ITO, New Delhi V. Sh. Kuldeep Kumar Sharma, Delhi

ITA 200/DEL/2013

• Counselvise Citation: 20020114 RSA 2013
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Rule of consistency
• Section: 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D: NEW DELHI BEFORE SH. J.S. REDDY, ACCOUNTANT MEMBER AND SH. KULDIP SINGH, JUDICIAL MEMBER ITA NOS. 200 /DEL/2013 ASSESSMENT YEARS: 2008-09 INCOME TAX OFFICER, VS. SH. KULDEEP KUMAR SHARMA , WARD-34(3), NEW DELHI D-386/9, GALI NO.-9, BHAJANPURA, DELHI (PAN: APOPS2978E) (APPELLANT) (RESPONDENT) AND ITA NOS. 201/DEL/2013 ASSESSMENT YEARS: 2009-10 INCOME TAX OFFICER, VS. SH. KULDEEP KUMAR SHARMA , WARD-34(3), NEW DELHI D-386/9, GALI NO.-9, BHAJANPURA, DELHI (PAN: APOPS2978E) (APPELLANT) (RESPONDENT) APPELLANT BY : MS. SULEKHA VERMA, CIT(DR) RESPONDENT BY : SH. SALIL AGGARWAL, ADV & SH. SHAIL ESH GUPTA, CA DATE OF HEARING: 03.11.2015 DATE OF PRONOUNCEMENT: 04.12.2015 ORDER PER KULDIP SINGH, J.M.: THE APPELLANT (HEREIN AFTER REFERRED AS THE REVEN UE) BY FILING THE PRESENT APPEALS SOUGHT TO SET ASIDE THE IMPUGNE D ORDERS PASSED BY CIT(A) QUA THE ASSESSMENT YEARS 2008-09 AND 2009-10 ON THE GROUNDS, INTER ALIA, THAT: 2 ITA NOS. 200 & 201/DEL/2013 I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD. CIT(A) IS BAD IN LAW AND NOT IN CONSONANCE WITH THE FACTS OF THE CASE. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW BY DELETING THE ADDITION OF RS. 9,54,83,227/- MADE ON ACCOUNT OF NON-DEDUCTION OF T DS U/S 194C(2) FOR FREIGHT PAYMENT. III. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) RELYING ON THE DECISION OF THE HONBLE ITAT ALLOWED THE RELIEF TO THE APPELLANT IGNORING THE FACTS REVENUE IS IN APPEAL AGAINST THE IMPUGNED ORDER OF THE HONBLE ITAT FOR THE A.Y. 2007-08. 2. SINCE IN BOTH THE AFORESAID APPEALS, IDENTICAL GROUNDS HAVE BEEN RAISED AND EVEN ISSUES INVOLVED ARE IDENTICAL, EXCE PT DIFFERENCE IN ADDITION TO THE INCOME MADE BY THE ASSESSING OFFICE R, WITH THE CONSENT OF THE AUTHORIZED REPRESENTATIVES OF THE PA RTIES, THE SAME ARE BEING TAKEN UP TOGETHER FOR DECISION TO AVOID THE R EPETITION OF DISCUSSION. 3. BRIEFLY STATED FACTS OF THE ARE: DURING THE SCR UTINY OF RETURN OF INCOME FILED BY THE ASSESSEE QUA THE ASSESSMENT YEA RS 2008-09 AND 2009-10, THE CASES WERE SUBJECTED TO SCRUTINY AND C ONSEQUENTLY NOTICES UNDER SECTION 143(1) AND 142(1) ALONG WITH QUESTIONNAIRES WERE SERVED UPON AND IN RESPONSE THERETO THE AUTHOR IZED REPRESENTATIVE OF THE ASSESSEE ATTENDED THE PROCEED INGS, FURNISHED THE DETAILS CALLED FOR, PRODUCED THE BOOKS OF ACCOUNTS AND VOUCHERS, WHICH WERE TEST CHECKED. 4. THE ASSESSEE IS INTO THE BUSINESS OF TRANSPORT A ND CARRYING ON BUSINESS AS SOLE PROPRIETOR IN THE NAME AND STYLE O F M/S. K.S. FREIGHT CARRIER (REGD.) AT 137/1, DARIYA, CHANDIGARH UT, EN TERED INTO AN 3 ITA NOS. 200 & 201/DEL/2013 AGREEMENT FOR TRANSPORTATION OF GOODS AND MATERIAL OF M/S. M/S JAI PRAKASH ASSOCIATES LTD. FROM THE SCRUTINY OF PROFIT AND LOSS ACCOUNT, IT IS NOTICED THAT THE ASSESSEE HAD PAID FREIGHT AT RS. 9,54,83,227/- TO VARIOUS TRUCK OWNERS WHOSE SERVICES HAVE BEEN USED FOR EARNING OF FREIGHT AND HAS CLAIMED TO HAVE RECEIVED FREIGHT AT RS. 9,77,20,354/-. THE ASSESSEE WAS CALLED UPON TO EXPLAIN/FURNISH THE PROOF OF DEDUCTION OF TDS AND TO SUBMIT THE COPY OF DAILY RE GISTER OF FREIGHT P ACCOUNT DETAILS OF GR NUMBERS, TRUCK NUMBER ETC. TH E ASSESSEE CLAIMED THAT SINCE THE PAYMENT IS MADE DIRECTLY TO TRUCK OWNERS AND DRIVERS BY THEIR PRINCIPAL OWNERS I.E. M/S JAI PRAK ASH ASSOCIATES ON BEHALF OF M/S K.S. CARRIER AFTER DUE DEDUCTION OF T DS, THERE WAS NO QUESTION OF DEDUCTION OF TDS BY THE ASSESSEE ON THE SAME PAYMENT. THE ASSESSEE BROUGHT ON RECORD THE COPY OF ORIGINAL GR FOR READY REFERENCE AND RECORD INFORMATION UNDER SECTION 133( 6). THE NECESSARY INFORMATION WAS CALLED UPON UNDER SECTION 133(6) FR OM M/S JAI PRAKASH ASSOCIATES FROM THEIR NOIDA OFFICE AND IN R ESPONSE THERETO M/S JAI PRAKASH ASSOCIATES HAS FURNISHED THE INFORM ATION AND IT IS NOTICED THAT ALL THE GRS HAVE BEEN CREDITED TO THE ACCOUNT OF M/S K.S. FREIGHT CARRIER. 5. FROM THE SCRUTINY OF DETAILS OF TRUCK NUMBERS, IT HAS ALSO COME ON RECORD THAT TRUCKS HAVE BEEN RAPIDLY USED FOR TH E PURPOSE OF FREIGHT AND IN MOST OF THE CASES THE FREIGHT PAYMENTS IS AG GREGATED TO MORE THAN RS. 50,000/- IN A COMPLETE YEAR. THE ASSESSEE WAS AGAIN CALLED UPON TO FURNISH EXPLANATION ON THE PAYMENT TO TRUCK OWNERS AND DRIVERS AMOUNTING TO RS. 6,54,83,227/- AND WHERE TH E TDS HAS BEEN DEDUCTED. THE ASSESSEE SUBMITTED THAT HE HAS NOT DE DUCTED THE TDS SINCE THE SAME HAD BEEN DEDUCTED BY M/S JAY PRAKASH ASSOCIATES. AS PER THE PROVISIONS CONTAINED UNDER SECTION 40(A)(IA ), IF THE ASSESSEE 4 ITA NOS. 200 & 201/DEL/2013 FAILS TO DEDUCT THE TDS AND PAYS THE FREIGHT WITHOU T DEDUCTING THE TDS, IT WILL NOT BE ALLOWED AS DEDUCTION ON ACCOUNT OF SUCH PAYMENTS AS FREIGHT, IF SUCH SUM EXCEEDS RS. 20,000/- OR PAY MENT EXCEEDS RS. 50,000/- IN AGGREGATE DURING THE FINANCIAL YEAR. 6. IT HAS COME ON RECORD THAT THE ASSESSEE FAILED TO DEDUCT THE TDS ON FREIGHT PAYMENT MADE BY HIM. THE AO BY INVOKING PROVISIONS CONTAINED UNDER SECTION 40(A)(IA) OF THE ACT, DISAL LOWED THE PAYMENT CLAIMED AS FREIGHT PAID WITHOUT DEDUCTION OF TDS KE EPING IN VIEW THE STATUS AND CAPACITY OF THE ASSESSEE VIS--VIS M/S J AI PRAKASH ASSOCIATES LTD., THEY BEING HIS PRINCIPAL AND CONSE QUENTLY ADDED AN AMOUNT OF RS. 9,54,83,227/- TO THE TOTAL INCOME IN ITS P/L ACCOUNT. 7. IT IS FURTHER NOTICED THAT THE CLAIM OF RS. 510 66/- HAS BEEN MADE ON ACCOUNT OF TELEPHONE EXPENSE. THE ASSESSEE CLAIM ED THAT EVEN THOSE TELEPHONES WHICH HAVE BEEN INSTALLED AT RESID ENCE ARE EXPEDIENT FOR BUSINESS PURPOSE AND FOR THE TELEPHONES WHICH H AVE BEEN INSTALLED AT OFFICE PREMISES ARE PURELY FOR BUSINESS PURPOSES . THE ASSESSING OFFICER HELD THAT IRRESPECTIVE OF THE FACTS THAT TH E TELEPHONES ARE INSTALLED AT RESIDENCE OR AT BUSINESS PREMISES THE POSSIBILITY OF PERSONAL USE OF TELEPHONES CANNOT BE RULED OUT. 8. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT( A) IN APPEAL WHO HAS PARTLY ALLOWED THE SAME. FEELING AGGRIEVED , THE REVENUE HAS COME UP BY FILING THE PRESENT APPEALS BEFORE TH E TRIBUNAL QUA ASSESSMENT YEARS 2008-09 AND 2009-10. 9. THE LEARNED DR CHALLENGING THE IMPUGNED ORDERS CONTENDED INTER ALIA THAT WHEN THE ENTIRE AMOUNT HAS BEEN CRE DITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, CIT(A) HAS ERRED IN DEL ETING THE ADDITION BY WRONGLY RELYING UPON THE DECISION OF HONBLE ITA T; THAT ASSESSEE IS UNDISPUTEDLY A CONTRACTOR AND THE ENTIRE PAYMENT HAS BEEN DIRECTLY 5 ITA NOS. 200 & 201/DEL/2013 MADE TO HIM; THAT FOR THE ASSESSMENT YEAR 2009-10, BOOKS OF ACCOUNT HAVE NOT BEEN PRODUCED BY THE ASSESSEE TO CONCEAL T HE FACTS FROM THE TAX AUTHORITIES AND THE ASSESSEE WAS UNDER LIABILIT Y TO DEDUCT THE TDS. 10. HOWEVER, ON THE OTHER HAND, THE LEARNED AR FOR THE ASSESSEE TO REPEL THE ARGUMENT ADDRESSED BY LEARNED DR CONTENDE D INTER ALIA THAT THE CIT(A) HAS PASSED VALID ORDERS BY RELYING UPON THE JUDGMENT OF THE HONBLE ITAT, IT BEING A COVERED CASE; THAT THE BOOKS OF ACCOUNT ALONG WITH THE VOUCHERS HAVE BEEN DULY PRODUCED BEF ORE THE AO FOR SCRUTINY; THAT THERE WAS NO PRIVITY OF CONTRACT BET WEEN THE ASSESSEE AND THE TRUCK OWNERS AND THE ASSESSEE WAS ONLY EARN ING 2% AS COMMISSION AND NO APPEAL HAS BEEN FILED BY THE REVE NUE AGAINST THE ORDER PASSED BY TRIBUNAL QUA A.Y. 2007-08 AND RELIE D UPON THE ORDER PASSED BY ITAT, DELHI BENCH A, NEW DELHI IN THE C ASE OF ITO VS. SH. ANOOP KHANDELWAL, IN ITA NO. 18/DEL/2013, DATED 17.10.2014; THE ORDER PASSED BY ITAT, DELHI BENCH D, NEW DELH I IN THE CASE ITO VS. MRS. KANAK SINGH, ITA NO. 5530/DEL/2012, DA TED 19.09.2014; THE ORDER PASSED BY ITAT, DELHI BENCH I N THE ASSESSEES OWN CASE PASSED FOR AY 2007-08, IN ITA NO. 5672/DEL /2010, DATED 30.03.2012; AND THE ORDER PASSED BY ITAT, VISAKHAPA TNAM BENCH, IN THE CASE OF MYTHRI TRANSPORT CORPORATION VS. ACIT, IN ITA NO. 183/VIZAG/2008 PASSED FOR AY 2005-06, DATED 9 TH JANUARY, 2009. 11. WE HAVE HEARD THE LEARNED AUTHORIZED REPRESENT ATIVES OF THE PARTIES, GONE THROUGH THE DOCUMENTS RELIED UPON, CA SE LAWS CITED IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THIS CA SE. 12. UNDISPUTED FACTS OF THIS CASE ARE, INTER ALIA, THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED AN AMOUN T OF RS. 9,77,20,354/- AFTER DEDUCTING TDS OF RS. 22,14,376/ - UNDER SECTION 194C(1) OF THE ACT; THAT THE ASSESSEE IS UNDISPUTED LY A CONTRACTOR WHO 6 ITA NOS. 200 & 201/DEL/2013 ENTERED INTO A CONTRACT WITH M/S JAY PRAKASH ASSOCI ATES TO TRANSPORT HIS GOODS AND MATERIALS; THAT THE ASSESSEE HAS HIRE D LORRIES FROM VARIOUS TRUCK OWNERS AS PER HIS REQUIREMENT TO PERF ORM THE CONTRACT; THAT THE ASSESSEE HAD DEBITED AN AMOUNT OF RS. 9,54 ,83,227/- ON ACCOUNT OF FREIGHT PAYMENTS TO VARIOUS TRUCK OWNERS WHOSE TRUCK THE ASSESSEE HAD UTILIZED FOR TRANSPORTING MATERIAL OF M/S JAI PRAKASH ASSOCIATES LTD. 13. CONSIDERING THE FACTS AND CIRCUMSTANCES, THE S UBMISSION MADE BY THE ASSESSEE AND INFORMATION RECEIVED FROM M/S J AY PRAKASH ASSOCIATES, THE ASSESSING OFFICER DISALLOWED THE FR EIGHT PAYMENTS CLAIMED BY THE APPELLANT IN THE PROFIT AND LOSS ACC OUNT AND ADDED THE SAME TO THE ASSESSEES INCOME UNDER SECTION 40(A)(I A) OF THE ACT ON THE GROUND THAT NO TAX HAS BEEN DEDUCTED AT SOURCE ON THE SAME. THE ASSESSING OFFICER HAS PRIMARILY MADE AN ADDITION TO THE ASSESSEES INCOME UNDER SECTION 40(A)(IA) OF THE ACT ON THE SO LE GROUND THAT SINCE THE ASSESSEE HAS AVAILED SERVICES OF THE TRUC K DRIVERS FROM THE TRANSPORTERS FOR CARRYING OUT THE WORK OF M/S JAY P RAKASH ASSOCIATES THERE EXISTS SUB-CONTRACTORSHIP AND THE ASSESSEE W AS REQUIRED TO DEDUCT THE TAX AT SOURCE. THE CIT(A) SET ASIDE THE ASSESSMENT ORDER BY RELYING UPON THE ORDER PASSED BY A CO-ORDINATE BENC H OF ITAT, DELHI IN ASSESSEES CASE IN ITA NO. 5672/DEL/2010 FOR AY 2007-08 AND THEREBY DELETED THE IDENTICAL DISALLOWANCES. THE CO ORDINATE BENCH OF ITAT, DELHI IN THE ASSESSEES CASE SUPRA, FOLLOWED THE ORDER PASSED BY ITAT, VISAKHAPATNAM BENCH IN THE CASE OF MYTHRI TRA NSPORT CORPORATION (SUPRA). 14. LEARNED DR VEHEMENTLY CONTENDED THAT THE ORDER PASSED BY THE HONBLE ITAT, DELHI, IN THE ASSESSEES OWN CASE BY RELYING ON THE DECISION OF HONBLE ITAT, VISAKHAPATNAM IN THE CASE OF MYTHRI 7 ITA NOS. 200 & 201/DEL/2013 TRANSPORT CORPORATION (SUPRA) IS NOT APPLICABLE BEI NG ON DIFFERENCE FOOTING, ON THE FOLLOWING GROUNDS: I. APPELLANT CLAIMED TWO TYPES OF INCOME, ONE SHOWN AS GROSS RECEIPTS ON THE USE OF OWN TRUCKS AND THE OTHER COM MISSION INCOME ON THE USE OF OTHER TRUCKS WHICH IS NOT THE CASE OF THE APPELLANT. II. APPELLANT CLAIMS THAT ALL THE WORK IN DOME BY HIRED TRUCK OWNERS THEMSELVES AND HE HAS ONLY ARRANGED THE WORK AND EARNED COMMISSION INCOME WHICH IS NOT THE CASE OF T HE APPELLANT. 15. NOW, THE SOLE QUESTION ARISES FOR DETERMINATIO N IN THIS CASE IS AS TO WHETHER LORRY/VEHICLES HIRED BY THE ASSESSEE TO EXECUTE THE TRANSPORT CONTRACT ENTERED INTO BETWEEN THE ASSESSE E AND M/S JAY PRAKASH ASSOCIATES, CAN BE TREATED AS SUB-CONTRACT REQUIRING THE ASSESSEE TO DEDUCT TAX FROM THE PAYMENT MADE FOR SU CH VEHICLE UNDER SECTION 194C(2) OF THE ACT. 16. IDENTICAL ISSUE HAS COME UP BEFORE THE COORDINA TE BENCH OF ITAT, VISAKHAPATNAM IN THE IDENTICAL FACTS AND CIRC UMSTANCES IN THE CASE OF MYTHRI TRANSPORT CORPORATION (SUPRA) AND HA S BEEN DECIDED AGAINST THE REVENUE BY MAKING FOLLOWING OBSERVATION S: 8.5 IT IS NOT ESTABLISHED BY THE REVENUE THAT OTH ER LORRY OWNERS, FROM WHOM THE VEHICLES WERE HIRED, HAVE ALS O BEEN FASTENED WITH ANY OF THE ABOVE SAID LIABILITIES. IN A SUB-CONTRACT, A PRUDENT CONTRACTOR WOULD INCLUDE ALL THE LIABILITY CLAUSES IN THE AGREEMENT ENTERED INTO BY HIM WITH THE SUBCONTRACTO R. THE ASSESSEE HAS ALSO CLAIMED BEFORE THE TAX AUTHORITIE S THAT THE RESPONSIBILITY IN THE WHOLE PROCESS LIES WITH IT ON LY. THOUGH THE PASSING OF LIABILITY IS NOT THE ONLY CRITERIA TO DE CIDE ABOUT THE EXISTENCE OF SUB-CONTRACT, YET THIS CONTENTION OF T HE ASSESSEE READ WITH THE LIABILITY CLAUSES OF THE WORK ORDER CITED ABOVE, SUPPORTS ITS SUBMISSION THAT THE INDIVIDUAL VEHICLE OWNERS A RE SIMPLE HIRERS OF THE VEHICLES. 8 ITA NOS. 200 & 201/DEL/2013 17. FOLLOWING THE ORDER PASSED BY THE ITAT, VISAKHA PATNAM IN MYTHRI TRANSPORT CORPORATION (SUPRA), THE HONBLE I TAT, DELHI BENCH IN THE ASSESSEES OWN CASE IN ITA 5672/DEL/20 10 FOR AY 2007- 08, HELD THAT THE REVENUE FAILED TO PROVE ANY SUBCO NTRACT BETWEEN THE ASSESSEE AND THE TRUCK OWNERS FOR PART PERFORMANCE AND ITS WORK WITH JOINT LIABILITY AND AS SUCH, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT. THE LD. DR CONTENDED THAT SINCE THE ORDER PASSED BY ITAT, DELH I IN THE ASSESSEES OWN CASE FOR AY 2007-08 (SUPRA) IS ALREADY UNDER CH ALLENGE BEFORE THE HONBLE HIGH COURT, THE ASSESSING OFFICER HAS R IGHTLY PASSED THE ASSESSMENT ORDER IN THIS CASE. HOWEVER, THE LEARNED DR HAS FAILED TO BRING ON RECORD ANY SUCH ORDER PASSED BY THE HONBL E HIGH COURT STAYING THE OPERATION OF ORDER DATED 30.03.2012 PAS SED BY A COORDINATE BENCH OF ITAT, DELHI IN THE ASSESSEES O WN CASE OR SETTING ASIDE THE ORDERS RELIED UPON BY THE ASSESSEE. 18. NOW, ADVERTING TO THE CASE AT HAND, WE ARE OF THE CONSIDERED VIEW, INTER ALIA, THAT THE CASE OF THE ASSESSEE IS COVERED BY THE ORDER PASSED BY THE HONBLE ITAT, VISAKHAPATNAM BENCH, IN THE CASE OF MYTHRI TRANSPORT CORPORATION (SUPRA) AND BY HONBLE ITAT, DELHI BENCH, IN THE ASSESSEE OWN CASE PASSED FOR AY 2007- 08; THAT NO DOUBT, UNDER THE INDIAN CONTRACT ACT, THERE CAN BE AN ORAL CONTRACT BETWEEN THE PARTIES, BUT THE ASSESSING OFFICER IN T HIS CASE HAS NOT BROUGHT ON RECORD AN IOTA OF EVIDENCE TO PROVE ANY SUCH CONTRACT ENTERED INTO BETWEEN ASSESSEE AND THE ALLEGED TRUCK OWNERS FOR PART PERFORMANCE OF ITS WORK WITH JOINT LIABILITY; THAT IT IS PROVED ON RECORD THAT THE ASSESSEE WAS SOLELY RESPONSIBLE FOR ALL TH E ACTS AND DEFAULT COMMITTED BY HIM IN DUE PERFORMANCE OF ITS CONTRACT ENTERED INTO WITH M/S JAY PRAKASH ASSOCIATES; THAT THE ASSESSING OFFI CER HAS ALSO NOT 9 ITA NOS. 200 & 201/DEL/2013 BROUGHT ON RECORD ANY EVIDENCE THAT THE ASSESSEE HA S EARNED ANOTHER INCOME EXCEPT THE COMMISSION WHICH HAS NOT OTHERWIS E BEEN DISPUTED BY THE ASSESSING OFFICER; THAT NO DOUBT, IN THE ASS ESSMENT ORDER FOR THE YEAR 2009-10, THE ASSESSING OFFICER HAS POINTED OUT IN PARA 2 OF THE ASSESSMENT ORDER THAT UNDER SECTION 133(6) OF T HE ACT, A LETTER DATED 25.11.2011 WAS ISSUED TO M/S JAI PRAKASH ASSO CIATES TO FURNISH THE COPY OF ACCOUNT OF THE ASSESSEE FOR PRODUCING T HEIR BOOKS OF ACCOUNTS BY 07.12.2011 POSITIVELY BUT NO REPLY WAS FILED BY HIM, HOWEVER, FROM THE ASSESSMENT ORDER DATED 28.12.2011 FOR AY 2009- 10, IT HAS COME ON RECORD THAT THE ASSESSING OFFICE R HAS HASTILY PASSED THE ASSESSMENT ORDER WITHOUT APPLYING COERCIVE METH OD IN ORDER TO OBTAIN THE REQUISITE INFORMATION; THAT ON THE OTHER HAND, THE REQUISITE INFORMATION CALLED UPON BY THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT FOR THE YEAR 2008-09, HAS BEEN FILED BY M/S JAI PRAKASH ASSOCIATES AS HAS BEEN COMPREHENSIVELY DISCUSSED IN PARA 3 OF THE ASSESSMENT ORDER; THAT WHEN THE TAX HAS BEEN DULY D EDUCTED AT SOURCE BY M/S JAY PRAKASH ASSOCIATES AND PROVIDED RECEIPT OF FREIGHT, THE QUESTION OF DEDUCTION OF TAX AT SOURCE BY THE ASSES SEE DOES NOT ARISE; THAT SINCE THE ASSESSEES CLAIM ON THE SAME ISSUE H AS ALREADY BEEN ACCEPTED IN THE ASSESSMENT YEARS 2004-05, 2005-06 A ND 2006-07, THE ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION WHO WAS REQUIRED TO FOLLOW THE RULE OF CONSISTENCY, AS HELD BY HONB LE APEX COURT IN THE CASE OF RADHA SOAMI SATSANG VS. CIT(A), 193 ITR 321 ; THAT FROM THE CONFIRMATION MADE BY M/S JAI PRAKASH ASSOC IATES AND THE RECORD COLLECTED BY THE AO, IT IS PROVED THAT THE A SSESSEE HAS RECEIVED PAYMENT AFTER DEDUCTION OF TAX AT THE HANDS OF M/S JAI PRAKASH ASSOCIATES AGAIN DEDUCTING THE TAX AT SOURCE WOULD HAVE AMOUNTED TO DOUBLE TAXATION; THAT THE ASSESSING OFFICER HAS ALS O NOT DISPUTED THE 10 ITA NOS. 200 & 201/DEL/2013 FACT THAT THE ASSESSEE ONLY GAINED ADVANTAGE OF A S UM OF RS.22,37,127/- PAID TO HIM AFTER TAX DEDUCTION AT S OURCE BY THE PAYEE; THAT THE COORDINATE BENCH IN THE ASSESSEES OWN CAS E IN ITA NO. 5672/DEL/2010 FOR AY 2007-08, HAS CATEGORICALLY HE LD THAT THE CARRIERS/TRANSPORTERS ENGAGED BY THE ASSESSEE TO CA RRY OUT THE TRANSPORTATION WORK OF M/S JAY PRAKASH ASSOCIATES ARE NOT SUB- CONTRACTORS BY APPLYING THE RATIO OF THE ORDER PASS ED BY ITAT, VISAKHAPATNAM BENCH, IN THE CASE OF MYTHRI TRANSPORT CORPORATION VS. ACIT, 124 TTJ 970 ; THAT HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. HARDARSHAN SINGH, 350 ITR 427 , DECIDED THE IDENTICAL ISSUES. THE OPERATIVE PARA OF THE JUDGMEN T IS AS UNDER: DEDUCTION OF TAX AT SOURCE-LORRY BOOKING BUSINESS-ASSESSEE COLLECTING FREIGHT CHARGES FROM CLIENTS WHO INTENDED TO TRANSPORT THEIR GOODS THROUGH SEPARATE TRANSPORTERS-ASSESSEE PAYING TO TRANSPORTERS ENTIRE AMOUNT COLLECTED FROM CLIENTS AFTER DEDUCTING HIS COMMISSION-NO PRIVITY OF CONTRACT OF CARRIAGE OF GOODS BETWEEN ASSESSEE AND HIS CLIENTS- ASSESSEE NOT A PERSON RESPONSIBLE BUT ONLY A FACILITATOR-TAX NOT DEDUCTIBLE AT SOURCE- INCOME-TAXACT, 1961, S. 194C. 19. THE LEARNED DR HAS FAILED TO PUT ON RECORD THE DISTINGUISHABLE FACTS OF THE CASE AT HAND TO IGNORE THE ORDER PASSE D BY THE COORDINATE BENCH OF ITAT, DELHI IN ITA NO. 5672/DEL/2010, FOR AY IN THE ASSESEES OWN CASE. IN VIEW OF WHAT HAS BEEN DISCUS SED IN THE PRECEDING PARAS, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NOT ILLEGALITY OR PERVERSITY IN THE FINDINGS THAT DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 40(A)(IA) OF THE AC T ON ACCOUNT OF DEDUCTION OF TDS UNDER SECTION 194C(2) ARE NOT JUST IFIED RETURNED 11 ITA NOS. 200 & 201/DEL/2013 BY THE LD. CIT(A). RESULTANTLY, BOTH THE APPEALS UN DER CONSIDERATION ARE HEREBY DISMISSED. 20. THE DECISION IS PRONOUNCED IN THE OPEN COURT ON 04 TH DECEMBER, 2015. SD./- SD./- (J.S. REDDY) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04 TH DECEMBER, 2015. RK/- COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 24/11 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 26,30,1/12 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 4/12/15 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 4/12 SR. PS/PS 7 FILE SENT TO BENCH CLERK 7/12 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER