M/s Sri Shabareesh Agencies , Shivamogga V. The Assistant Commissioner of Income Tax Circle-1 , Shivamogga

ITA 2273/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1421 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SUKUMAR
• Assessee Lawyers: PRATIBHA
• Keywords: Condonation of delay
• Section: 234B; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 22 73 /BANG/201 8 ASSESSMENT YEAR : 20 09 - 10 M/S. SRI SHABAREESH AGENCIES, GOCS BUILDING, BALARAJ URS ROAD, SHIVAMOGGA 577 201. PAN: AALFS7891N VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, SHIVAMOGGA. APPELLANT RESPONDENT APPELLANT BY : SMT. PRATIBHA, ADVOCATE RESPONDENT BY : SHRI N. SUKUMAR, ADDL. CIT (DR) DATE OF HEARING : 27. 0 8 .2018 DATE OF PRONOUNCEMENT : 07 . 0 9 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME I S DIRECTED AGAINST THE ORDER OF LD. CIT (A), DAVANGERE, DATED 02.02.2018 FOR ASS ESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE LEARNED CIT(A) ERRED IN PASSING THE ORDER IN THE MANNER WHICH HE DID. 2. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE APPELLANT ITSELF HAS EXECUTED WHOLE OF THE CONTRACT INCLUDING ALL RISK FACTORS FOR TRANSPORTATION BY LORRIES FROM OTHER LORRY OWNERS. HENCE PAYMENT MADE FOR HIRING OF VEHICLES DOES NOT FALL UNDER THE CATEGORY OF PAYMENTS TOWARDS SUB-CONTRACTOR HENCE THE APPELLANT WAS NOT LIABLE TO DEDUCT TAX AT SOURCE AS PER THE PROVISION OF SEC . 194C. 3. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH ERE IS NO FREIGHT CHARGES WERE PAID TO ANY LORRY OWNERS IN PURSUANCE OF CONTRACT FOR SPECIFIC PERIOD, QUANTITY OR PRICE. HENCE THE APPEL LANT WAS NOT LIABLE TO DEDUCT TAX U/S 194C FOR THE PAYMENT MADE TO LORR Y OWNERS, HENCE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S 40(A )(1A) OF THE ACT FOR FAILURE OF THE APPELLANT TO DEDUCT TDS U/S 194C OF THE ACT TO LORRY ITA NO. 2273/BANG/2018 PAGE 2 OF 4 OWNER WAS UNWARRANTED. 4. THE LEARNED CIT (A) ERRED IN HOLDING THAT PAYMEN T IS MORE THAN RS. 50,000/- IN A YEAR TO THE OWNER OF EACH LORRY WITHO UT APPRECIATING THAT EACH PAYMENT IS NOT EXCEEDED RS. 20,000/- IN EACH A SSIGNMENT OF TRUCK HIRED CHARGES AND AGGREGATE OF TOTAL PAYMENT IN EXC ESS OF RS. 50,000/- DOES NOT ARISE AS THERE IS NO CONTRACT OR AGREEMENT . HENCE SEC. 194C IS NOT APPLICABLE. 5. THE LEARNED CIT (A) ERRED IN LEVYING THE INTERES T U/S 234B OF THE ACT. 6. WITHOUT PREJUDICE, THE ADDITION IS EXCESSIVE, AR BITRARY AND UNREASONABLE AND OUGHT O HAVE DELETED. 7. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING OF THE APPEAL THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 3. THIS APPEAL IS FILED BY THE ASSESSEE AFTER A DEL AY OF 79 DAYS. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY A LONG WITH AN AFFIDAVIT IN WHICH IT IS STATED THAT THE ASSESSEE HAS SHIFTED ITS BUSI NESS PREMISES TO A NEW ADDRESS BUT THE ORDER OF CIT (A) WAS SENT BY HIM TO THE OLD ADDRESS WHERE THE OFFICE BOY OF THE ASSESSEE HAS RECEIVED THE SAME BU T MISPLACED THIS ORDER AND BECAUSE OF THIS REASON, THE ASSESSEE COULD NOT FILE THE APPEAL IN TIME. LATER ON WHEN THE ORDER OF CIT (A) WAS LOCATED, THE APPEAL W AS FILED BY ASSESSEE BEFORE THE TRIBUNAL. HE SUBMITTED THAT UNDER THESE FACTS, THE DELAY OF 79 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL SHOULD BE CONDONED. CONSIDERING THESE FACTS I CONDONE THE DELAY AND ADMIT THE APPEAL OF THE ASSES SEE. 4. IT WAS POINTED OUT BY THE BENCH THAT THE ORDER O F CIT (A) IS EX-PARTE QUA THE ASSESSEE. THE BENCH WANTED TO KNOW AS TO ON HOW MA NY OCCASIONS, THERE WAS NON-COMPLIANCE BEFORE CIT (A). IN REPLY, IT WA S SUBMITTED BY LD. AR OF ASSESSEE THAT AS NOTED BY CIT (A) IN PARA 3 OF HIS ORDER, THE FIRST DATE OF HEARING WAS FIXED ON 20.03.2017 AND THE SECOND DATE WAS FIXED ON 28.04.2017. SHE FURTHER POINTED OUT THAT THIS IS ALSO NOTED IN THE SAME PARA OF THE ORDER OF CIT (A) THAT ON TWO OCCASIONS I.E. ON 10.01.2017 AN D 28.06.2017, SHRI MALLAHARAO K APPEARED BUT NO POWER OF ATTORNEY WAS FILED BUT ADJOURNMENT WAS SOUGHT BY HIM AND ON HIS REQUEST, THE HEARING WAS A DJOURNED TO 27.02.2017 ITA NO. 2273/BANG/2018 PAGE 3 OF 4 AND 20.03.2017 BUT THERE WAS NO COMPLIANCE. BUT TH IS IS ALSO NOTED BY CIT (A) THAT ON 20.03.2017, A LETTER WAS RECEIVED FROM SMT. SHEETAL, ADVOCATE WHO HAS SOUGHT FOR ADJOURNMENT AS SHE WAS NOT IN A POSITION TO ATTEND THE HEARING DUE TO PERSONAL INCONVENIENCE. SHE SUBMITTED THAT AGAI N THE MATTER WAS ADJOURNED TO 28.04.2017 BUT THERE WAS NO COMPLIANCE AND THERE AFTER, THE HEARING WAS FIXED ON 28.06.2017 AND ON THAT DATE, SHRI MALLAHAR AO APPEARED AND SOUGHT MORE TIME BUT NO POWER OF ATTORNEY WAS FILED ON THI S OCCASION ALSO. THEREAFTER THE HEARING WAS ADJOURNED TO 04.07.2017 AND ON THIS DATE, SMT. SHEETAL, ADVOCATE APPEARED AND FILED CASE LAWS IN SUPPORT OF HER CLAIM BUT NO POWER OF ATTORNEY WAS FILED AT THIS JUNCTURE ALSO. THEREAFT ER IT IS NOTED BY CIT (A) THAT SMT. SHEETAL WAS ASKED TO FILE SPECIFIC DETAILS OF TRANSACTIONS AND IN RESPONSE TO THIS, SUBMISSIONS WERE RECEIVED BY POST WHICH HA S POWER OF ATTORNEY IN THE NAME OF SMT. SHEETAL BORKAR AND A COPY OF CLEARING AND FORWARDING AGENCY AGREEMENT AND A COPY OF TRANSPORTATION CHARGE PAID BY SRI SHABAREESH AGENCIES TO ACC. SHE SUBMITTED THAT ALTHOUGH PART COMPLIANCE WAS MADE BY THE ASSESSEE BEFORE CIT (A) BUT IN THE INTEREST OF JUSTICE, IF ONE MORE OPPORTUNITY IS PROVIDED BY RESTORING THE MATTER BAC K TO THE FILE OF CIT (A) FOR FRESH DECISION, THE ASSESSEE WILL MAKE PROPER AND C OMPLETE COMPLIANCE. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT ALTHOUGH ON SEVERAL DATES, THERE WERE NO COMPLIANCE AND ON SEVERAL DATES, ADJO URNMENT REQUEST WAS MADE AND ON LAST SUCH OCCASION I.E. ON 04.07.2017, SMT. SHEETAL, ADVOCATE APPEARED AND FILED CASE LAWS IN SUPPORT OF ASSESSEE S CLAIM AND LATER ON, MORE DETAILS WERE RECEIVED BY POST ALONG WITH POWER OF A TTORNEY IN THE NAME OF SMT. SHEETAL BORKAR AND ALSO COPY OF CLEARING AND FORWAR DING AGENCY AGREEMENT AND COPY OF TRANSPORTATION CHARGE PAID BY SRI SHABA REESH AGENCIES TO ACC. THESE FACTS HAS TO BE SEEN IN THE LIGHT OF THIS FAC T THAT THERE WAS CHANGE IN THE ADDRESS OF ASSESSEE AND THIS IS THE SUBMISSION OF A SSESSEE THAT BECAUSE OF THIS REASON, PROPER COMPLIANCE COULD NOT BE MADE BE FORE CIT(A). CONSIDERING ALL THESE FACTS AND IN THE INTEREST OF JUSTICE, I S ET ASIDE THE ORDER OF CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR FRESH DECIS ION WITH THE DIRECTION THAT THE ASSESSEE SHOULD MAKE PROPER COMPLIANCE AND BRING AL L EVIDENCES ON RECORD WHICH IS ASKED FOR BY CIT (A) AND THEREAFTER, THE C IT (A) SHOULD PASS NECESSARY ITA NO. 2273/BANG/2018 PAGE 4 OF 4 ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNI TY OF BEING HEARD TO BOTH SIDES. 6. IN VIEW OF THIS DECISION, NO ADJUDICATION IS CAL LED FOR ON MERIT AT THE PRESENT STAGE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DA TE MENTIONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 07 TH SEPTEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.