M/s. Chandan Trans-Cons Pvt. Ltd, Rourkela V. DCIT,Rourkela Circle, Rourkela

ITA 14/CTK/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5885 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 08-07-2024
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Non-deduction of tax; Tax effect; TDS
• Section: 40(a)(ia); 201(1); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE MANISH AGARWAL Assessment Year M/s. Chandan Trans Ltd., At-FF/2, Civil Township, Rourkela, Dist: Sundargarh PAN/GIR No (Appellant Assessment Years : 2009 ITO, Ward-1, Rourkela PAN/GIR No.AACCC 5185 B (Appellant Per Bench ITA Nos.14 & 15/CTK/2024 for A.Y. 2008 The assessee has filed CIT(A), NFAC, Delhi both dated 4.10.2023 in Appeal No.NFAC/2007 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI GEORGE MATHAN, JUDICIAL AND MANISH AGARWAL, ACCOUNTANT MEMBER ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009 M/s. Chandan Trans-cons Pvt FF/2, Civil Township, Rourkela, Dist: Sundargarh Vs. DCIT, Rourkela Circle, Rourkela PAN/GIR No.AACCC 5185 B (Appellant) .. ( Respondent ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008 1, Rourkela Vs. M/s. Chandan Trans Ltd., At-FF/2, Civil Township, Rourkela, Dist: Sundargarh PAN/GIR No.AACCC 5185 B (Appellant) .. ( Respondent Assessee by : None Revenue by : Shri S.C.Mohanty Date of Hearing : 09/0 Date of Pronouncement : 09/0 O R D E R ITA Nos.14 & 15/CTK/2024 for A.Y. 2008-09 & 2009 The assessee has filed these two appeals against the orders of the ld CIT(A), NFAC, Delhi both dated 4.10.2023 in Appeal No.NFAC/2007 Page1 | 6 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER , ACCOUNTANT MEMBER 24 09 and 2009-2010 DCIT, Rourkela Circle, Rourkela Respondent) ITA Nos.339 & 340 /CTK/2023 10 and 2008-2009 M/s. Chandan Trans-cons Pvt FF/2, Civil Township, Rourkela, Dist: Sundargarh Respondent) S.C.Mohanty, Sr DR 07/2024 /07/2024 09 & 2009-10 against the orders of the ld CIT(A), NFAC, Delhi both dated 4.10.2023 in Appeal No.NFAC/2007- ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009-2010 ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008-2009 Page2 | 6 08/10053434 and in Appeal No.NFAC/2008-09/10052728 for the assessment years 2008-09 & 2009-10, respectively. 2. None represented on behalf of the assessee and Shri S.C.Mohanty, Sr. DR appeared for the revenue. 3. It was submitted by ld Sr DR that the ld CIT(A) after considering the order of the Co-ordinate Bench of this Tribunal in assessee’s own case for the assessment years 2008-09 to 2010-2011 order dated 22.11.2021 had held that the assessee has been unable to show that there is no violation of provisions of section 40(a)(ia) of the Act in respect of transportation charges and payments made to the contractors and hire charges. Ld CIT(A) had directed the disallowance at 30% of the expenses claimed whereas the Assessing Officer had originally disallowed 100%. It was the submission by ld Sr DR that the revenue is in appeal for reduction of the disallowance from 100% to 30% and the assessee has challenged the disallowance of 30%. It was the submission that the proceedings u/s 201(1) and assessment proceedings are separate and independent proceedings. He vehemently supported the order of the Assessing Officer. 4. We have considered the submissions of ld Sr DR. A perusal of the order of the Co-ordinate Bench of this Tribunal in assessee’s own case for the assessment years 2008-09 to 2010-2011 in ITA Nos.107-109/CTK/2013 ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009-2010 ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008-2009 Page3 | 6 order dated 10.12.2020 and M.A. Nos.28-30/CTK./2021 order dated 22.11.2021 clearly shows that the Co-ordinate Bench has held as follows: “7. We, however, observe that this Tribunal by giving its finding in para 15 to 20 has restored the issue to the AO for reconciling figures of the transportation charges and machine hire charges after providing reasonable opportunity of being heard to the assessee. We find that this finding of the Tribunal of restoring the issue to the file of AO is not correct as the ld. Counsel for the assessee has specifically requested to decide the matter as per the material available on record and also the details of notable difference were provided by the ld. Departmental representative. We, therefore, are of the view that there is a mistake apparent from the record which needs to be rectified. We accordingly hold that our following findings are to be substituted in place of the finding given by this Tribunal in para 15 to 20 in the impugned order :- “After hearing both the parties, submission given and list filed by the ld. DR for the notable difference of Rs.270,239/-, we find that the AO raised the demand for non-deduction of tax u/s.194-C and 194-I of the Act for non-deduction of tax on transportation charges and machine hiring charges, respectively. The assessee has consistently contended that as regards the transportation charges single payment was less than Rs.20,000/- and aggregate payment for the year to a particular transporter was less than Rs.50,000/- and, therefore, there was no requirement to deduct tax u/s.194-C of the Act. Similarly with regard to machine hiring charges, the assessee’s contention is that none of the payment to a party has exceeded the threshold limit of the Rs.1,20,000/-. The instant appeals pertain to assessment years 2008- 2009, 2009-2010 & 2010-2011. Various hearings have been taken place before the Tribunal as well as lower authorities about the reconciliation of each of the amount so paid. The assessee’s contention was always that it was not required to deduct tax u/s.194-C/194-I of the Act, whereas the ld. DR contended that assessee was liable to deduct tax. Thereafter the revenue authority made some efforts and collected information through Vahan-NR-E and verification was made on the basis of vehicle numbers and finally some instances were found where no such vehicles were found to be registered. Total of such amount was Rs.270,239/-, to which the assessee failed to give any satisfactory reply. Apart from this notable difference, no other discrepancy was put forth by the revenue authorities. Ld. Counsel for the assessee has also conceded to the fact that the assessee was unable to given any clarification to the alleged notable difference of ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009-2010 ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008-2009 Page4 | 6 Rs.270,239/- which pertains to transportation charges. We, therefore, under the given facts and circumstances of the case, being fair to both the parties and in the interest of justice are of the considered view that the assessee failed to deduct tax on the alleged notable difference of Rs.270,239/- @1% which pertains to A.Y.2008-2009 to 2010-2011 and demand of tax of Rs.2702/- needs to be sustained and the consequential interest, if any, should be charged accordingly. Since specific details for A.Y.2008-2009 to 2010-2011 are not available on record and the matter being almost 13 years old, we direct the AO to recover this demand of TDS of Rs.2702/- and interest thereon treating the alleged demand for A.Y.2008-2009. Accordingly, the appeal of the assessee for A.Y.2008-2009 in ITA No.107/CTK/2013 is partly allowed and appeals of the assessee for A.Y.2009-2010 & 2010-2011 in ITA Nos.108&109/CTK/2013 are allowed.” 8. In view of the above, all the three miscellaneous applications filed by the assessee are allowed.” 5. A perusal of the said Miscellaneous applications order extracted above clearly shows that the Tribunal has held that the assessee has failed to deduct TDS of 1% in default of Rs.2,70,239/- for the assessment year 2008-09 only. For the assessment year 2009-10, the issue has been held in favour of the assessee holding that no TDS is liable to be deducted. This being so, in respect of appeal of the assessee in ITA No.14/CTK/2024 relating to assessment year 2008-09 in view of the second proviso to section 40(a)(ia) of the Act, 30% disallowance is liable to be made only in respect of Rs.2,70,239/-. In respect of ITA No.15/CTK/2024 for A.Y. 2009- 10, as no TDS is liable to be made, as has been held by the Co-ordinate Bench in assessee’s own case (supra), the disallowance u/s.40(a)(ia) of the Act would no more survive and same stands deleted. ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009-2010 ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008-2009 Page5 | 6 6. In the result, appeal for assessment year 2008-09 is partly allowed and the appeal for assessment year 2009-10 is allowed. ITA Nos.339 & 340/CTK/2023-A.Y. 2009-10 & 2008-09. 7. The revenue has filed these two appeals against the orders of the ld CIT(A), NFAC, Delhi both dated 4.10.2023 in Appeal No.NFAC/2008- 09/10052728 and in Appeal No.NFAC/2007-08/10053434 for the assessment years 2009-10 & 2008-09, respectively. 8. We have considered the submissions of ld Sr DR. Ld Sr D.R. fairly conceded that the tax effect involved in the grounds raised by the Revenue being below Rs.50 lakhs, the appeals filed by the Revenue squarely falls within the ambit of the CBDT Circular No.17/2019 dated 8th August, 2019 and the subsequent clarification dated 20th August, 2019, therefore, the appeals filed by the revenue are not maintainable. In view of above, we hold that in view of the CBDT Circular No.17/2019 dated 8th August, 2019 (supra) raising the monetary limit for filing of the appeals by the Revenue before the Tribunal to Rs.50 lakhs and the subsequent clarification dated 20th August, 2019 to the effect that the said Circular is applicable even to pending appeals, the appeals filed by the Revenue are not maintainable. Consequently, the same are dismissed. ITA Nos.14 & 15 /CTK/2024 Assessment Years : 2008-09 and 2009-2010 ITA Nos.339 & 340 /CTK/2023 Assessment Years : 2009-10 and 2008-2009 Page6 | 6 9. In the result, appeals of the revenue stand dismissed. Order dictated and pronounced in the open court on 09/07/2024. SD/- SD/- (Manish Agarwal) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 09/07/2024 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, CUTTACK 1. The assessee:M/s. Chandan Trans-cons Pvt Ltd., At-FF/2, Civil Township, Rourkela, Dist: Sundargarh 2. The Revenue: DCIT, Rourkela Circle, Rourkela/ ITO, Ward-1, Rourkela 3. The CIT(A)- NFAC, Delhi 4. Pr.CIT, Sambalpur 5. DR, ITAT, 6. Guard file. //True Copy//