M/s. Shree Choudhary Transport Co., JODHPUR V. ACIT, JODHPUR

ITA 30/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5276 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Assessee Lawyers: REJENDRA JAIN
• Section: 194C; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO S . 2 9 & 30 / JODH /201 5 (ASST. YEAR : 200 6 - 0 7 & 2008 - 09 ) M/S. SHREE CHOUDHARY TRANSPORT CO., E - 119/120, KALPAT A RU CINEMA ROAD, JODHPUR. VS. ACIT, CIRCLE - 1, JODHPUR. PAN NO. AAPFS 6308 A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI REJENDRA JAIN ADV. DEPARTMENT BY : S HRI S.K. MADHUK - DR DATE OF HEARING : 1 5 / 0 3 /201 6 . DATE OF PRONOUNCEMENT : 1 5 / 03 /201 6 . O R D E R PER N.S. SAINI , ACCOUNTANT MEMBER T HESE ARE THE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS COMMISSIONER OF INCOME TAX (APPEALS) - 1 , JODHPUR , DATED 2 2 / 12 /201 4 . 2. IN BOTH THE APPEALS, THE COMMON GROUND OF APPEAL TAKEN IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN MAKING ADDITION UNDER SEC. 40(A)(IA) OF THE ACT OF RS. 31,49, 952/ - IN ASSESSMENT YEAR 2006 - 07 AND RS. 3,09,43,394/ - IN ASSESSMENT YEAR 2008 - 09. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER DISALLOWED RS. 31,49,952/ - IN ASSESSMENT YEAR 2006 - 07 AND RS. 3,09,43,394/ - IN ASSESSMENT YEAR 2008 - 09 ON THE GROUND THAT FORM NO S . 15 J & 15I WERE 2 ITA NOS. 29 & 30/JODH/2015 NOT SUBMITTED TO THE COMMISSI O NER OF INCOME TAX WITHIN THE STATUTORY TIME LIMIT. 4 . ON APPEAL, COMMISSIONER OF INCOME TAX (APPEALS) CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY OBSERVING AS UNDER: - 4.2. I HAVE CONSIDERED THE FACTS OF THE CASE AND WRITTEN SUBMISSION OF THE APPELLANT AND I FIND THAT DURING THE YEAR UNDER CONSIDERATION THE FACTS REMAIN IDENTICAL TO THOSE FOR THE AY 2005 - 06 & 2007 - 08 FOR WHICH THE SIMILAR ADDITION STANDS CONFIRMED BY MY PREDECESSORS. IT IS THE FACT THAT THE DELAY CONDO NATION APPLICATION FOR FILING OF FORM NO. 15J HAS BEEN REJECTED BY THE CIT - I, JODHPUR. THE ASSESSING OFFICER HAS EXAMINED THE G ENUINENESS OF THE FORM NO. 15J AS PER THE DIRECTION OF HON'BLE ITAT, JODHPUR BENCH . IT IS A NOTICEABLE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE GENUINENESS OF THE FORM N O. J BEFORE THE ASSESSING OFFICER AS WELL BEFORE THE UNDERSIGNED. FURTHER, CONSIDERING THE FACT THAT MAJORITY OF PAYMENTS TO THE TRUCK OPERATORS WERE ABOVE RS. 50,000 / - , THE TDS PROVISIONS WERE CLEARLY APPLICABLE. AS FAR AS APPLICABILITY OF SEC. 194C IS CONCERNED, IT IS PERTINENT TO MENTION HERE THAT IN AY 2005 - 06 THE ASSESSEE HAS CLAIMED THAT PROVISIONS OF SEC. 194C WERE NOT APPLICABLE IN ITS CASE AND HENCE NO TAX WAS DEDUCTED AT SOURCE, BUT THE PLEA OF THE ASSESSEE WAS NOT ACCEPTED BY THE HON'BLE HIGH COURT OF RAJASTHAN. SINCE THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THOSE IN AY 2005 - 06, THEREFORE, THIS PLEA OF THE APPELLANT CANNOT BE ACCEPTED THAT PROVISIONS OF SEC. 194C ARE NOT ATTRACTED IN THE INSTANT CASE. IN VIEW OF THE ABOVE, IT IS HELD THAT THE APPELLANT IS LIABLE TO DEDUCT THE TAX ON PAYMENT OF TRUCK OPERATORS. ACCORDINGLY, I UPHOLD THE FINDING OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS MADE PAYMENTS OF RS. 31,49,952/ - TO SUB - CONTRACTOR/TRUCK OWNERS IN CONTRAVENTION TO THE PROVISION OF SEC. 194C OF THE I. T. ACT, 1961. THE GROUNDS RAISED IN THIS REGARD ARE DISMISSED. 5. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAS FILED BEFORE US A LETTER FROM THE ASSESSING OFFICER , DATED 14/03/2016 , WHEREIN HE HAS STATED AS UNDER: - SIR, SUB: - FURNISHING OF FORM 15J AND 15I FOR ASSESSMENT YEAR 2006 - 07 & 2008 - 09 BY M/S. SHREE CHOUDHARY TRANSPORT COMPANY , PAN AAPFS 6308 A REG. ---- KINDLY REFER TO THE SUBJECT MENTIONED ABOVE. IT IS SUBMITTED 3 ITA NOS. 29 & 30/JODH/2015 THAT THE ABOVE MENTIONED ASSESSEE HAS FILED FORM 15J ENCLOSING DECLARATIONS IN FORM 15I FOR ASSESSMENT YEAR 2006 - 07 AND 2008 - 09. YOURS FAITHFULLY, SD/ - (14/03/2016) (SANJAY KUMAR SINGH) ACIT, CIRCLE - 1, JODHPUR. 6 . FROM A READING OF THE ABOVE LETTER OF THE ASSESSING OFFICER, IT IS AN ADMITTED POSITION THAT FORM NOS. 15J & 15I WERE FILED BEFORE THE ASSESSING OFFICER. FURTHER, FOR NON - FILING OF FORM NOS. 15J & 15I WITH THE PRESCRIBED AUTHORITY AS PER THE PROVISIONS OF SEC. 200(3) OF THE ACT, THE ASSESSEE IS LIABLE TO PAY PENALTY UNDER SEC. 271H OF THE ACT. THUS FOR NON - FILING OF FORM NOS. 15J & 15I WITH THE PRESCRIBED AUTHORITIES, NO DISALLOWANCE CAN BE MADE UNDER SEC. 40(A)(IA) OF THE ACT AS IT IS NOT A CASE OF NON - DED U CTION OF TDS OR NON - PAYMENT OF THE DEDUCTED TDS. 7. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETED THE DISALLOWANCE MA DE UNDER SEC. 40(A)(IA) OF THE ACT FOR RS. 31,49,952/ - IN ASSESSMENT YEAR 2006 - 07 AND RS. 3,09,43,394/ - IN ASSESSMENT YEAR 2008 - 09 AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 8. IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 1 5 TH DAY OF MARCH , 201 6 AT JODHPUR . S D / - S D / - (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER D ATED : 1 5 TH MARCH , 201 6 . VR/ - COPY TO: 4 ITA NOS. 29 & 30/JODH/2015 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER .