ITO, Ward - 3(3), Kolkata, Kolkata V. M/s. Asian Roadways Pvt. Ltd., Kolkata

ITA 1921/KOL/2010

• Counselvise Citation: 192123514 RSA 2010
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 23-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 12-10-2010
• Court: TRIBUNAL
• Department Lawyers: SUMANTA SINHA
• Assessee Lawyers: S P CHOWDHURY

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE , , , , , SHRI MAHAVIR SINGH, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER % % % % / ITA NO . 1921/KOL/2010 &' ()/ ASSESSMENT YEAR : 2007-08 (+, / APPELLANT ) I.T.O., WARD-3(3), KOLKATA - & - - VERSUS - . (./+,/ RESPONDENT ) M/S. ASIAN ROADWAYS PVT. LTD., KOLKATA (PAN-AABCA 1743 N) +, 0 1 #/ FOR THE APPELLANT: SHRI SUMANTA SINHA ./+, 0 1 #/ FOR THE RESPONDENT: SHRI S.P.CHOWDHURY #2 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 30.07.2010 OF THE CIT(A)-I, KOLKATA PERTAINING TO A.YR. 2007-08. 2. THE ONLY ISSUE RAISED BY THE REVENUE IS RE LATING TO THE DELETION OF ADDITION MADE BY THE AO U/S 40(A)(IA) OF THE IT ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT WHILE DOING THE SCRUTINY ASSESSMENT THE AO DISALLOWED AN AMOUNT OF RS.1,22,63,044/- U/S 40(A)( IA) OF THE IT ACT BY OBSERVING THAT : IN COURSE OF HEARING, THE A.R. WAS ASKED WHETHER T HE ASSESSEE COMPANY HAS SUBMITTED THAT DECLARATION FORM 15I BEFORE THE RESP ECTIVE COMMISSIONER OF INCOME TAX. THE A.R. REPLIED THAT THOSE DECLARATION S FORM WERE NOT SUBMITTED BEFORE THE COMMISSIONER OF INCOME TAX. BUT AS PER S UB RULE (3) OF RULE 29D 2 OF INCOME TAX RULE, 1962, THE PERSON RESPONSIBLE FO R PAYING SUCH SUM TO THE SUB-CONTRACTOR SHALL FURNISH THE PARTICULARS IN FOR M 15J ON OR BEFORE 30 TH JUNE, FOLLOWING THE FINANCIAL YEAR TO THE JURISDICTIONAL COMMISSIONER OF INCOME TAX. THEREFORE, THE ASSESSEE COMPANY HAD VIOLATED THE PR OVISIONS UNDER RULE 29D OF THE I.T.RULES, 1962. IN VIEW OF THE ABOVE FINDINGS OF THE CASE , IT WAS LEARNT THAT THE ASSESSEE COMPANY WAS WELL CONVERSANT WITH THE INCOME TAX ACT AND RULES. THEY HAD DEDUCTED TDS FROM PAYMENT OF FREIGHT PAID OF RS.47, 77,506/-. EVEN, THEY HAD FURTHER DEDUCTED TDS FROM PAYMENT OF FREIGHT PAID O F RS.1,92,195/- THOUGH THE SUM WAS DEPOSITED ON 17-10-2007. THEREAFTER THEY RE ALIZED THAT THE TDS OF REMAINING PAYMENT OF RS.1,45,19,514/- HAD TO BE DED UCTED. TO PREVENT THIS, THEY PREPARED ALL DECLARATIONS IN FORM NO.15I FOR N ON DEDUCTION OF TDS AS PER THEIR LEDGER COPY. IT WAS ALSO FOUND FROM LEDGER COPY THAT SO ME PAYMENTS WAS NOT EXCEEDING RS.20,000/- SUCH PAYMENTS WAS AMOUNTING T O RS.22,56,470/-. AS PER SEC.194C OF THE I.T.ACT1961, NO DEDUCTION SHAL L BE MADE WHERE THE AMOUNT OF ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID TO THE ACCOUNT OF, OR TO THE CONTRACTOR OR SUB-CONTRACTOR, IF SUCH SUM DOES NOT EXCEED TWENTY THOUSAND RUPEES. THEREFORE, THE SUM OF RS.22 ,56,470/- IS NOT DISALLOWED AS PER SECTION 40(A)(IA) FOR NON DEDUCTION OF TDS. 3.1. ON APPEAL THE LD. CIT(A) DELETED THE SAME B Y OBSERVING THAT 5. I HAVE CAREFULLY CONSIDERED THE SUBMISSION AN D ARGUMENTS OF THE A/R. THE ASSESSING OFFICER DISALLOWED RS.1,22,63,044/- UNDER SECTION 40(A)(IA) FOR NON DEDUCTION OF TDS ON FREIGHT PAID TO VARIOUS LORRYW ALAS. THE A/R PRODUCED BEFORE ME THE COPIES OF FORM NO.15I WHICH WERE DULY RECEIVED FROM VARIOUS LORRYWALAS AND THE SAME WERE SUBMITTED TO THE AO ALSO. I AM OF THE OPINION THAT SAID DECLARATION IN FORM NO.15-I WHICH WAS OBT AINED FROM THE VARIOUS LORRYWALAS WAS IN THE USUAL COURSE OF BUSINESS AN D CANNOT BE DOUBTED AS AN AFTER THOUGH WITHOUT THERE BEING SOME POSITIVE EVID ENCE TO THE CONTRARY. THE LD A/R ARGUED BEFORE ME THAT WHEN THE GOODS WAS TRA NSPORTED TO VARIOUS PLACES BY LORRIES TAKEN ON HIRE FROM THE AVAILABLE MARKET AND VARIOUS DOCUMENTS INCLUDING BILLS, VOUCHERS AND CHALLANS WE RE ENTERED IN REGULAR BOOKS OF ACCOUNTS AND WERE PRODUCED BEFORE THE AO, ACCORD ING TO WHICH NO TDS WAS TO BE DEDUCTED BY THE APPELLANT AND AS SUCH THE AO SHOULD NOT HAVE BEEN MADE AN ADDITION ON SUCH EPHEMERAL GROUNDS. HE HAS ALSO PRODUCED BEFORE ME THE COPY OF FORM NO.15J FILED ON 8/6/07 BEFORE THE JURI SDICTIONAL CIT AS REQUIRED UNDER RULE 29D OF I.T.RULES, 1962 WHICH CONTAINS TH E NAME, ADDRESS, TRUCK REGISTRATION NUMBER ETC. THE LD. A/R HAS DRAWN MY A TTENTION TO THE DECISIONS OF THE HONBLE APEX COURT IN THE CASE OF DHAKESWARI COTTON MILLS LTD. V. CIT 26 ITR 775 (S.C) AND LALCHAND BHAGAT AMBICARAM V. C IT 37 ITR 288 (S.C.) IN WHICH IT WAS HELD THAT MERE SUSPICION CANNOT TA KE THE PLACE OF PROOF FOR THE PURPOSE OF PASSING AN ORDER OF ASSESSMENT. ON VERI FICATION OF THE DOCUMENTS PRODUCED BY THE TRUCKERS (LORRY WALLAHS DECLARATION FOR NON DEDUCTION OF TDS 3 IN FORM 15I. I BELIEVE THAT THE APPELLANT WAS NOT L IABLE TO DEDUCT TDS INDEED THE QUESTION OF ADDITION U/S 40(A)(IA) COULD HARDLY ARI SE. IT IS ALSO OBSERVED THAT FORM NO.15J WAS DULY FILLED IN THE OFFICE OF JURISD ICTIONAL CIT WITHIN THE STIPULATED TIME WHICH CONTAINED ALL THE REQUIRED PA RTICULARS UNDER RULE 29D READ WITH SECTION 194(C)(3). 4. AT THE TIME OF HEARING THE LD. DR APPEARIN G ON BEHALF OF THE REVENUE REITERATED THE SUBMISSIONS MADE BY THE AO AND FURTHER SUBMITTE D THAT THE LD. CIT(A) IS NOT JUSTIFIED BOTH ON THE FACTS AND IN LAW DIRECTING TO DELETE THE ADDITION U/S 40(A)(IA) OF RS.1,22,63,044/- MADE BY THE AO ON ACCOUNT OF FREIG HT CHARGES PAID WITHOUT DEDUCTING TDS MERELY RELYING ON THE ASSESSEES SUBM ISSION AND FRESH EVIDENCE BY WAY OF FORM NO.15J WHICH WERE NOT PRODUCED BEFORE T HE AO IN COURSE OF ASSESSMENT PROCEEDINGS. HE FURTHER SUBMITTED THAT THE LD. CIT( A) IS NOT JUSTIFIED IN RELYING ON THE ASSESSEES EXPLANATIONS AND SUBMISSION WITHOUT SEEK ING ANY REMAND REPORT FROM THE AO. THE LD. CIT(A) ERRED IN DELETING THE SAID ADDIT ION BY VIOLATING THE PROVISION OF RULE 46A BY ACCEPTING FRESH EVIDENCE BY WAY OF FORM NO.15J WHICH WAS NOT PRODUCED BEFORE THE AO IN COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE HE REQUESTED TO SET ASIDE THE ORDERS OF THE LD. CIT(A) AND RESTORE THAT OF THE AO. 5. ON THE OTHER HAND, THE LD. COUNSEL APPEARI NG ON BEHALF OF THE ASSESEE BY REFERRING TO THE PAPER BOOK PAGES NOS. 1 TO 8 AND 1 3 TO 41 WHICH ARE CONTAINING FORM NO.15J FILED BEFORE THE LD. CIT(A) AND FORM NO.15I OBTAINED FROM DIFFERENT TRUCK OWNERS, CONTENDED THAT BASED ON THESE THE ACTION OF THE LD. CIT(A) IS JUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THEREFORE, HE REQUESTED TO UPHOLD THE SAME. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT TH AT THE LD. DR THOUGH RELIED ON THE ORDERS OF THE AO COULD NOT CONTRADICT THE OBSERVATI ONS MADE BY THE LD. CIT(A) AND FURTHER KEEPING IN VIEW OF THE FACT THAT THE ASSESS EE HAS FILED FORM NO.15J BEFORE THE CONCERNED CIT(A) ON 8 TH JUNE, 2007 AS PER PAPER BOOK PAGE NO.1 I.E. WITHIN THE STIPULATED PERIOD AND MUCH BEFORE PASSING OF THE AS SESSMENT ORDER. THEREFORE, WE FIND NO JUSTIFICATION ON THE PART OF THE AO WHO DISBELIE VED THE CONTENTION OF THE ASSESSEE 4 AND MADE DISALLOWANCE U/S 40(A) (IA) OF THE ACT. I N VIEW OF THIS WE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A) TO BE INTERFERED WI TH AND WE UPHOLD THE SAME. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.06.2011. SD/- SD/- MAHAVIR SINGH, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 23.06.2011 #2 0 .3 4#3(5- COPY OF THE ORDER FORWARDED TO: 1. M/S.ASIAN ROADWAYS PVT. LTD., 16, TARACHAND DUTTA S TREET, KOLKATA- 700073. 2 THE I.T.O., WARD-3(3), KOLKATA 3. THE CIT, 4. THE CIT(A)-I, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA /3 ./ TRUE COPY, #2&:/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)