ITO, Ropar V. M/s Chamkaur Sahib Trailor Service, Chamkur Sahib

ITA 268/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80919 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-09-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 07-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Principle of natural justice; Additional evidence
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 268/CHD/2013 ASSESSMENT YEAR: 2008-09 THE INCOME TAX OFFICER, V THE CHAM KAUR SAHIB WARD 2(4), TRAILOR SERVICE, ROPAR. BELA ROAD, CHAMKAUR SAHIB. PAN: AAEFC8343A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.S.NAGAR RESPONDENT BY : SHRI ASHWANI KUMAR DATE OF HEARING : 25.09.2014 DATE OF PRONOUNCEMENT : 29.09.2014 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) CHANDIGARH DATED 31.12.2012 FOR ASSESSMENT YEAR 2008-09, CHALLENGING THE DELETION O F ADDITION OF RS. 27,69,482/- UNDER SECTION 40(A)(IA) OF THE I T ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E, A TRANSPORT CONTRACTOR, WAS ASKED TO GIVE TRUCK-WISE DETAILS OF THE PAYMENTS MADE TO THE TRUCK OWNERS (SUB-CONTRAC TORS) ALONGWITH THE TDS DEDUCTED. THE ASSESSEE FILED DET AILS AS REQUIRED BY THE ASSESSING OFFICER FROM WHICH IT WAS NOTICED THAT TOTAL PAYMENT OF RS. 27,69,482/- HAD BEEN MADE TO 12 INDIVIDUALS, EACH OF WHOM WAS PAID THE AMOUNT EXCEE DING RS. 50,000/- AND TDS WAS NOT DEDUCTED ON ANY OF THESE P AYMENTS. 2 THE ASSESSING OFFICER ASKED THE ASSESSEE TO SUBMIT COPIES OF FORM NO. 15I AND COPY OF RECEIPT OF FORM NO. 15J IN THE OFFICE OF THE CIT. THE ASSESSEE COULD NOT SUBMIT COPIES O F THESE FORMS AND SO THE ASSESSING OFFICER CONCLUDED THAT T HE TDS WAS REQUIRED TO BE DEDUCTED ON THE AFORESAID PAYMEN TS UNDER SECTION 194C OF THE ACT WHICH HAS NOT BEEN DONE AND SO THE ASSESSING OFFICER DISALLOWED THE ENTIRE AMOUNT UNDE R SECTION 40(A)(IA) OF THE IT ACT. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) AND SUBMITTED THAT ASSESSEE WAS ASKED TO FURNISH FORM NO. 15I AND COPY OF RECEIPT OF FORM NO . 15J IN THE CITS OFFICE ON 29.12.2010 AND THE ASSESSMENT O RDER WAS PASSED ON THE NEXT DATE I.E. 30.12.2010. THEREFORE, PRINCIPLE OF NATURAL JUSTICE HAS BEEN VIOLATED. IT WAS SUBMI TTED THAT ASSESSEE HAD COPIES OF THESE FORMS IN HIS POSSESSIO N AT THE TIME OF MAKING PAYMENTS TO THE TRUCK OWNERS AND SO THERE WAS NO LIABILITY TO DEDUCT ANY TAX AT SOURCE. RELIANCE HAS BEEN PLACED ON THE DECISION OF ITAT, CALCUTTA BENCH IN T HE CASES OF M/S CAPITAL TRANSPORT CORPORATION AND M/S KESHAN LO GISTIC PVT. LTD. AND ORDER OF ITAT, AHMEDABAD BENCH IN THE CASE OF VALIBHAI KHANBHAI MANKAD AND OF MUMBAI BENCH IN THE CASE OF VIPIN K.MEHTA. 