The ITO, Ward-9(4), Ahmedabad V. Shri Thakkar Upendra H.,HUF, Ahmedabad

ITA 2457/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94740 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K S PANDYA
• Assessee Lawyers: M K PATEL
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER) ITA NO: 2457/AHD/2011 (ASSESSMENT YEAR: 2008-09) INCOME-TAX OFFICER, WARD ((4), AHMEDABAD V/S SHRI THAKKAR UPENDRA H. HUF PROPRITER OF SHIVAM TRANSPORT, 202, SHUBH COMPLEX, OPP-FAIRDEAL HOUSE, NEAR SWASTIK CHAR RASTA, NAVRANGPURA, AHMEDABAD-380009 (APPELLANT) (RESPONDENT) PAN: AAAHT 1704J APPELLANT BY : SHRI B.K.S. PANDYA, CIT/DR RESPONDENT BY : SHRI M.K. PATEL ( )/ ORDER DATE OF HEARING : 01-12-2015 DATE OF PRONOUNCEMENT : 04-12-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XV, AHMEDABAD DATED 27.07.2011 FOR A.Y. 2008-09. ITA NO 2457/ AHD/2011 . A.Y. 2008-09 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN HUF AND PROPRIETOR OF M/S. SHIVAM TR ANSPORT WHICH IS STATED TO BE ENGAGED AS TRANSPORT CONTRACTOR. ASSESSEE ELE CTRONICALLY FILED ITS RETURN OF INCOME FOR A.Y. 2008-09 ON 30.09.2008 DECLARING TOTAL INCOME AT RS.3,91,690/-. THE CASE WAS SELECTED FOR SCRUTINY A ND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORD ER DATED 19.11.2010 AND THE TOTAL INCOME WAS DETERMINED AT RS. 6,41,72, 442/-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO VIDE ORDER DATED 27.07.2011 DELETED THE ADDITION BY HOLDING AS UNDER. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFOR E US AND HAS RAISED THE FOLLOWING EFFECTIVE GROUND:- 1. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV, AH MEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.6,37,80 ,752/- MADE BY THE ASSESSING OFFICER U/S.40(A)(IA) OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O NO TICED THAT DURING THE YEAR, ASSESSEE HAD MADE FREIGHT PAYMENT TO VARIOUS SUB-CONTRACTORS AND TRUCK OWNERS AMOUNTING TO RS. 6,37,80,752/- WHICH A CCORDING TO THE A.O INCLUDED PAYMENT IN EXCESS OF RS. 20,000/- FOR A SI NGLE TRIP OR EXCEEDING AGGREGATE AMOUNT OF RS. 50,000/- DURING THE YEAR, B UT IT HAD NOT DEDUCTED TDS U/S. 194C THOUGH AS PER THE A.O, ASSESSEE WAS L IABLE TO DEDUCT TDS. THE SUBMISSION OF THE ASSESSEE THAT OF THE TOTAL FR EIGHT PAYMENT, PAYMENT OF RS. 2,29,08,202/- WERE THE TRUCK OWNERS WHERE THE I NDIVIDUAL PAYMENTS DID NOT EXCEED THE LIMIT PRESCRIBED U/S 194C AND FOR T HE BALANCE PAYMENTS OF RS. 4,08,72,550/- THAT SINCE ASSESSEE HAD RECEIVED FORM-15I IT WAS NOT LIABLE TO DEDUCT TDS, WAS NOT FOUND ACCEPTABLE TO THE A.O. HE WAS OF THE VIEW ITA NO 2457/ AHD/2011 . A.Y. 2008-09 3 THAT PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WER E APPLICABLE SINCE ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF SE CTION 194C OF THE ACT. HE ACCORDINGLY DISALLOWED THE AGGREGATE SUM OF RS. 6,37,80,752/- U/S. 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ORDER OF A.O ., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF ASSESEE, THE REMAND REPORT OF A.O AND ASSESSEES SUBMISSION TO A.OS REMAND REPORT, DELETED THE ADDITION. THE RELEVANT OBSERVAT IONS OF LD. CIT(A) ARE AS UNDER:- 7. DURING THE COURSE OF APPELLATE PROCEEDINGS IT WA S ARGUED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS COPY OF FORM 15-J ALONG WITH ITS ANNEXURES (FORM NO. 15-I) SUBMITTED TO THE DEPARTMENT BY THE ASSESSEE WAS SUB MITTED TO THE AO. IT WAS ARGUED THAT COPIES OF SUCH FORM 15 I WERE GIVEN TO THE AO AND S UBMITTED TO THIS OFFICE ALSO WITH FORM 15-J VIDE PAPER BOOK PAGE NUMBER NO. 12 TO 68. VIDE PAPER BOOK PAGE NO.70 TO 210 LIST OF TRUCK NUM BERS DATES AND AMOUNTS WERE FURNISHED STATING THAT NO TRIP EXCEEDED RS.20,000 O R RS.50,000 FOR SAME TRUCK. THIS PAPER BOOK WAS SENT TO THE AO INQUIRING WHETHE R THE CONTENTION OF THE APPELLANT THAT ALL THIS WAS FURNISHED TO THE AO IS CORRECT OR NOT. THE LETTER OF THIS OFFICE IS REPRODUCED BELOW: .. 10. HON'BLE ITAT DECISION OF A BENCH AHMEDABAD IN T HE CASE OF VALIBHAI KHANBHAI MANKAD - ITA NO.2228/ AHD /2009 DATED 29.4.2011 WAS RELIED IN SUPPORT OF THE ARGUMENT THAT ONCE FORM NO. 15-I WERE COLLECTED ..... 15-J W AS JUST A PROCEDURAL FORMALITY. THE APPELLANT HAD SUBMITTED 15-J WITH 1TO(TDS) - 4 ON 2 6.9.2008. COPY OF LETTER BEARING RECEIPT STAMP OF ITO(TDS) - 4 WAS GIVEN. IT WAS STA TED THAT THE ENTIRE LIST OF INDIVIDUALS GIVING TRUCK NUMBER, OWNERS NAME, ADDRESS, WITH REG ISTRATION PROOF WAS SUBMITTED TO THE DEPARTMENT WITH FORM 15-J. 12. IT IS SEEN THAT THE APPELLANT SHOULD HAVE SUBMI TTED FORM 15-J TO THE CONCERNED COMMISSIONER BY 30.6.2008 BUT INSTEAD FORM 15-J WAS SUBMITTED TO THE ITO(TDS) RANGE-4 ON 26.9.2008 . STILL IN MY VIEW THE APPELLA NT'S CASE IS COVERED BY HON'BLE ITAT BENCH 'A' DECISION IN THE CASE OF VALIBHAI KHANBHAI MANKAD - ITA NO.2228/AHD/2009 ITA NO 2457/ AHD/2011 . A.Y. 2008-09 4 DATED 29.4.2011 BECAUSE THE APPELLANT HAD COLLECTED FORM 15-I AND HAD SUBMITTED THEM ON 26.9.2008 THROUGH FORM 15-J TO THE INCOME TAX DE PARTMENT THOUGH NOT TO THE CONCERNED COMMISSIONER WHEREAS IN THE CASE OF VALIB HAI KHANBHAI MANKAD FORM 15-J WAS NOT SUBMITTED AT ALL AND STILL HON'BLE TRIBUNAL DELETED THE ADDITION ON THE GROUND THAT FORM 15-I WERE COLLECTED BY THE APPELLANT AND THEREFORE HE WAS NOT REQUIRED TO DEDUCT TDS AND THAT SUBMISSION OF FORM 15-J WAS ONLY A PROCEDURAL FORMA LITY. THEREFORE THE ADDITION OF RS.4,08,72,550 IS DIRECTE D TO BE DELETED ON THE BASIS OF THE HON'BLE ITAT DECISION. FURTHER THERE IS NO BASIS FOR SUSTAINING THE ADDITI ON OF RS.2,29,08,202 BECAUSE THE DETAILS GIVEN BY THE APPELLANT TO THE AO AND TO THIS OFFICE DO NOT SHOW THAT SINGLE TRIP EXCEEDED RS.20,000 AND AS PER CLAUSE 5 TO SECTION 194C NO TD S IS REQUIRED TO BE MADE IF THE SUM PAID TO THE CONTRACTOR DOES NOT EXCEED RS.20,000 AN D AS PER PROVISO IF THE AGGREGATE OF SUCH SUMS IN A YEAR DOES NOT EXCEED RS.50,000 NO TD S IS REQUIRED TO BE MADE. THE DETAILS SUBMITTED HAVE NOT BEEN CHALLENGED ON MERIT S BY THE AO, THEREFORE THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.2,29,08,202 A LSO. THUS ADDITION OF RS.6,37,80,752 (RS.4,08,72,550 + R S.2,29,08,202) IS DIRECTED TO BE DELETED. 5. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REV ENUE IS NOW IN APPEAL BEFORE US. 6. BEFORE US, LD. D.R. SUPPORTED THE ORDER OF A.O. ON THE OTHER HAND LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE A.O AND LD. CIT(A) AND FURTHER SUBMITTED THAT WHILE DISALLOWING THE EXPENDITURE, A .O HAS NOT POINTED OUT THE CASES WHERE THE PAYMENTS OF FREIGHT WERE MORE T HAN RS. 20,000/- IN A SINGLE TRIP AND EXCEEDED RS. 50,000/- IN A YEAR. AS FAR AS A.OS OBSERVATION OF ASSESSEE NOT PROVIDING PAN NUMBERS IN FORM15I & 15J IS CONCERNED, HE SUBMITTED THAT AT THE RELEVANT POINT OF TIME, IT WA S NOT MANDATORY TO MENTION THE PAN NUMBER IN FORM 15I AND 15J AND THE FURNISHI NG OF PAN NUMBER ITA NO 2457/ AHD/2011 . A.Y. 2008-09 5 BECAME MANDATORY WITH EFFECT FROM 01.10.2009. HE FU RTHER SUBMITTED THAT ASSESSEE HAD FURNISHED THE COPIES OF THE RTO BOOKS OF THE TRUCK OWNERS WHICH SHOWED THE ADDRESSES OF THE OWNERS. HE FURTHE R SUBMITTED LD. CIT(A) WHILE DELETING THE ADDITION, HAD RELIED UPON THE DE CISION OF HONBLE ITAT IN THE CASE OF VALIBHAI KHANBHAI MANKAD (SUPRA) AND TH E AFORESAID DECISION OF ITAT HAS BEEN UPHELD BY THE HONBLE HIGH COURT AND THE SAME IS REPORTED IN (2012) 28 TAXMANN.COM. 119 (GUJ.). HE ALSO PLACE D THE RECORD THE COPY OF THE AFORESAID DECISION. HE THUS SUPPORTED THE OR DER OF LD. CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT THE DISALLOWANCE OF EXPENDITURE U/S. 40(A)(IA) ON ACCOUNT OF NON DEDUCTION OF TAX FROM T HE FREIGHT PAYMENTS MADE BY THE ASSESSEE. WE FIND THAT LD. CIT(A) WHILE DELE TING THE ADDITION OF RS. 2,29,08,202/- HAS GIVEN A FINDING THAT THERE WAS NO T A SINGLE INSTANCE WHERE PAYMENT IN A SINGLE TRIP EXCEEDED RS. 20,000/- OR E XCEEDING RS. 50,000/- DURING THE YEAR. WITH RESPECT TO THE DELETION OF AD DITION OF RS. 4,08,72,550/- IS CONCERNED, WE FIND THAT LD. CIT(A) HAS GIVEN A F INDING THAT ASSESSEE HAD COLLECTED FORM-15I AND HAD SUBMITTED THE SAME TO TH E REVENUE DEPARTMENT AND THEREFORE RELYING ON THE DECISION OF HONBLE TR IBUNAL IN THE CASE OF VALIBHAI KHANBHAI MANKAD (ITA NO. 2228/A/2009 ORDER DATED 29.04.2011) DELETED THE ADDITION. THE AFORESAID FINDINGS AND OB SERVATIONS OF LD. CIT(A) HAVE NOT BEEN CONTROVERTED BY REVENUE BY PLACING AN Y CONTRARY MATERIAL ON RECORD. WE FURTHER FIND THAT THE DECISION OF THE CO -ORDINATE BENCH OF TRIBUNAL IN THE CASE OF VALIBHAI KHANBHAI MANKAD (S UPRA) WHICH WAS RELIED BY LD. CIT(A) WAS UPHELD BY HONBLE GUJARAT HIGH CO URT IN TAX APPEAL NO. 1182/A/2011 ORDER DATED 1 ST OCTOBER, 2012 BY DISMISSING THE APPEAL OF THE ITA NO 2457/ AHD/2011 . A.Y. 2008-09 6 REVENUE. IN VIEW OF THE AFORESAID FACTS, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUND OF REVE NUE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 04- 12 - 2015. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD