ITO 24(2)4, MUMBAI V. USHA SHARMA, MUMBAI

ITA 2405/MUM/2013

• Counselvise Citation: 240519914 RSA 2013
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 28-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVINDER SANDHU
• Keywords: Competent authority
• Section: 194C

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - F BENCH. . , !'# !$%&' , %! () BEFORE S/SH.D.MANMOHAN, VICE-PRES IDENT & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.2405/MUM/2013, ! ! ! ! * * * * / ASSESSMENT YEAR-2008-09 I T O 24(2)(4),R.NO.605,C-13, PRATYAKASHKAR BHAVAN, BKC BANDRA(EAST)MUMBAI-51 V/S. SMT.USHA SHARMA,D 203 VEENANAGAR,S V ROAD MALAD(WEST),MUMBAI-64 PAN:ALRPS7681M ( !+, / APPELLANT) ( -.+, / RESPONDENT) !$) / 0 % / REVENUE BY : SHRI RAVINDER SANDHU !12 !12 !12 !12 0 0 0 0 % %% % / ASSESSEE BY : NONE ! ! ! ! / // / 2! 2! 2! 2! / DATE OF HEARING : 01.07-2014 3* ! / 2! / DATE OF PRONOUNCEMENT : 01.07-2014 , 1961 / // / !! !! !! !! 254 )1( % %% % &242 &242 &242 &242 (%5 (%5 (%5 (%5 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM %! %! %! %! () () () () !$%&' !$%&' !$%&' !$%&' % %% % ! ! ! ! : CHALLENGING THE ORDERS DATED 18.01.2012 OF THE CIT( A)-29, ASSESSING OFFICER(AO) HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1)ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO U/S. 40(A)(IA) TO THE T UNE OF RS 13,87,603/- ON ACCOUNT OF TRANSPORT CHARGES,DESPITE THE ASSESSEE FAILING TO DEDUCT TDS ON THE SAID PAYMENT EVEN THOUGH EACH OF SUCH PAYMENT EXCEEDS RS 50,000/- 2)THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) HE SET ASIDE AND MATTER MAY BE DECIDED ACCORDING TO LAW. THE APPELLANT CRAVES LEAVE TO AME ND OR ALTER ANY GROUND OR ADD NEW GROUND WHICH MAY BE NECESSARY. 2. ASSESSEE,AN INDIVIDUAL,ENGAGED IN THE BUSINESS OF T RANSPORTATION,FILED HER RETURN OF INCOME ON 25.09.2008 DECLARING TOTAL INCOME OF RS.5,63,560/-. ASSESSING OFFICER(AO) FINALISED THE ASSESSME -NT U/S.143(3) OF THE ACT,ON 28.12.2010,DETERMINING THE TOTAL INCOME AT RS.19,65,110/-. EFFECTIVE GROUND OF APPEAL PERTAINS TO DELETING THE ADDITION MADE BY THE AO U/S.40(A)(IA) OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE HAD NOT DEDUCTED TAX WHILE MAKING PAYMENT TO 13 PARTIES UNDER THE HEAD TRANSPO RTATION CHARGES.AO DIRECTED THE ASSESSEE TO FILE EXPLANATION IN THIS REGARD.AFTER CONSIDERING T HE REPLY OF THE ASSESSEE,HE HELD THAT SHE HAD OBTAINED FORM NO.15 I FORM THE SUB-CONTRACTORS,THAT THE ASSESSEE HAD FAILED TO SUBMIT PRESCRIBED INFORMATION TO COMPETENT AUTHORITY,THAT SHE HAD NOT COMPLIED WITH THE PROVISIONS OF RULE 29D OF THE INCOME TAX RULES,1962,THAT NON FURNISHING OF IN FORMATION AS PER THE SAID RULE WAS NOTHING BUT NON DEDUCTION OF TDS. 2.1. AGAINST THE ORDER OF THE AO ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPEAL AUTHORITY (FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSE SSEE AND THE ASSESSMENT ORDER HE HELD THAT THE AO HAD ADDED RS.13,87603/- IN RESPECT OF 13 PAR TIES UNDER THE IMPRESSION THAT THE PAYMENT TO TRANSPORT CHARGES HAD EXCEEDED RS.50,000/- DURIN G THE YEAR,THAT HE WAS FACTUALLY INCORRECT, THAT IN RESPECT OF FOUR PARTIES VIZ. JODHPUR BOMBAY FREIGHT CARRIER (RS.12,000/-), PRAVIN ROAD LINES (RS.15,000), POOJA TRANSPORT (RS.16,000/-) AN D SHREE PRAVIN CARGO MOVERS (RS.15,000/-) THE PAYMENT MADE HAD NOT EXCEEDED THE 50,000/- LIMI T THAT THE PROVISIONS OF SECTION 194C IS NOT ATTRACTED,THAT THE AO COULD NOT INVOKE PROVISIONS O F SECTION 40(A)(IA) IN RESPECT OF THESE PARTIES.HENCE, ADDITION TO THE EXTENT OF RS.58,000/ - WAS DELETED BY HIM.HE FURTHER HELD THAT THE CONTENTION OF THE ASSESSEE THAT THE ENTIRE SUM TOWA RDS TRANSPORT HIRING CHARGES WAS PAID DURING THE YEAR ITSELF AND NOTHING REMAINED PAYABLE AS ON 31.03.2008 WAS FACTUALLY CORRECT. HE TOOK NOTICE OF THE FACT THAT THE ASSESSEE HAD FI LED FORM NO.15-I IN 9 CASES.HE REFERRED TO THE ASSESSMENT ORDER IN THIS REGARD AND HELD THAT THE O NLY REASON ADDUCED BY THE AO FOR THE DISALLOWANCE WAS THAT FORM 15-I COULD NOT BE FILED BEFORE THE COMPETENT AUTHORITY,THAT FILING OF FORM NO.15-I BEFORE THE COMPETENT AUTHORITY WAS ONL Y A TECHNICAL FORMALITY,THAT THE FORMS WERE AVAILABLE TO THE AO,THAT HE SHOULD HAVE CONSIDERED THE FORMS.HE RELIED UPON THE MATTER OF SHAYAM SUNER KAILASH CHAND (60DTR270)DELIVERED BY T HE JAIPUR TRIBUNAL AND ALLOWED THE APPEAL FILED BY THE AO. 2.2. BEFORE US,DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTE D THE ORDER OF THE AO.NO ONE APPEARED ON BEHALF OF THE ASSESSEE. 2.3. WE HAVE PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAD MADE PAYMENT OF RS.13.87 LAKHS ON ACCOUNT OF TRANSPORT CHARGES TO 1 3 PARTIES DURING THE YEAR UNDER APPPEAL,THAT THE AO HAD INVOKED THE PROVISIONS OF SECTION 194C A ND HELD THAT THERE WAS VIOLATION OF THE PROVISION OF 40(A)(IA) OF THE ACT AS THE SAID PAYME NT HAD BEEN MADE WITHOUT DEDUCTION OF TDS. WE FURTHER FIND THAT THE ONLY REASON FOR DISALLOWIN G THE EXPENDITURE WAS THAT THE ASSESSEE HAD FAILED TO DEPOSIT THE FORM NO.15-I BEFORE THE A PAR TICULAR AUTHORITY.IN OUR OPINION NON- SUBMISSIONS OF THE FORM 15-I;THE EXISTENCE OF WHICH IS NOT DISPUTED BY THE AO HIMSELF;BEFORE AN AUTHORITY CANNOT BE BASIS FOR FASTENING TAX LIABILI TY TO AN ASSESSEE.FOR NOT COMPLYING WITH THE PROVISIONS OF RULE 29(1)(4) OF INCOME TAX RULES,196 2 APPROPRIATE ACTION CAN BE TAKEN BUT FOR THAT DEFAULT PROVISIONS OF SECTION 40(A)(IA)CANNOT BE INVOKED.IT IS NOT A CASE THAT TAX WAS NOT DEDUCTED AT ALL.DEDUCTION OF TAX HAS NOT BEEN DENIE D BY THE AO.IN FOUR CASES, OUT OF THE 13 CASES,PAYMENT MADE DURING THE YEAR WAS LESS THAN TH E PRESCRIBED LIMIT.BESIDES IN OUR OPINION NON FURNISHING OF CERTAIN FORMS IS A TECHNICAL REQU IREMENT AND IT CANNOT BE EQUATED WITH NON DEDUCTION OF TAX,AS HELD BY THE AO.CONSIDERING THE ABOVE FACTS WE ARE OF THE OPINION THAT THE ORDER OF THE FAA DOES NOT SUFFER FROM ANY LEGAL OR FACTUAL INFIRMITY. THEREFORE, CONFIRMING HIS ORDER,WE DECIDE EFFECTIVE GROUND OF APPEAL AGAINST THE AO. AS A RESULT,APPEAL F ILED BY THE AO STANDS DISMISSED. 27 !12 ! 8!! (!9 / 4 ):2 / $!2 ; . ORDER PRONOUNCED IN THE OPEN COURT ON 01 ST ,JULY, 2014 . (%5 / 3* ! % &!! < =(! 01 $! , 201 4 / 4 > ( . / D.MANMOHAN) ( !$%&' !$%&' !$%&' !$%&' / RAJENDRA) !'# / VICE PRESIDENT %! %! %! %! () () () () /ACCOUNTANT MEMBER / MUMBAI, =(! /DATE:01.07.2014. SK (%5 (%5 (%5 (%5 / // / -2? -2? -2? -2? @%?*2 @%?*2 @%?*2 @%?*2 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / !+, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT(A)/ A B , 4. THE CONCERNED CIT / A B 5. DR F BENCH, ITAT, MUMBAI / ?C!4 -2 , . . &!! . 6. GUARD FILE/ 4! ! .!?2 .!?2 .!?2 .!?2 -2 -2-2 -2 //TRUE COPY// (%5!! / BY ORDER, / ! $! DY./ASST. REGISTRAR , /ITAT, MUMBAI