ITO, Jamshepur V. M/s. New Punjab Motor Transport, Jamshepur

ITA 13/RAN/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67338 (ITAT-RANCHI)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 18-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK ROUSHAN SR S C
• Keywords: Depreciation; Additional evidence
• Section: 234B; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI CIRCUI T BENCH, RANCHI (BEFORE SHRI P.K.BANSAL, HONBLE A.M.& SHR I D,T. GARASIA, HONBLE J.M.) I.T.A. NO. 15/RAN/13 : ASSESSMENT YEAR 2009- 10 M/S. NEW PUNJAB MOTOR TRANSPORT, JAMSHEDPUR VS- ITO, WARD-2(3), JSR (APPELLANT) PAN: AAFFN 4221P (RESPON DENT) I.T.A. NO. 13/RAN/13 : ASSESSMENT YEAR 2009-1 0 ITO, WARD-2(3), JSR -VS- M/S. NEW PUNJAB MOTOR TR ANSPORT, JAMSHEDPUR (APPELLANT) (RESPONDEN T) APPELLANT BY : SHRI S.K.PODDAR WITH SHRI M.K.CH OUDHURY, ADVOCATE RESPONDENT BY : SHRI DEEPAK ROUSHAN, SR.S.C. DATE OF CONCLUDING THE HEARING : 29.04.2013 DATE OF PRONOUNCING THE ORDER : 03.05.2013 O R D E R PER BENCH : BOTH THESE CROSS APPEALS HAVE BEEN FILED BY THE ASS ESSEE AND THE REVENUE AGAINST THE ORDER OF THE CIT(A), JAMSHEDPUR DATED 2 7.12.2012 FOR THE ASSESSMENT YEAR 2009-10. 2. GROUND NOS.1 TO 3 IN ASSESSEES APPEAL AS WELL A S GROUND NOS. 1 TO 5 IN REVENUES APPEAL RELATE TO THE COMMON ISSUE I.E. RE GARDING THE CLAIM OF DEPRECIATION @30%. 3. BRIEF FACTS OF THESE GROUNDS ARE THAT THE ASSESS ING OFFICER NOTED THAT THE ASSESSEE CLAIMED DEPRECIATION ON RUNNING OF CERTAIN VEHICLES ON HIRE @30%. THE ASSESSEE EXPLAINED THAT THE DEPRECIATION @30% HAS B EEN CLAIMED ON THE VEHICLES RUN ON HIRE. THE ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE TDS FILED BY THE ASSESSEE DOES NOT SHOW RUNNING OF THE VEHICLES ON H IRE BUT SHOWS THE TRANSPORT CHARGES IN THE NATURE OF CONTRACT. THEREFORE, HE AL LOWED THE DEPRECIATION @15% IN THE CASE OF TRUCK, EXCAVATOR AND TRAILER AND ADDED A SUM OF RS.7,99,763/-. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A), AFTER PE RUSING THE REMAND REPORT AND THE SUBMISSION OF THE ASSESSEE, NOTED THAT THE ASSESSEE HAS CLAIMED THE INCOME UNDER THE HEAD HIRE CHARGES AND ALSO THE DECISION OF THE TR IBUNAL IN ITAT, MUMBAI BENCH IN THE CASE OF ACIT(TDS)-VS- ACCENTURE SERVICES PVT . LTD. 13 ITR (TRIB.) 48 THAT HIRING CHARGES IS NOT COVERED UNDER SECTION 194-I B UT THE SAME IS COVERED UNDER SECTION 194C AND DIRECTED THE ASSESSING OFFICER TO ALLOW THE DEPRECIATION AT HIGHER RATE OF 30% IN RESPECT OF THE MOTOR LORRIES OWNED B Y THE ASSESSEE AFTER VERIFYING THE CLAIM OF THE ASSESSEE THAT THE HIRE CHARGES HAS BEE N CLAIMED BY THE ASSESSEE IN ITS LETTER DATED 09.11.2012 IN RESPECT OF ITS OWN TRUCK S. AS REGARDS THE CLAIM OF THE ASSESSEE FOR HIGHER RATE OF DEPRECIATION ON JCB, TH E ASSESSEE WAS DIRECTED TO PRODUCE EVIDENCE BEFORE THE ASSESSING OFFICER THAT THESE WE RE GIVEN ON HIRE AND THE ASSESSING OFFICER WAS