM 6078M (RESPONDENT0 APPELLANT BY : SHRI DARSHAN SINGH RESPONDENT BY : SHRI G.S.AGARWAL DATE OF HEARING : 01/02 /2012 DATE OF PRONOUNCEMENT : 10/2 /2012 ORDER PER SHAILENDRA KUAMAR YADAV, J.M, THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), BILASPUR DATED 30/3/2011, WHEREIN DELETION OF ADD ITION OF RS.3,08,44,702/- MADE BY THE AO TOWARDS DISALLOWANCE U/S. 40(A)(IA) OF THE INCOME TAX ACT 1961(THE ACT) HAS BEEN OPPOSED. 2. THE ASSESSEE IS WORKING AS A TRANSPORT AGENT. H E FILED HIS RETURN OF INCOME ON 31/10/2007 DECLARING INCOME AT RS. 4,57,3 74/-, WHICH HAS BEEN ASSESSED AT RS. 3,15,43,046/-. THE AO OBSERVED THA T THE ASSESSEE HAD MADE PAYMENT OF RS. 3,08,44,702/- TO VARIOUS SUB-CONTRAC TORS FOR CARRYING OUT THE TRANSPORTATION WORK AND FAILED TO DEDUCT TDS AS REQ UIRED UNDER SECTION 194C OF THE ACT. THE AO INVOKING THE PROVISIONS OF SE CTION 40(A)(IA) OF THE ACT ITA NO. 120/BLPR/2011(A.Y.2007-08) 2 DISALLOWED RS.3,08,44,702/-. THE MATTER WAS CARRI ED TO THE FIRST APPELLATE AUTHORITY, WHO AFTER CALLING THE REMAND REPORT ALL OWED RELIEF TO THE ASSESSEE AND THE SAME HAS BEEN OPPOSED BEFORE THE TRIBUNAL ON BEHALF OF THE REVENUE. 3. THE LD. D.R SUBMITTED THAT THE CIT(A) WAS NOT JU STIFIED IN DELETING THE ADDITION OF RS. 3,08,44,702/-, WHICH WAS MADE BY TH E AO BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE CI T(A) FAILED TO APPRECIATE THE FACTS AND LAW WITH REGARD TO DISALLOWANCE IN QUESTI ON. ACCORDING TO LD. D.R THE AO WAS JUSTIFIED IN MAKING THE DISALLOWANCE U/S. 4 0(A)(IA) OF THE ACT WITH RESPECT TO THE PAYMENT IN QUESTION. HE THEREFORE, REQUESTED TO SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THAT OF AO. ON TH E OTHER HAND, LD. A.R RELIED ON THE ORDER OF CIT(A) AND POINTED OUT THAT THIS IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE CUTTACK BENCH OF THE TRIBUNAL IN THE CASE OF R.R. CARRYING CORPORATION VS. ACIT (2009) 126 TTJ ( CTK)240, WHEREIN IN SIMILAR CIRCUMSTANCES RELIEF HAS BEEN GRANTED TO THE ASSESS EE BY OBSERVING THAT IN THE ABSENCE OF ANYTHING ON RECORD TO SUGGEST EXISTENCE OF ANY CONTRACT BETWEEN THE ASSESSEE AND OTHER TRANSPORTERS WHOSE VEHICLES WERE ENGAGED BY ASSESSEE FOR EXECUTING VARIOUS CONTRACTS, THERE WAS NO CONTRACT OR AND SUB-CONTRACTOR RELATIONSHIP BETWEEN THE ASSESSEE AND THE ALLEGED SUB-CONTRACTOR, THEREFORE, ASSESSE WAS NOT LIABLE TO DEDUCT TAX UNDER SECTION 194C OF THE ACT FROM PAYMENTS MADE TO SUB-CONTRACTORS THEREFORE, THE SA ME COULD NOT BE DISALLOWED UNDER THE PROVISIONS OF SEC. 40(A)(IA) O F THE ACT. 4. TAKING ALL THE FACTS AND CIRCUMSTANCES IN TO C ONSIDERATION WE ARE NOT INCLINED TO INTERFERE IN THE FINDING OF CIT(A), W HO HAS DELETED THE ADDITION OF RS.3,08,44,702/-. THIS VIEW OF CIT(A) IS FORTI FIED BY THE DECISION OF CUTTACK ITA NO. 120/BLPR/2011(A.Y.2007-08) 3 BENCH IN THECASE OF R.R.CARRYING CORPORATION(SUPRA ). ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A) ON THE ISSUE. 5.. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 10 TH DAY OF FEB. 2012. SD/- SD/- (R.K.PANDA) (SHAILENDRA KUMAR YADAV)) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED. 10TH FEB. 2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3 . THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R BILASPUR BENCH. (TRUE COPY) BY ORDER SR. PRIVATE SECRETARY, ITAT, BILASP UR BENCH BILASPUR VM. ITA NO. 120/BLPR/2011(A.Y.2007-08) 4 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 1/2/2012 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 2/2/2012 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER