ACIT, Trichy V. S.Abdul Hakeem, Perambalur

ITA 172/CHNY/2015

• Counselvise Citation: 17221714 RSA 2015
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 27-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 23-01-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHAKIRSHNAN
• Assessee Lawyers: N DEVANATHAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , ! ' ! # . $% , & '( BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ ITA NO. 172/MDS/2015 / ASSESSMENT YEAR : 2010-11 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-I, TRICHY. APPELLANT) V. SHRI ABDUL HAKEEM, 126, NEW COLONY, THURAIMANGALAM, PERAMBALUR 621 212. PAN ADWPA7514J RESPONDENT) / APPELLANT BY : SHRI P. RADHAKIRSHNAN, JCIT / RESPONDENT BY : SHRI N. DEVANATHAN, ADVOCATE ! / DATE OF HEARING : 27.10.2015 '# ! / DATE OF PRONOUNCEMENT: 06.11.2015 ) / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) 30.10.20 14 FOR THE ASSESSMENT YEAR 2010-11. - - ITA 172/15 2 2. THE ONLY GROUND IN THIS APPEAL IS WITH REGARD TO DELETION OF ADDITION MADE ON LORRY HIRE CHARGES BY INVOKING THE PROVISIONS OF SEC.40(A)(IA) OF THE I.T. ACT, 1961. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE BEIN G A TRANSPORTER OF LIMESTONE TO VARIOUS CEMENT MANUFACT URERS AND IN THE PROCESS ENGAGED HIS OWN LORRIES AND LORRIES BOR ROWED FROM OTHERS. TILL 18.9.2009, TDS HAS TO BE DEDUCTED F OR THE PAYMENT OF LORRY FLIGHT TO TRANSPORTERS BY THE ASSESSEE AND LATER ON, AS THE LAW IS AMENDED THAT NO TDS NEED TO BE DEDUCTED ON T HE ABOVE PAYMENT AFTER 18.09.2009, IF THE ASSESSEE PROVIDES PAN DATA OF THE LORRY OWNERS. DURING THE PERIOD FROM 1.4.2009 TO 18.9.2009, THE ASSESSEE HAS PAID TRANSPORT CHARGES OF ` 73,48,761/- FOR WHICH NO DEDUCTION OF TAX AT SOURCE HAS BEEN MADE. BEFORE THE AO, THE ASSESSEES COUNSEL RELIED ON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. M ERILYN SHIPPING AND TRANSPORTS VS. ACIT (2012) 136 ITD 23 (VISAKHAPATNAM), WHEREIN IT WAS HELD THAT TDS NEED TO BE DEDUCTED ONLY FOR THE PAYABLE AMOUNT AND NOT FOR TH E AMOUNT PAID AND ALSO ON THE DECISION OF THIS TRIBUNAL IN T HE CASE OF M/S. VECTOR SHIPPING SERVICES P. LTD. IN ITA NO.122 OF 2 013 DATED - - ITA 172/15 3 09.7.2013, WHICH WAS APPROVED BY THE DECISION IN ME RILYN SHIPPING (SUPRA). HOWEVER, THE AO MADE THE ADDITIO N FOR NON- DEDUCTION OF TDS. AGGRIEVED BY THIS, THE ASSESSEE W ENT IN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX(APPEAL S), WHO DELETED THE ADDITION BY PLACING RELIANCE ON THE AFO RESAID SPECIAL BENCH DECISIONS OF THIS TRIBUNAL. AGAINST THIS, T HE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. THE ASSESSEE HAS ALSO FILED PETITION U NDER RULE 27 OF THE ITAT RULES STATING THAT THE PROVISIONS OF SE C.194C ARE NOT APPLICABLE. HOWEVER, THE SAME WAS NOT PRESSED BY T HE ASSESSEE. THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 4.1 COMING TO THE GROUND TAKEN BY THE REVENUE, WE A RE OF THE OPINION THAT SIMILAR ISSUE WAS CONSIDERED BY T HIS TRIBUNAL IN THE CASE OF N. PALANIVELU V. ITO IN ITA NO.618/MDS/ 2015 DATED 29.4.2015, WHEREIN IT WAS HELD AS UNDER: 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND - - ITA 172/15 4 TRANSPORTS VS. ACIT (2012) 136 ITD 23 (VISAKHAPATNAM) AND JUDGMENT OF GUJARAT HIGH COURT IN THE CASE OF CIT VS. M/S. VECTOR SHIPPING SERVICE S (P) LTD IN ITA NO.122 OF 2013 DATED 09.7.2013 HELD THAT SEC 40(A)(IA) IS NOT APPLICABLE WHEN THERE IS NO OUTSTANDING BALANCE AT THE END OF THE CLOSE OF THE YEAR RELEVANT TO THE ASSESSMENT YEA IN RESPECT OF THESE PAYMENT. HOWEVER, THE ASSESSEE HAS NOT BROUGHT ON RECORD, THE DETAILS OF OUTSTANDING EXPEN SES OR SCHEDULE OF SUNDRY CREDITORS SHOWING WHETHER THE IMPUGNED AMOUNT IS OUTSTANDING AT THE END OF THE CLOSE OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSME NT YEAR EITHER IN THE NAME OF THE PARTY OR OUTSTANDING EXPENSES. HENCE, IN THE INTEREST OF JUSTICE, WE ARE REMITTING THE ISSUE BACK TO THE FILE OF THE ASSESSI NG OFFICER WITH DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE AND THE ASSESSEE SHALL PLACE NECESSARY EVIDENCE IN SUPPORT OF HIS CLAIM. 4. FURTHER, WE MAKE IT CLEAR THAT IF THE IMPUGNED AMOUNT IS NOT OUTSTANDING AT THE END OF THE CLOSE O F THE ASSESSMENT YEAR IN RESPECT OF THE EXPENSES EITH ER AS OUTSTANDING EXPENSES OR AS SUNDRY CREDITORS, THI S AMOUNT CANNOT BE DISALLOWED. THIS GROUND IS REMITTE D BACK TO THE ASSESSING OFFICER FOR FRESH CONSIDERATI ON. - - ITA 172/15 5 IN VIEW OF THE ABOVE, WE REMIT THIS ISSUE BACK TO T HE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY, THE 6 TH OF NOV., 2015 AT CHENNAI. SD/- SD/- ( $ % . & '( ) ( ) * + , ) DUVVURU RL REDDY - ./012304556037- 8 9: /JUDICIAL MEMBER ! 9:;<<5=1>01>?@AB@3 )8 /CHENNAI, C9 /DATED, THE 6 TH NOV., 2015. MPO* 9D EFGF /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. H- /CIT(A) 4. H /CIT 5. FIJ K /DR 6. J(L /GF.