ACIT, CHENNAI V. Srinivasa Road Carriers Pvt. Ltd., CHENNAI

ITA 1470/CHNY/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68773 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 01-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T N BETGERI IRS
• Keywords: Opportunity of being heard
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.1470(MDS)/2013 ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE VI(4), CHENNAI. VS M/S. SRINIVASA ROAD CARRIERS PVT. LTD., NO.42/4, SOUTH SIVAN KOIL STREET, VADAPALANI, CHENNAI-600026. PAN AAJCS8723J. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N.BETGERI, IRS , JCIT RESPONDENT BY : NONE DATE OF HEARING : 30 TH SEPTEMBER, 2013 DATE OF PRONOUNCEMENT : 30 TH SEPTEMBER, 2013 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT THIS APPEAL IS FILED BY THE REVENUE. THE RELEVAN T ASSESSMENT YEAR IS 2008-09. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS)-V AT CHENNAI, - - ITA 1470 OF 2013 2 DATED 22-3-2013 AND ARISES OUT OF THE ASSESSMENT CO MPLETED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961. 2. THE GROUNDS RAISED BY THE REVENUE IN THE PRESEN T APPEAL READ AS BELOW:- 2.1 THE LD. CIT(A) ERRED IN DELETING THE ADDITION U/S 40(A)(IA) ON THE PAYMENTS MADE FOR LORRY HIRE CHARGES BY THE ASSESSEE COMPANY. 2.2. THE LD. CIT(A) OUGHT TO HAVE NOTED THAT THE PAYMENTS MADE FOR LORRY CHARGES DURING THE ORDINARY COURSE OF BUSINESS ACTIVITIES COMES UNDER THE PROVISION OF TDS UNDER SEC.194C OF THE IT ACT. 2.3 THE LD. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAS NOT SUBMITTED FORM 15J TO THE CIT AS SPECIFIED IN SEC.194C(3)(I) 3 RD - - ITA 1470 OF 2013 3 PROVISO R.W.R.29D AND HENCE AUTOMATICALLY BECOMES LIABLE FOR DEDUCTION OF TAX AND NON- DEDUCTION OF TDS ATTRACTS SEC.40(A)(IA) OF THE ACT. 2.4 THE LD. CIT(A) RELIED UPON THE DECISION OF THE ITAT, AHMEDABAD IN THE CASE OF VALLIBHAI KHANBAI MANKAD (2012) (28 TAXMANN.COM 119)(GUJ) AND ITAT, KOLKATA IN THE CASE OF RAJESH KR. GARG IN ITA NO.532/KOL/2011. 2.5 IT IS SUBMITTED THAT THE CIT(A)S ORDER RELIED UPON THE ITATS ORDER IN THE ABOVE MENTIONED CASE IS NOT BINDING SINCE THE JURISDICTION HIGH COURT IN THE CASE OF M/S VISVAS PROMOTERS P. LTD (323 ITR 114) HELD THAT OTHER JURISDICTIONAL TRIBUNALS/COURTS ARE NOT BINDING. - - ITA 1470 OF 2013 4 3. WHEN THE MATTER WAS CALLED ON FOR HEARING, NOBO DY WAS PRESENT FOR THE RESPONDENT-ASSESSEE INSPITE OF SERVICE OF NOTICE. THEREFORE, WE PROCEED TO DISPOSE OF THE AP PEAL EX-PARTE, QUA THE ASSESSEE. WE HEARD SHRI T.N.BETGERI, THE L EARNED COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVENU E. 4. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS MADE A DISALLOWANCE UNDER SECTION 40(A)(IA) ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE TDS PROVISIO NS AS REQUIRED UNDER SECTION 194C OF THE INCOME-TAX ACT, 1961. BUT, THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS HELD TH AT DECLARATIONS HAVE BEEN FURNISHED BY THE ASSESSEE, A S REQUIRED UNDER SECTION 197A(2) OF THE ACT AND IN THE ABSENCE OF ANY FURTHER EVIDENCE, THE DISALLOWANCE MADE BY THE ASSE SSING OFFICER WAS NOT JUSTIFIED. 5. ON GOING THROUGH THE ORDER OF THE ASSESSING OFF ICER, WE FIND THAT THE ASSESSEE HAS NOT FURNISHED ANY SOR T OF FORM OR DETAILS BEFORE THE ASSESSING OFFICER TO CLAIM IMMUN ITY FROM DEDUCTING TAX AT SOURCE, AS REQUIRED UNDER SECTION 194C OF THE - - ITA 1470 OF 2013 5 ACT. IT IS ONLY BEFORE THE COMMISSIONER OF INCOME -TAX(APPEALS) THAT THE ASSESSEE HAS TAKEN A CONTENTION THAT DECLA RATIONS WERE FILED BEFORE THE COMMISSIONER OF INCOME-TAX(TDS). 6. IT IS THE FINDING OF THE COMMISSIONER OF INCOME - TAX(APPEALS) THAT APART FROM AN ADVERSE INFERENCE M ADE BY THE ASSESSING OFFICER, THERE IS NO OTHER EVIDENCE IN TH E HANDS OF THE REVENUE TO HOLD THAT DECLARATIONS WERE NOT SUBMITTE D BY THE PAYEES OF THE INTEREST TO THE ASSESSEE AT THE TIME WHEN THE PAYMENTS WERE MADE. HE HELD THAT WITHOUT DISPROVIN G THE ASSESSEES CLAIM ON THE BASIS OF OTHER EVIDENCE, EX CEPT BY WAY OF INFERENCE, IT WOULD NOT BE FAIR OR PROPER TO DIS CARD THE CLAIM. IT IS ON THE BASIS OF THE ABOVE OBSERVATIONS THAT THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS DELETED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER. 7. THE RELEVANT OBSERVATIONS OF THE COMMISSIONER O F INCOME-TAX(APPEALS) ARE AVAILABLE IN THE LAST PORTI ON OF PAGE 8 AND THE BEGINNING PORTION OF PAGE 9 OF HIS ORDER. THE COMMISSIONER OF INCOME-TAX(APPEALS) IS IN FACT EXPE CTING THE ASSESSING OFFICER TO PROVE THE NEGATIVE. WHEN TH E ASSESSEE - - ITA 1470 OF 2013 6 HAS NOT PRODUCED ANYTHING BEFORE THE ASSESSING OFFI CER TO CLAIM IMMUNITY FROM TDS PROVISION, IT WAS NOT THE DUTY OF THE ASSESSING OFFICER TO LOOK FOR ANY OTHER EVIDENCE TH AT THE ASSESSEE HAD. THE COMMISSIONER OF INCOME-TAX(APPEA LS) SAYS THAT THE ASSESSING OFFICER HAS NOT PROVED THAT THE ASSESSEE HAD NO OTHER EVIDENCE WITH IT. HOW THE ASSESSING OFFIC ER CAN BE CALLED UPON TO PROVE THE NEGATIVE? THEREFORE, WE F IND THAT THE FINDING OF THE COMMISSIONER OF INCOME-TAX(APPEALS) IS WITHOUT ANY BASIS. IT IS NOT SUSTAINABLE IN LAW. WE SET A SIDE HIS ORDER. 8. WE REMIT THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE ANY EVIDENCE AVAILABLE IN THE HANDS OF THE ASSESSEE AS IT HAS PLEADED BEFORE THE COMMISSIONER OF INCOME-TAX(APPEALS). THE ASSESSEE MAY BE GIVEN AN OPPORTUNITY OF BEING HEARD SO THAT IT COUL D PRODUCE EVIDENCES BEFORE THE ASSESSING OFFICER. IF THE ASS ESSEE HAD FURNISHED THE DETAILS BEFORE THE COMMISSIONER OF IN COME- TAX(TDS), AS ARGUED BEFORE THE COMMISSIONER OF INCO ME- TAX(APPEALS), THE ASSESSING OFFICER MAY LOOK INTO T HOSE DETAILS - - ITA 1470 OF 2013 7 AS WELL. THE ASSESSING OFFICER IS THUS DIRECTED TO RECONSIDER THE ISSUE AND PASS AN ORDER IN ACCORDANCE WITH LAW. 9. IN RESULT, THIS APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME O F HEARING ON MONDAY, THE 30 TH OF SEPTEMBER, 2013 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 30 TH SEPTEMBER, 2013. V.A.P. COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.