4. THE LD. CIT(APPEALS) CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND MATERIAL BEFORE HIM, DELETED THE ENTIR E ADDITION AND ALLOWED THE APPEAL OF ASSESSEE. HIS FINDINGS I N PARA 5 AND 6 IN THE IMPUGNED ORDER ARE REPRODUCED AS UNDER : 5. I HAVE CONSIDERED THE SUBMISSION OF THE LD. C OUNSEL. A PERUSAL OF THE ASSESSMENT ORDER REVEALS THAT COUN SEL FOR 3 THE APPELLANT WAS ASKED BY THE ASSESSING OFFICER ON 29.12.2010 TO FILE COPIES OF FORM NOS. 151 AND COPY OF RECEIPT OF FORM NO. 15J (WRONGLY MENTIONED AS 15G I N THE ASSESSMENT ORDER) SUBMITTED TO THE CIT AND THE ASSESSMENT ORDER HAS BEEN PASSED ON 30.12.2010. IN FACT, THE ASSESSING OFFICER HAD ASKED FOR THESE DETAILS J UST BEFORE THE TIME BARRING DATE AND DID NOT WAIT EVEN FOR A DAY AND HAS PASSED THE ASSESSMENT ORDER ON THE VERY NEXT DAY. THE ASSESSING OFFICER HAS NOT GIVEN PROPER OPPORTUNITY TO THE APPELLANT, WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS PRODUCED COPIES OF F ORM NOS. 151 BY WAY OF ADDITIONAL EVIDENCE, WHICH WERE SENT TO THE ASSESSING OFFICER FOR COMMENTS AND THE ASSES SING OFFICER HAS SUBMITTED THAT THESE DOCUMENTS MUST HAV E BEEN WITH THE APPELLANT AND SO THESE SHOULD HAVE BE EN SUBMITTED BEFORE THE ASSESSING OFFICER. 5.1 THE CONTENTION OF THE ASSESSING OFFICER THAT FORM NOS. 15.1 WERE SIGNED IN 2007 AND SO THERE WAS NO REASON FOR THE APPELLANT NOT TO SUBMIT THESE BEFORE THE ASSESSING OFFICER MAY BE CORRECT, BUT THE ASSESSIN G OFFICER HAD ASKED FOR THESE FORMS ON 29.12.2010 AND WITHOUT WAITING FOR THE APPELLANT TO RESPOND, THE ASSESSMENT ORDER WAS PASSED ON 30.12.2010. AS THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FRO M PRODUCING BEFORE THE ASSESSING OFFICER THESE EVIDEN CES (FORM NOS. 151), BECAUSE IT WAS GIVEN VERY LITTLE TIME FOR SUBMITTING THIS EVIDENCE, WHICH ARE RELEVANT TO THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT AND SO THESE ARE A DMITTED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. HEN CE, IT CANNOT BE CONCLUDED THAT THE APPELLANT WAS NOT IN POSSESSION FROM NOS. 151 BEFORE RELEASING THE PAYME NT TO THE SUB-CONTRACTORS. 5.2 HAVING HELD THAT THE APPELLANT MUST HAVE BEEN IN POSSESSION OF FORM NO. 151 BEFORE RELEASING THE PAY MENT, NEXT QUESTION TO BE DECIDED IS WHETHER THE PROVISIO NS OF SECTION 40(A)(IA) OF THE ACT COULD BE APPLIED IF FO RM NO. 15J HAD NOT BEEN FILED OR HAD BEEN FILED AFTER THE DUE DATE IN THE OFFICE OF THE COMMISSION OF INCOME TAX. I HAVE GONE THROUGH THE DECISIONS RELIED UPON BY THE LD. COUNSE L, PARTICULARLY IN THE CASE OF M/S CAPITAL TRANSPORT CORPORATION (SUPRA) IN WHICH IT HAS BEEN HELD: 'IN THE PRESENT CASE BEFORE THE ASSESSING OFFICER, ASSESSEE HAD SUBMITTED THAT FORM 15-1 RECEIVED BY HIM COULD NOT BE DEPOSITED WITH LD. CIT. ASSESSEE'S SUBMISSIONS HAVE BEEN REPRODUCED IN PARA-7(II) AT PAGE-4 OF ASSESSING OFFICER'S ORDER. AFTER CONSIDERING THE ASSESSEE'S SUBMISSION ASSESSING OFFICER, INTER ALIA, OBSERVED THAT ASSESSEE DID NOT SUBMIT FORM 15-J BY 30.06.2006 BECAUSE HE HAD NOT RECEIVED FROM 15-1 HE WAS OF THE VIEW THAT 15-I WAS RECEIVED SUBSEQUENTLY WHEN THE ASSESSEE WAS CONFRONTED WITH THE ISSUE OF DISALLOWANCE UNDER SECTION 40(A)(IA). THE AVAILABILITY OF FORM 15-1, HOWEVER, AT THE TIME OF ASSESSMENT PROCEEDINGS IS NOT DOUBTED. THEREFORE, IN VIEW OF DECISION IN THE CASE OF SH. 4 VIPIN P. MEHTA (SUPRA), ASSESSING OFFICER IS DIRECTED TO DELETE THE DISALLOWANCE OF RS. 24,74,376/- 5.3 IN THE CASE CITED ABOVE, THE APPELLANT COULD NOT SUBMIT FORM NO. 15J