ACCORDINGLY DIRECTED TO ALLOW HIGHER DEPRECIATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. IN OUR OPINION, GROUNDS TAKEN BY THE ASSESSEE ARE INFRUCTU OUS AS THE CIT(A) HAS ALREADY ALLOWED RELIEF TO THE ASSESSEE BY GIVING APPROPRIAT E DIRECTIONS TO ALLOW THE DEPRECIATION 30%. HENCE, GROUND NOS.1 TO 3 OF ASSES SEES APPEAL STAND DISMISSED. THE GROUNDS TAKEN BY THE REVENUE ARE ALSO, IN OUR O PINION, DO NOT HAVE ANY LEG TO STAND. THE CIT(A) HAS DULY CONSIDERED THE REMAND RE PORT. NO ADDITIONAL EVIDENCE, CONTRARY TO THE RULE 46A, WERE BROUGHT ON RECORD BE FORE THE CIT(A). IN VIEW OF THIS FACT, WE CONFIRM THE ORDER OF THE CIT(A) AS IT IS N OT A FIT CASE, WHICH REQUIRE OUR INTERFERENCE. AS A RESULT, GROUND NOS. 1 TO 5 OF RE VENUES APPEAL STAND DISMISSED. 5. GROUND NOS. 4 TO 6 IN ASSESSEES APPEAL AS WELL AS GROUND NOS.6 TO 8 IN REVENUES APPEAL RELATE TO THE COMMON ISSUE RELATIN G TO THE DISALLOWANCE BEING MADE UNDER SECTION 40(A)IA). THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS MADE THE PAYMENT TOWARDS TRANSPORTATION CHARGES EXCEEDING RS .20,000/- TOTALLING TO RS.3,31,03,460/- DURING THE YEAR TO THE VARIOUS PAR TIES AS GIVEN IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER ALSO ASKED FOR EXPLANA TION FROM THE ASSESSEE. THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE M ADE THE DEFAULT UNDER SECTION 194C AND ACCORDINGLY DISALLOWED A SUM OF RS.3,31,03 ,460/-. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE AS SESSEE FILED FULL DETAILS IN OVER 150 SHEETS AS WERE FILED BEFORE THE ASSESSING OFFIC ER IN RESPECT OF EXPENSES ON HIRED TRUCKS UNDER THE FOLLOWING FOUR HEADS : HIRE CHARGES PAID 8,74,66,964 PAYMENTS TOWARDS TYRES/TUBES 75,23,975 PAYMENTS TOWARDS DIESEL/FUEL 3,92,23,247 PAYMENTS TOWARDS REPAIR & OTHER CHARGES 13,98, 778 TOTAL EXPENSES ON HIRE TRUCKS 13,56,12, 964 THE ASSESSEE HAS ALSO GIVEN THE FACTUAL POSITION OF 16 PAYMENTS AND IT WAS ADMITTED BY THE ASSESSING OFFICER IN ITS ORDER AT PARA 5.1. SPECIFIC CONTENTION IS ON THE ISSUE OF RS.3,31,03,460/-. THE CIT(A) CALLED FOR THE REMAND REPORT OF THE ASSESSING OFFICER ON WHICH THE ASSESSEE HAS MADE HIS SUBMISSIONS. THE CIT(A) SPECIFICALLY, ON THE BASIS OF THE REMAND REPORT AND THE SUBMISSIONS OF T HE ASSESSEE GAVE HIS FINDINGS IN RESPECT OF DISALLOWANCE OF RS.3,31,03,460/- EACH IT EM UNDER PARA 5.4 OF HIS ORDER. IN RESPECT OF ITEM NOS.10 AND 13, THE ASSESSEE CONTEND ED THAT THE BILL OF PAYMENT FOR RS.1,17,220/- RELATES TO THE REPAIRING CHARGES WHI LE 50% THEREOF WAS ASSUMED TOWARDS THE COST OF THE MATERIALS AND THEREFORE 50% WAS DISALLOWED BY THE CIT(A) UNDER SECTION 40(A)(IA). SIMILARLY, IN RESPECT OF I TEM NO.13 FOR THE BILL FOR PAYMENT OF RS.1 LAKH, IT WAS SUBMITTED THAT RS.76,000/- WAS PA ID FOR THE BODY BUILDING OF NEW TRAILOR AND REPAIRING CHARGES WAS ONLY RS.24,000/- BUT HE CLAIMED THAT THE CIT(A) HAS NOT TAKEN THE VIEW THAT THE PROVISION OF SECTIO N 194C WAS APPLICABLE AND ACCORDINGLY SUSTAINED THE DISALLOWANCE TO RS.82,610 /- ON THESE TWO ITEMS. EVEN THERE WAS NO CONTACT BETWEEN THE PARTIES IN RESPECT OF GR OUND OF THE REVENUE. HE SUPPORTED THE ORDER OF THE CIT(A). THE LD. D.R., ON THE OTHER HAND, BEFORE US CONTENDED THAT SO FAR THE REPAIRS ARE CONCERNED, TH E PROVISION OF SECTION 194C WAS CLEARLY APPLICABLE IN RESPECT OF ITEMS FOR WHICH DI SALLOWANCE HAS BEEN DELETED. HE RELIED ON THE ORDER OF THE ASSESSING OFFICER. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTED FROM THE BILLS OF RS. 3,31,03,460/ - THAT TO THE EXPENSES, THESE EXPENSES RELATE TO THE PURCHASE OF THE CAPITAL ASSE TS OR INCURRED FROM THE BANK ACCOUNT AS PERSONAL EXPENSES, THE PROVISION OF SECT ION 194C WILL NOT APPLY AND THEREFORE IN CONSEQUENCE, NO QUESTION OF DEFAULT BE ING COMMITTED UNDER SECTION 194C ARISES. WE NOTED THAT THE MAJOR AMOUNT RELATES TO THE PAYMENT OF DIESEL TO THE PETROL PUMPS AMOUNTING TO RS.29,306,953/- ON THE PU RCHASE OF DIESEL. SIMILARLY, ON THE PURCHASE OF TYRE AND ON THE PURCHASE OF TRAILOR , TDS PROVISIONS ARE NOT APPLICABLE AND CIT(A), AFTER PERUSING EACH AND EVERY EXPENSES, HAS GIVEN THE FINDING OF FACT. NO COGENT MATERIAL OR EVIDENCE WAS PLACED BEFORE US FROM EITHER SIDE, WHICH MAY PROVE THAT THE FINDINGS GIVEN BY THE CIT(A) ARE INC ORRECT AND NOT IN ACCORDANCE WITH LAW. UNDER THESE FACTS AND CIRCUMSTANCES, WE DO NOT HAVE ANY OTHER ALTERNATIVE EXCEPT TO CONFIRM THE ORDER OF THE CIT(A). WE CONFI RM THE ORDER OF THE CIT(A). AS A RESULT, GROUND NOS. 4 TO 6 IN ASSESSEES APPEAL AND GROUND NOS.6 TO 8 IN REVENUES APPEAL STAND DISMISSED. 7. GROUND NO.7 IN ASSESSEES APPEAL RELATES TO THE CHARGING OF INTEREST UNDER SECTION 234B. 8. AFTER HEARING THE RIVAL SUBMISSIONS, WE NOTED TH AT WHILE COMPUTING THE ADVANCE TAX PAYABLE BY THE ASSESSEE UNDER SECTION 2 09, THE LIABILITY OF ADVANCE TAX SHALL BE REDUCED BY THE INCOME-TAX WHICH WOULD BE D EDUCTIBLE AT SOURCE. IN VIEW OF THIS PROVISION, SINCE THE ASSESSEE IS NOT REQUIRED TO PAY THE ADVANCE TAX ON THE INCOME SUBJECT TO TDS, THE ASSESSEE CANNOT BE LEVIED WITH INTEREST UNDER SECTION 234B ON THE ADVANCE TAX BEING LESS PAID DUE TO NO TAX HAS ACTUA LLY BEEN DEDUCTED BY THE PAYER ON THE INCOME SUBJECT TO TDS. WE ACCORDINGLY DIRECT TH E ASSESSING OFFICER TO RECOMPUTE THE INTEREST UNDER SECTION 234B, AFTER GI VING EFFECT TO OUR ABOVE FINDING. THUS, THE GROUND NO.7 TAKEN BY THE ASSESSEE IS ALLO WED. AS A RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED WHEREAS THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. 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. M/S. NEW PUNJAB MOTOR TRANSPORT, JAMSHEDPUR 2. ITO, WARD-2(3), JSR 3. C.I.T.(A), 4. THE .C.I.T., RANCHI 5. THE D.R., I.T.A.T., TRUE COPY, BY ORDER, [MST, SR.PS] SR. PRIVATE SECRETARY (ON T OUR) ITAT, RANCHI