BY DUE DATE BECAUSE IT HAD NOT RECEIVED FORM NOS. 151, WHICH WERE COLLECTED WHEN T HE APPELLANT WAS CONFRONTED BY THE ASSESSING OFFICER W ITH THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT. IN THE INSTA NT CASE ALSO, I HAVE ALREADY HELD THAT THE AVAILABILITY OF FORM NOS. 151 WITH THE APPELLANT CANNOT BE DOUBTED. MOREOVER, AS HELD BY HON'BLE ITAT, AHMEDABAD IN THE CASE OF VALI BHAI KHANBAI MANKAD (SUPRA) THAT ONCE TDS IS NOT MADE AN D THE PAYMENT IS RELEASED TO THE SUB-CONTRACTORS THEN FOR MERELY NOT FURNISHING FORM NO. 15J, THE ASSESSEE CA NNOT BE COMPELLED TO DEDUCT TAX FROM THE PAYMENT, WHICH IS ALREADY RELEASED. THE RATIO OF THE DECISION OF M/S CAPITAL TRANSPORT CORPORATION (SUPRA) AND VALIBAI KHANBHAI MANKAD (SUPRA) ARE SQUARELY APPLICABLE TO THE CASE OF THE APPELLANT. BY RESPECTFULLY FOLLOWING THESE DECISION S, IT IS HELD THAT THE ASSESSING OFFICER WAS NOT RIGHT IN MA KING THE ADDITION OF RS. 27,69,482/- U/S 40(A)(IA) OF THE AC T AND SO THE SAME IS DELETED. GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE ALLOWED. 6. IN THE RESULT, APPEAL IS ALLOWED. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE DEPARTMENTAL APPEAL. THE LEARNED DR CONTENDED THAT FORM NO. 15I AND 15J WERE NOT SUBMIT TED BEFORE ASSESSING OFFICER AT THE ASSESSMENT STAGE, T HEREFORE MATERIAL MAY BE REMANDED TO THE FILE OF ASSESSING O FFICER. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE REITER ATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW. THE SUB MISSION OF THE ASSESSEE WOULD CLEARLY SHOW THAT NO SUFFICIE NT TIME WAS GIVEN TO ASSESSEE TO PRODUCE THE COPIES OF THESE FO RMS BEFORE ASSESSING OFFICER AT ASSESSMENT STAGE. THE ASSESSE E, THEREFORE, CORRECTLY FILED THE APPLICATION UNDER RU LE 46A OF THE IT RULES BEFORE LD. CIT(APPEALS) WHICH HAS ALSO BEE N CORRECTLY ADMITTED BY LD. CIT(APPEALS) FOR CONSIDERATION AT T HE APPELLATE STAGE. THERE IS NO GROUND OF APPEAL RAISED BY THE REVENUE CHALLENGING THE JURISDICTION EXERCISED BY THE LD. C IT(APPEALS) 5 IN ADMITTING THE ADDITIONAL EVIDENCES UNDER RULE 46 A OF THE IT RULES. IN THE ABSENCE OF ANY CHALLENGE TO THESE FI NDINGS OF LD. CIT(APPEALS), THERE IS NO PURPOSE EVEN IN REMANDING THE MATTER TO THE FILE OF ASSESSING OFFICER FOR EXAMINA TION. THE LD. CIT(APPEALS) CONSIDERING THE ISSUE IN THE LINE OF V ARIOUS ORDERS OF THE DIFFERENT BENCHES OF THE TRIBUNAL REFERRED T O ABOVE, CORRECTLY CAME TO THE CONCLUSION THAT ADDITION IS F ULLY UNJUSTIFIED. THE ASSESSEE'S COUNSEL HAS PLACED ON RECORD COMPLETE COPIES OF THE ORDERS REFERRED TO BEFORE LD . CIT(APPEALS) WHICH CLEARLY PROVE THAT THE MATTER IN ISSUE IS COVERED IN FAVOUR OF ASSESSEE BY THE ORDERS RELIED UPON BY LD. CIT(APPEALS). WE, THEREFORE, DO NOT FIND ANY JUSTI FICATION TO INTERFERE IN THE ORDER OF LD. CIT(APPEALS) IN DELET ING THE ADDITION. DEPARTMENTAL APPEAL FAILS AND IS DISMISS ED. 6. IN THE RESULT, DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH SEPTEMBER,2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH SEPTEMBER,2014. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH