Appeal details
Counselvise Citation
[2011] 134 COUNSELVISE.COM (IT) 6993 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 10 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
17-06-2011
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
11-04-2011
Assessment Year
2006-2007
Appeal Filed On
31-07-2009
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 306/AGRA/2009 ASSTT. YEAR : 2006-07 A.C.I.T., CIRCLE 3, VS. SHRI VIPIN ARORA, GWALIOR. PROP. M/S. VICKY ROADWAYS, A.B. ROAD, SHIVPURI. (PAN : AESPA 1503 L) ITA NO. 307/AGRA/2009 ASSTT. YEAR : 2006-07 A.C.I.T., CIRCLE 3, VS. SHRI PANKAJ KUMAR ARO RA, GWALIOR. PROP. M/S. PANKAJ ROADLINES, A.B. ROAD, SHIVPURI. (PAN : AESPA 1464 J) ITA NO. 308/AGRA/2009 ASSTT. YEAR : 2006-07 A.C.I.T., CIRCLE 3, VS. SHRI RAJ KUMAR ARORA, GWALIOR. A.B. ROAD, SHIVPURI. (PAN : AESPA 1461 P) C.O. NO. 01/AGRA/2011 (IN ITA NO. 308/AGRA/2009) ASSTT. YEAR : 2006-07 SHRI RAJ KUMAR ARORA, VS. A.C.I.T., CIRCLE 3, A.B. ROAD, SHIVPURI. GWALIOR. (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI HOMI RAJVANSH, CIT/DR FOR RESPONDENT : SHRI K.C. AGARWAL, ADVOCATE. 2 ORDER PER P.K. BANSAL, A.M. : THESE APPEALS HAVE BEEN FILED BY THE REVENUE IN T HE CASES OF DIFFERENT ASSESSEES AGAINST THE ORDERS DATED 22.04.2009 AND 23.04.2009 OF THE C IT(A), GWALIOR. THE ASSESSEE M/S. RAJ KUMAR ARORA HAS ALSO FILED CROSS OBJECTION IN ITA N O. 308/AGRA/2009. SINCE COMMON ISSUE IS INVOLVED IN ALL THESE APPEALS, ALL THE APPEALS ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE FIRST TAKE ITA NO. 306 /AGRA/2009 IN THE CASE OF SHRI VIPIN ARORA, WHEREIN THE IMPUGNED ORDER HAS BEEN ASSAILED ON THE FOLLOWING GROUNDS : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (A) HAS ERRED IN LAW IN 1. DELETING THE ADDITION OF RS.9,43,81,587/- MADE B Y THE ASSESSING OFFICER APPLYING THE PROVISIONS OF SECTION 40(A)(IA ) OF THE I.T. ACT, 1961. 2. ALLOWING THE RELIEF OF RS.2,65,687/- AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCES O F UNVERIFIABLE EXPENSES. 2. BRIEF FACTS RELATING TO GROUND NO. 1 ARE THAT TH E ASSESSEE DERIVES INCOME FROM THE BUSINESS OF TRANSPORTATION OF GOODS, WHICH ARE RECEIVED IN B ULK FROM ITS CUSTOMERS FOR TRANSPORTATION FROM ONE PLACE TO ANOTHER. FOR THIS PURPOSE, APART FROM HIS OWN TRUCKS, THE ASSESSEE USED TO ENGAGE THE TRUCKS OF OTHER OWNERS TO CARRY THE GOODS AT VARIOU S DESTINATIONS, FOR WHICH THE TRANSPORTATION CHARGES ARE PAID BY ASSESSEE TO DIFFERENT TRUCK OWN ERS AT VARIOUS OCCASIONS. AS PER ASSESSING OFFICER, THE ASSESSEE HAS SHOWN GROSS RECEIPT OF RS .9,71,42,887/- AND CLAIMED FREIGHT PAID TO SUB- CONTRACTORS/TRUCK OWNERS AMOUNTING TO RS.9,43,81,54 7/-, ON WHICH NO TDS WAS DEDUCTED BY ASSESSEE U/S. 194C OF THE ACT. THE ASSESSING OFFICE R, THEREFORE, AFTER INVOKING THE PROVISIONS OF SECTION 40A(IA), HELD THE FREIGHT PAYMENTS OF RS.9, 43,81,547/- MADE TO SUB-CONTRACTORS, ON WHICH 3 TDS WAS NOT DEDUCTED BY THE ASSESSEE, AS LIABLE TO BE TAXED IN THE HANDS OF ASSESSEE U/S. 40A(IA) OF THE ACT FOR THE FOLLOWING REASONS : (I). THE ASSESSEE RECEIVED PAYMENTS ON ACCOUNT OF F REIGHT COMMISSION TO THE TUNE OF RS. 9,71,42,887/- ON WHICH TDS WAS PAID BY THE ASSESSEE TO THE DEDUCTOR. (II). THE ASSESSEE FURTHER SUB-CONTRACTED THE WORK AND PAID FREIGHT AMOUNTING TO RS. 9,43,81,547/- . (III). BY DOING SO, ASSESSEE WAS LIABLE TO DEDUCT T AX AT SOURCES @ 2% ON PAYMENTS MADE TO SUB-CONTRACTORS U/S 194C (IV). THE ASSESSEE FAILED TO DEDUCT TAX ON THE FREI GHT PAYMENTS TO SUB- CONTRACTORS AND DEPOSIT THE SAME WITH GOVT. (V). THE ASSESSEE WAS NOT ABLE TO FURNISH AFFIDAVIT FROM THE SUB-CONTRACTORS IN RESPECT OF OWNERSHIP OF TRUCKS. (VI). THE ASSESSEE HAS PRODUCED SOME FORM NO. 15-1 OUT OF SEVERAL PERSONS TO WHOM FREIGHT PAYMENT WAS MADE. THE ASSESSEE DID NOT COOPERATE IN FURNISHING DETAILS AND DATE OF PAYMENTS MADE TO SUB-CONTRACTOR S. ON VERIFICATION OF THESE FORMS 15 I, IT IS LIKELY THAT MOST OF THE FORM 15 I WAS COLLECTED AFTER THE PAYMENTS MADE TO SUB-CONTRACTORS AND NOT COLLECTED BEFORE TH E PAYMENT WAS MADE TO THEM AS STIPULATED UNDER THE PROVISO (2) OF RULE 290. TH IS IS GROSS VIOLATION OF INCOME TAX RULES AND THEREFORE, ACTION OF THE ASSESSEE ON THIS ACCOUNT IS NOT JUSTIFIABLE AND NOT TENABLE (VII). ASSESSEE FAILED TO DEPOSIT THE FROM NO. 15J, AS STIPULATED SPECIFICALLY IN THE RULES, TO THE PRESCRIBED AUTHORITY WHICH IS THE COMMISSIONER OF INCOME TAX, GWALIOR. (VIII). DESPITE OPPORTUNITY AFFORDED VIDE ORDER SHE ET ENTRY DATED 04.09.2008, 23.10.2008 AND LASTLY ON 06.11.2008 REGARDING APPLI CABILITY OF SEC. 40(IA) OF THE I.T. ACT IN ITS CASE, ASSESSEE FAILED TO JUSTIFY IT S CLAIM OF NON-DEDUCTION OF TAX ON FREIGHT PAYMENTS AMOUNTING TO RS.9,43,81,547/- . 3. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT( A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, VARIOUS CASE LAWS ON RELIED, RELEV ANT PROVISIONS OF LAW AND THE MATERIAL AVAILABLE ON RECORD, DELETED THE ADDITION BY OBSERVING AS UND ER : IN VIEW OF THE FOREGOING, IT IS EVIDENT THAT IN TH E ABSENCE OF ANY WRITTEN OR ORAL AGREEMENT BETWEEN THE APPELLANT AND THE PARTIE S FOR CARRIAGE OF GOODS AS ALSO ON THE BASIS OF FURTHER FACTS AS DISCUSSED IN DETAIL ABOVE WITH REFERENCE TO THE 4 RESPECTIVE PROVISIONS OF LAW AS QUOTED ABOVE, THE A PPELLANT WAS NOT LIABLE TO DEDUCT THE TAX AT SOURCE U/S. 194C OF THE IT ACT FR OM THE PAYMENTS MADE TO THE TRANSPORTERS. CONSEQUENTLY, THE PROVISIONS AS CONTA INED IN SECTION 40(A)(IA) OF THE I.T. ACT DID NOT APPLY IN CASE OF THE APPELLANT IND IVIDUAL, SINCE THE TAX WAS NOT DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B OF THE I. T. ACT. THE ADDITION, THEREFORE, BASED ON THE ASSUMPTION OF AGREEMENTS EN TERED INTO DOES NOT SURVIVE AND THE SAME IS HEREBY DELETED. 4. THE LEARNED DR, RELYING ON THE ORDER OF THE ASSE SSING OFFICER SPECIALLY PAGE 2 & 5, POINTED OUT THAT THE ASSESSEE OWNS ONLY FIVE TRUCKS WHILE THE OTHER TRUCKS WERE HIRED BY THE ASSESSEE FROM OTHER PARTIES. THEREFORE, THE ASSESSE E HAS ENTERED INTO A CONTRACT. THE CONTRACT MAY BE ORAL OR WRITTEN AS PER THE CONTRACT ACT. IT NEED NOT BE IN WRITING FOR THE APPLICABILITY OF SECTION 194-C. 5. THE LEARNED AR, ON THE OTHER HAND, REITERATED TH E SUBMISSIONS MADE BEFORE THE CIT(A) AND IT WAS CONTENDED THAT THE REVENUE HAS NOT SUBMI TTED ANY EVIDENCE WHICH IS CONTRARY TO THE FINDING GIVEN BY THE CIT(A) THAT THERE WAS NO CONTR ACT BETWEEN THE OTHER TRUCK OWNERS AND THE ASSESSEE TO CARRY OUT THE TRANSPORTATION AGREEMENT. THE ASSESSEE HIMSELF HAS EXECUTED THE CONTRACT AND ARRANGED THE TRUCKS OF OTHER PARTIES. THE TRUCK FREIGHTS WERE INVOICED BY THE ASSESSEE. ATTENTION WAS INVITED TOWARDS PAGE 7 AND 8 OF THE PAPER BOOK CONSISTING OF THE COPY OF THE LETTER ISSUED BY RELIANCE INDUSTRIES LTD. AND F LEX INDUSTRIES LTD. DATED 10.10.2005 AND 26.02.11. IT WAS POINTED OUT THAT THE ASSESSEE HAS DERIVED INCOME FROM GOODS TRANSPORTATION. HE HAS TEN TRUCKS OF HIS OWN FOUR PURCHASED IN APRIL , 2005, ONE IN MAY, 2005 AND FIVE PURCHASED IN FEBRUARY, 2006. HE HAS BEEN RECEIVING BULK OF G OODS FROM ITS CUSTOMERS FOR TRANSPORTATION FROM ONE STATION TO DIFFERENT DESTINATIONS. SINCE I T WAS NOT POSSIBLE FOR THE ASSESSEE TO CARRY OUT THE JOB WITH HIS TEN TRUCKS, HE USED TO ENGAGE THE TRUCKS OF OTHER OWNERS TO CARRY OUT THE GOODS AT DESIRED DESTINATIONS. FOR THIS PURPOSE, THERE WAS N EITHER ANY ONE PARTICULAR PERSON OR AGENCY NOR 5 ANY FIXED PERIOD OF CONTRACT EITHER WRITTEN OR OR AL. IT WAS ON THE BUSINESS NEED THAT THE TRUCKS WERE USED TO BE HIRED. THE HIRE CHARGES PAID TO THE TRUCK OWNERS WERE, OF COURSE, LESS TO THAT COLLECTED BY THE ASSESSEE FROM ITS CUSTOMERS. THE D IFFERENCE OF HIRE CHARGES RECEIVED FROM THE CUSTOMERS AND PAID TO OTHER TRUCK OWNERS IS DULY SH OWN AS INCOME OF ASSESSEE IN HIS INCOME TAX RETURN. THE ASSESSEE HAS MAINTAINED THE REGULAR BOO KS WHICH WERE DULY AUDITED AND PRODUCED BEFORE THE ASSESSING OFFICER DURING THE YEAR, THE A SSESSEE BESIDES INCOME SHOWN FROM OWN TRUCK, HAS SHOWN GROSS RECEIPTS OF RS. 9,71,42,887/ - IN RESPECT OF THE TRUCK OF OTHER OWNERS AND HAS PAID RS.9,43,81,543/-. THUS, THE ASSESSEE HAS S HOWN AN INCOME OF RS.27,61,340/- IN RESPECT OF TRUCKS OF OTHER OWNERS ENGAGED IN THE BUSINESS. THE ASSESSING OFFICER TOOK THE VIEW THAT THE ASSESSEE WAS LIABLE TO DEDUCT TDS @ 2% U/S. 194C ON EVERY TRANSACTION OF FREIGHT PAYMENT MADE TO SUB-CONTRACTOR AMOUNTING TO RS.9,43,81,543/-. TH E CIT(A) RECORDED A FINDING OF FACT AT PAGE 5 PARA 1 & 2 THAT THERE WAS NOTHING ON RECORD TO SUGG EST THAT THERE WAS ANY AGREEMENT ORAL OR WRITTEN, EXECUTED BETWEEN THE ASSESSEE AND ANY OTHE R PARTY TO WHOM FREIGHT PAYMENTS WERE MADE BY THE ASSESSEE. THE ASSESSING OFFICERS VIEW, THER EFORE, THAT THE ASSESSEE HAS MADE PAYMENTS TOWARDS CONTRACT/SUB-CONTRACT, HAS NO BASIS. THE AT TENTION WAS INVITED TO THE PROVISIONS OF SECTION 194C(2). IT WAS POINTED OUT THAT THIS SUB-SECTION P ROVIDES LIABILITY FOR TDS ONLY WHEN THERE IS AGREEMENT WITH SUB-CONTRACTOR FOR CARRYING OUT ANY WORK OR PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR. IN THIS CASE, THERE IS NEITHER ANY AGRE EMENT NOR CONTRACT WITH THE TRUCK OWNERS FOR EXECUTION FOR ANY CONTRACT UNDERTAKEN BY THE ASSESS EE. ATTENTION WAS ALSO INVITED TOWARDS SECTION 194-C(3) AND IT WAS POINTED OUT THAT THE AS SESSEE HAS NEITHER PAID ANY AMOUNT EXCEEDING RS.20,000/- TO ANY TRUCK OWNER NOR HAS PAD ANY AMOU NT MORE THAT RS.50,000/- IN THE WHOLE YEAR, WHICH IS APPARENT FROM THE DETAILS OF PAYMENT FURNI SHED IN FORM 15J FILED BEFORE THE DEPARTMENT. THUS, IT WAS CONTENDED THAT SECTION 194C WAS NOT AP PLICABLE. IT WAS ALSO POINTED OUT THAT EVEN 6 THOUGH THE PROVISION OF SECTION 194C WERE NOT APPLI CABLE BUT THE ASSESSEE, AS A ABUNDANT PRE- CAUTION DULY OBTAINED PRESCRIBED FORM 15 I FROM THE TRUCK OWNERS AND HAS FILED FORMS 15J IN TIME BEFORE THE PRESCRIBED AUTHORITY. THE ASSESSING OFFI CERS OBJECTION THAT IT WAS FILED BEFORE THE ITO (TDS) AND NOT BEFORE THE CIT, GWALIOR FOR THE C ONVENIENCE OF THE DEPARTMENT. FURTHER, IT WAS SUBMITTED THAT THE OBJECTION OF THE ASSESSING O FFICER THAT MOST OF THE FORM 15I WERE COLLECTED AFTER THE PAYMENT MADE TO SUB-CONTRACTORS AND NOT BEFORE PAYMENT AS PER PROVISO OF RULE 29D IS ALSO NOT SUSTAINABLE FOR WANT OF ANY EV IDENCE PLACED ON RECORD AND THE ASSESSEE IS NOT LIABLE UNDER LAW TO FURNISH THE AFFIDAVITS OF O THER TRUCKS OWNERS TO THE ASSESSING OFFICER. THE LEARNED AR ALSO RELIED ON THE FOLLOWING DECISIONS : (I). ACIT CIRCLE 5 VS. M/S. AVNEESH KUMAR SINGH PRO P. KRISHNA BULK MOVERS, 76, CHAUBEY JI KA BAGH, FIROZABAD IN ITA NO. 592/AGRA/2 008. (II). GOVIND SINGH, MATHURA VS. ITO (TDS) IN APPEAL NO. TDS A.NO. 13/AGRA/2007 (AGRA BENCH). (III). MYTHRI TRANSPORT CORPORATION VS. ACIT (2009) 124 TTJ, VISHAKHAPATNAM BENCH 970. (IV). DATTA DIGAMBER SAHAKARI KAMGAR SANSTHAN LTD . VS. ACIT, 83 ITD 148. (V). MRS. KAVITA CHUG VS. ITO, 34 TTJ (KOLKATA) 18 9. (VI). CIT VS. SIRMOUR TRUCK OPERATORS UNION, 195 T AXMAN 62 (HP) (VII). CIT (TDS) VS. UNITED RICE LAND LTD, 174 TAX MAN 286 (P&H). IT WAS POINTED OUT THAT IN THESE CASE, HONBLE HIGH COURTS AND THE ITAT HAVE TAKEN THE SIMILAR VIEW THAT WHERE THERE WAS NO CONTRACT OR SUB-CONTRA CT BETWEEN THE ASSESSEE AND OTHER TRUCK OPERATORS, SECTION 194C(2) IS NOT APPLICABLE. IT WA S POINTED OUT THAT THE CASE OF THE ASSESSEE IS STRONGER BECAUSE IT IS ALSO COVERED BY SECTION 194- C(3). THUS, IT WAS CONTENDED THAT THE ORDER OF THE CIT(A) BE CONFIRMED. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE CASE OF THE AS SESSEE IS DULY COVERED BY THE DECISION OF THIS 7 TRIBUNAL IN THE CASE OF ACIT VS. M/S. AVNEESH KUMAR SINGH, IN ITA NO. 592/AGRA/2008, IN WHICH THIS TRIBUNAL IN PARA 4 TO 6 HAS HELD AS UNDE R :- 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS ALONG WITH ORDERS OF THE TAX AUTHORITIES AS WELL AS THE VARIOU S CASE LAWS RELIED ON AND CITED BEFORE US. WE FIND THAT THE CASE OF THE ASSESSEE I S DULY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THIS TRIBUNAL IN THE CA SE OF MYTHRI TRANSPORT CORPORATION VS. ACIT, 124 TTJ (VISAKHA) 970 IN WHIC H THE FACTS INVOLVED ARE THE SAME. IN THE SAID CASE, THE TRIBUNAL HAS DECIDED T HE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER :- '8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE BEFORE US MAY BE DECIDED IF WE ANSWER FOLLOWI NG QUESTION: WHETHER THE VEHICLES HIRED BY THE ASSESSEE IN EXEC UTION OF THE TRANSPORT CONTRACT CAN BE TERMED AS A SUB-CONTRACT AND CONS EQUENTLY THE ASSESSEE IS LIABLE TO DEDUCT TAX FROM THE PAYMENT MADE FOR S UCH VEHICLES UNDER S.194C(2) OF THE ACT ? IN THE INSTANT CASE, THE ASSESSING OFFICER HAS INV OKED THE PROVISIONS OF S.40(A)(IA) TO DISALLOW THE PAYMENTS MADE FOR HIRED LORRIES AS ACCORDING TO HIM, SUCH PAYMENTS REPRESENT PAYMENT TO SUB-CONTRA CTORS LIABLE FOR TDS UNDER S.194C(2) OF THE ACT AND THE ASSESSEE HAS FAI LED TO DEDUCT TDS UNDER S.194C(2). SECTION 194C(2) OF THE ACT, WHICH IS RELEVANT IN THIS CONTEXT, READS AS UNDER : ANY PERSON (BEING A CONTRACTOR AND NOT BEING AN IN DIVIDUAL OR AN HUF) RESPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT (HER EAFTER IN THE SECTION REFERRED TO AS THE SUB-CONTRACTOR) IN PURSUANCE OF A CONTRACT WITH THE SUB- CONTRACTOR FOR CARRYING OUT, OR FOR THE SUPPLY OF L ABOUR FOR CARRYING OUT, THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR OR FOR SUPPLYING WHETHER WHOLLY OR PARTLY ANY LABOUR WHICH THE CONTRACTOR HAS UNDERTAKEN TO SUPPLY SHALL, AT THE TIME OF CREDIT O F SUCH SUM TO THE ACCOUNT OF THE SUB-CONTRACTOR OR AT THE TIME OF PAYMENT THE REOF IN CASH OR BY ISSUE OF A CHEQUE OR DRAFT OR BY ANY OTHER MODE, WHICHEVE R IS EARLIER, DEDUCT AN AMOUNT EQUAL TO ONE PER CENT OF SUCH SUM AS INCOME- TAX ON INCOME COMPRISED THEREIN.' 8.1 ACCORDING TO OUR UNDERSTANDING, S. 194C{2) IS ATTRACTED IF ALL THE FOLLOWING CONDITIONS ARE SATISFIED: (A) THE ASSESSEE SHOULD BE A CONTRACTOR. 8 (B) THE ASSESSEE, IN HIS CAPACITY AS A CONTRACTOR, SHOULD ENTER INTO A CONTRACT WITH A SUB-CONTRACTOR FOR CARRYING OUT THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR. (C) THE SUB-CONTRACTOR SHOULD CARRY OUT THE WHOLE OR ANY PART OF THE WORK UNDERTAKEN BY THE CONTRACTOR. (D) PAYMENT SHOULD BE MADE FOR CARRYING OUT THE WH OLE OR ANY PART OF THE WORK. 8.2. AS STATED EARLIER, THE ASSESSEE HEREIN IS A TR ANSPORT CONTRACTOR AND HAS ENTERED INTO AN AGREEMENT WITH PARTIES WHEREBY THE ASSESSEE UNDERTOOK TO TRANSPORT BITUMEN TO VARIOUS POINTS AS PER THEIR DIRECTIONS. ACCORDING TO THE ASSESSEE, THE LORRIES USED FOR THE SAID PURPOSE ARE SPECIALLY DESIGNED WITH PROPER HEATING ARRANGEMENTS . THE CLAIM OF THE ASSESSEE IS THAT SINCE IT DID NOT HAVE REQUIRED NUM BER OF LORRIES, IT HAD TO HIRE LORRIES FROM OTHERS WHO SIMPLY PLACED THE VEHI CLES AT THE DISPOSAL OF THE ASSESSEE. THE ASSESSEE ALONE, UNDER ITS CONTRO L AND SUPERVISION, HAS EXECUTED WHOLE OF THE CONTRACT. ACCORDING TO THE A SSESSEE, THE INDIVIDUAL LORRY OWNERS HAVE NOT CARRIED OUT ANY PART OF THE W ORK UNDERTAKEN BY THE ASSESSEE. 8.3 (I) THE FOLLOWING ARE THE BASIS OF THE AO TO C OME TO THE CONCLUSION THAT THE PAYMENT MADE FOR HIRED LORRIES IS A SUB-CO NTRACT PAYMENT, LIABLE FOR TDS UNDER S. 194C(2} OF THE ACT: (A) THE ASSESSEE HAS ENTERED INTO A CONTRACT WITH THE PARTIES AND ALL PAYMENTS ARE MADE TO THE ASSESSEE ONLY. (B) THE ASSESSEE IS CLAIMING THE TOTAL TDS CREDIT FOR THE GROSS RECEIPT WHERE TDS WAS DEDUCTED. (C) THE LORRY OWNERS ARE IN NO WAY CONNECTED WITH THE PARTY WHO GIVES WORK TO THE ASSESSEE. AS THE ASSESSEE COULD NOT MA NAGE THE WORK WITH ITS OWN LORRIES, IT TOOK ON HIRE LORRIES BELONGING TO O THERS ON SUB-CONTRACT TO CARRY OUT ITS CONTRACT WORK, FOR WHICH PAYMENT IS M ADE BY THE ASSESSEE. THERE IS NO CONTACT OR RELATIONSHIP OF ANY KIND BET WEEN THE CLIENT (PRINCIPAL COMPANY) AND THE SUB-CONTRACTOR. (II) LEARNED CIT(A) HAS CONFIRMED THE ORDER OF THE AO WITH FOLLOWING REASONINGS : (A) THE TANKER LORRIES TAKEN ON HIRE WERE UTILIZED FOR THE PURPOSES OF THE BUSINESS OF THE EXECUTION OF THE CONTRACT DURIN G THE ENTIRE CONTRACT PERIOD. . (B) THE TANKER LORRY OWNERS WERE PAID ONLY AFTER R ECEIPT OF THE BILLS FROM THE CONTRACTEES, AFTER RETAINING THE COMMISSIO N. 9 (C) THE TANKER LORRY OWNERS ENABLED THE APPELLANT TO EXECUTE THE CONTRACT WORK. 8.4 THE ASSESSEE HAS PLACED A COPY OF WORK ORDER D T. 12 TH FEB., 2005 ISSUED BY A COMPANY NAMED 'RBM-PATI JOINT VENTURE'. WE HAVE GONE THROUGH THE SAID WORK ORDER AND NOTICE THE FOLLOWIN G POINTS: (A) THE SCOPE OF WORK INCLUDES LOADING OF BITUMEN 60/70 AT VIZAG, TRANSPORTATION AND DELIVERING AT RBMP CAMP SITE AT 56 KMS. AND 35 KMS. ON NH-6. AS SUCH THREE TYPES OF WORK ARE INCLUDED IN THE SCOPE OF WORK. (B) TANKER LORRY SHALL HAVE PROPER HEATING ARRANGE MENT. THE COMPANY RESERVES THE RIGHT TO ARRANGE ANY OTHER MEANS OF TR ANSPORTATION IN CASE OF NON-PLACEMENT/DELAY IN PLACEMENT OF LORRY. ANY EXT RA PAYMENT MADE FOR EXECUTION OF SUCH WORK WILL BE RECOVERED FROM THE A SSESSEE. (C) THE ASSESSEE SHALL NOT ENGAGE AND/OR ALLOW ITS PERSONNEL IN ANY FRAUDULENT ACTIVITY IN PERFORMING THE WORK ORDER. THE COMPANY IS AT LIBERTY TO DEDUCT ANY REASONABLE AMOUNT, IF ANY FRA UD OR CHEATING IS DISCOVERED. (D) THE ASSESSEE, IN ANY CIRCUMSTANCE, SHOULD NOT DIVULGE OR MAKE PUBLIC, IN ANY WAY, ANY OF THE BUSINESS TRANSACTION S TO OTHER PARTIES. (E) IN THE EVENT OF ANY UNREASONABLE DELAY OR IF T HE CONSIGNMENT IS NOT DELIVERED, THE COMPANY SHALL BE ENTITLED TO DEDUCT ANY SUM AND/OR THE VALUE OF CONSIGNMENT FROM THE OUTSTANDING BILLS OF THE ASSESSEE. NO CLAIM WHATSOEVER DUE TO IDLING OF LABOUR, EQUIPMENT, VEHI CLES AND ANY OTHERS SHALL BE ENTERTAINED BY THE COMPANY UNDER ANY CIRCU MSTANCE. . (F) THE ASSESSEE SHALL COMPLY WITH ALL EXISTING AC TS, RULES, REGULATIONS ETC. RELATING TO LABOUR, TRAFFIC AND TRANSPORT. IN CASE OF ANY LIABILITY ARISING TO THE COMPANY AS PRINCIPAL EMPLOYER DUE TO FAILURE, NEGLIGENCE OR/AND ACCIDENT BY TRANSPORTER, THE SAME SHALL BE R ECOVERABLE FROM THE ASSESSEE. THE ABOVE STRINGENT CLAUSES SUGGEST THAT THE ASSESS EE IS SOLELY RESPONSIBLE FOR ALL THE ACTS AND DEFAULTS COMMITTED BY THE ASSE SSEE AND/OR ITS EMPLOYEES . 8.5 IT IS NOT ESTABLISHED BY THE REVENUE THAT OTHE R LORRY OWNERS, FROM WHOM THE VEHICLES WERE HIRED, HAVE ALSO BEEN FASTEN ED WITH ANY OF THE ABOVESAID LIABILITIES. IN A SUB-CONTRACT, A PRUDEN T CONTRACTOR WOULD INCLUDE ALL THE LIABILITY CLAUSES IN THE AGREEMENT ENTERED INTO BY HIM WITH THE SUB-CONTRACTOR. THE ASSESSEE HAS ALSO CLAIMED B EFORE THE TAX AUTHORITIES THAT THE RESPONSIBILITY IN THE WHOLE PR OCESS LIES WITH IT ONLY. 10 THOUGH THE PASSING OR LIABILITY IS NOT THE ONLY CRI TERIA TO DECIDE ABOUT THE EXISTENCE OF SUB-CONTRACT, YET THIS CONTENTION OF T HE ASSESSEE READ WITH THE LIABILITY CLAUSES OF THE WORK ORDER, CITED ABOVE, S UPPORTS ITS SUBMISSION THAT THE INDIVIDUAL VEHICLE OWNERS ARE SIMPLE HIRER S OF THE VEHICLES. 8.6 AS PER THE PROVISIONS OF S. 194C(2), AS EXPLAI NED IN PARA 8.1 SUPRA, THE SUB-CONTRACTOR SHOULD CARRY OUT THE WHOLE OR AN Y PART OF THE WORK UNDERTAKEN BY THE ASSESSEE. THE DICTIONARY MEANING OF THE WORDS 'CARRY OUT' IS TO 'CARRY INTO PRACTICE'; 'TO EXECUTE'; 'TO ACCOMPLISH'. IT SIGNIFIES A POSITIVE INVOLVEMENT IN THE EXECUTION OF THE WHOLE OR ANY PART OF THE MAIN WORK BY SPENDING HIS TIME, MONEY, ENERGY, ETC. AND FURTHER TAKING THE RISKS IN CARRYING ON THE SAID ACTIVITY. IN THE INSTANT C ASE, THERE IS NO MATERIAL TO SUGGEST THAT THE OTHER LORRY OWNERS INVOLVED THEMSE LVES IN CARRYING OUT ANY PART OF THE WORK UNDERTAKEN BY THE ASSESSEE BY SPENDING THEIR TIME, ENERGY AND BY TAKING THE RISKS ASSOCIATED WITH THE MAIN CONTRACT WORK. IN THE ABSENCE OF THE ABOVE SAID CHARACTERISTICS ATTAC HED TO A SUB-CONTRACT IN THE INSTANT CASE, THE PAYMENT MADE TO THE LORRY OWN ERS STANDS AT PAR WITH THE PAYMENTS MADE TOWARDS SALARIES, RENT. ETC. HEN CE THE REASONING OF THE TAX AUTHORITIES, WHICH IS STATED IN PARA 8.3 SUPRA, TO HOLD THAT THE PAYMENT MADE FOR HIRED VEHICLES IS A SUB-CONTRACT PAYMENT, IN OUR OPINION, IS NOT CORRECT END NOT BASED ON RELEVANT CONSIDERATIONS. HENCE, IN OUR CONSIDERED OPINION, IT CANNOT BE SAID THAT THE PAYM ENTS MADE FOR HIRED VEHIC1ES WOULD FALL IN THE CATEGORY OF PAYMENT TOWA RDS A SUB-CONTRACT WITH THE LORRY OWNERS. IN THAT CASE THE ASSESSEE I S NOT LIABLE TO DEDUCT TAX AT SOURCE, AS PER THE PROVISIONS OF S. 194C(2), ON THE PAYMENTS MADE TO THE LORRY OWNERS FOR LORRY HIRE. CONSEQUENTLY, THE PRO VISIONS OF S. 40(A)(IA) SHALL NOT APPLY TO SUCH PAYMENTS. 8.7 AS WE HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOR THE REASONS STATED ABOVE, IN OUR OPINION, CONSIDERATION OF OTHER CONTENTIONS OF THE ASSESSEE AS WELL AS THE REVENUE IS NOT NECESSAR Y. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. 5. SIMILAR VIEW HAS BEEN TAKEN BY THIS TRIBUNAL IN THE CASE OF GOVIND SINGH, MATHURA VS. ITO, MATHURA IN TDSA NO.13/AGR/2007 FOR THE ASSESSMENT YEAR 2005-06 IN WHICH ALSO THIS TRIBUNAL, AFTER DISCUSSI NG THE PROVISIONS OF SECTION 194C, HAS HELD AS UNDER :- THE CONTENTION OF LD. A.R. IS FOUND TO BE CORRECT. THE ASSESSEE IS THE CONTRACTOR QUA IOCL. THE ASSESSEE HAS TAKEN SO ME VEHICLES ON HIRE, SIMPLICITER, FOR RUNNING OF WHICH THE DRIVERS, THE FUEL AND THEIR MAINTENANCE WAS BEING DONE BY THE ASSESSEE HIMSELF. THE IOCL HAS DEDUCTED TDS OF THE ENTIRE PAYMENT. THERE IS NO FU RTHER CONTRACT BETWEEN THE ASSESSEE AND THESE FIVE PAYEES. IT IS IMMATERI AL IF THE VEHICLES ARE 11 HIRED FOR THE ENTIRE YEAR OR FOR A DAY. THERE IS A SORT OF DRY UNDERSTANDING BETWEEN THE ASSESSEE AND THE OTHER FIVE PAYEES. SO , THE ABOVE SECTION IS NOT ATTRACTED TO THIS CASE. HENCE, WE ARE OF THE C ONSIDERED OPINION THAT WHEN SECTION 194C IS NOT APPLICABLE, THE CONSEQUENT IAL SECTION, I.E., 201(1) AND 201(LA) ARE ALSO NOT APPLICABLE. WE ALL OW THIS GROUND OF APPEAL AFTER SETTING ASIDE THE FINDING OF LD. CIT(A ) AND DELETE/CANCEL THE LEVY UNDER THESE SECTIONS. 6. THE DECISION OF THE CO-ORDINATE BENCH IS BINDING ON US. WE, ACCORDINGLY, RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH, CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUND TAKEN BY THE REVE NUE. 7. WE HAVE ALSO GONE THROUGH THE DECISION OF HONBL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT (TDS) VS. UNITED RICE LAND LTD. (SUPRA) , WHEREIN THE HONBLE COURT HELD AS UNDER : THE ASSESSING OFFICER HAD HELD THE ASSESSEE LIABLE FOR DEDUCTION OF TAX ONLY ON THE ASSUMPTION THAT IT WAS HAVING AGREEMENT WITH THE PARTIES THROUGH WHOM TRUCKS WERE ARRANGED FOR TRANSPORTATION OF GOO DS. HOWEVER, THE COMMISSIONER(APPEALS) HAD RECORDED A FINDING OF FAC T THAT THERE WAS NEITHER ANY ORAL OR WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE TRANSPORTERS FOR CARRIAGE OF GOODS, NOR HAD IT BEEN PROVED THAT ANY SUM OF MO NEY REGARDING FREIGHT CHARGES WAS PAID TO THEM IN PURSUANCE OF A CONTRACT FOR A S PECIFIC PERIOD, QUANTITY OR PRICE. THAT FINDING OF FACT WAS RECORDED BY THE COM MISSIONER (APPEALS) AFTER CONSIDERING THE CERTIFICATES FURNISHED BY THE TRANS PORTERS. THE TRIBUNAL HAD ALSO RECORDED A FINDING OF FACT THAT THE DEPARTMENT HAD NOT CONTROVERTED THE SAID FINDING OF THE COMMISSIONER (APPEALS) EVEN BEFORE I T. WHILE RECORDING THE FINDING OF FACT, THE TRIBUNAL HAD CLEARLY STATED THAT NOTHI NG HAD BEEN BROUGHT ON RECORD BY THE ASSESSING OFFICER TO PROVE THAT THERE WAS AN Y WRITTEN OR ORAL AGREEMENT BETWEEN THE ALLEGED PARTIES FOR CARRIAGE OF THE GOO DS. IN VIEW OF THAT, NO INTERFERENCE WAS CALLED FOR WITH THE FINDING OF FAC T RECORDED BY THE TRIBUNAL. THE APPEAL, BEING WITHOUT MERIT, WAS TO BE DISMISSED. 8. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL AS WELL AS THE DECISION OF HIGH COURT, IN OUR OPINION, NO INTERFERENCE IS CALL ED FOR IN THE ORDER OF CIT(A). EVEN NO CONTRARY DECISION WAS BROUGHT TO OUR KNOWLEDGE BY THE LEARNE D DR WHICH MAY COMPEL US TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE CO-ORDINATE BE NCH. WE CANNOT DISAGREE WITH THE DECISION OF THE CO-ORDINATE BENCH, WHICH IS BINDING ON US. RESP ECTFULLY FOLLOWING THE SAME, WE CONFIRM THE ORDER OF CIT(A) ON THIS ISSUE. THUS, GROUND NO.1 OF REVENUE STANDS REJECTED. 12 9. THE FACTS RELATING TO GROUND NO. 2 ARE THAT THE ASSESSEE HAD SHOWN NET INCOME FROM TRUCKS AT RS.26,56,870/-. THE ASSESSING OFFICER OBSERVED T HAT THE ASSESSEE COULD NOT GIVE DETAILS AND DOCUMENTARY EVIDENCE IN RESPECT OF THE SAID NET INC OME SHOWN BY HIM. HE FURTHER OBSERVED THAT THE DETAILS OF EXPENSES INCURRED ON FINANCE CHARGES , INTEREST ON BORROWED FUNDS AND VEHICLE RUNNING & MAINTENANCE EXPENSES OF TRUCKS WERE ALSO NOT FILED. HE, THEREFORE DISALLOWED 20% OF THE NET INCOME SHOWN AT RS.26,56,870/-, I.E., RS.5, 31,374/-, AS THE NET INCOME AND EXPENSES AS NOTED ABOVE REMAINED UNVERIFIABLE. HE, THEREFORE, A DDED THE SUM OF RS.5,31,374/- TO THE INCOME OF THE ASSESSEE, WHICH WAS RESTRICTED TO 2,65,687/- BY THE CIT(A) IN APPEAL BEFORE HIM. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME ALONGWITH THE ORDERS OF THE TAX AUTHORITIES BELOW. WE NOTED THAT THE ASSESSING OFFICER IN THIS CASE HAS ASKED FOR THE DETAILS AND THE EVIDENCE IN RESPECT OF EXPENSES . IF THE ASSESSEE CLAIMS EXPENDITURE, THE ONUS IS ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE EXP ENDITURE SO INCURRED. IN THE ABSENCE OF THE DETAILS BEING GIVEN BY THE ASSESSEE, THE ASSESSING OFFICER DISALLOWED 20% OF THE NET INCOME AS EXPENDITURE. BUT WHEN THE MATTER WENT BEFORE THE CI T(A), THE CIT(A) REDUCED THE DISALLOWANCE TO 10% OF THE NET INCOME FROM THE TRUCK BEING UNVER IFIABLE NATURE OF INCOME. THE ASSESSING OFFICER AS WELL AS THE CIT(A) BOTH HAVE DISALLOWED PART OF THE INCOME. THIS, IN OUR OPINION, CANNOT BE THE BASIS FOR DISALLOWANCE. IF ANY DISALL OWANCE WAS TO BE MADE THAT HAS TO BE MADE OUT OF THE EXPENDITURE INCURRED BY THE ASSESSEE ONLY ON THE BASIS THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE EXPENDITURE BEING INCURRED FOR T HE PURPOSE OF BUSINESS. THE DISALLOWANCE HAS NOT BEEN MADE ON SUCH BASIS. WE, THEREFORE, DELETE THE DISALLOWANCE. THUS, GROUND NO. 2 IS DISMISSED. ITA NO. NO. 307/AGRA/2009 (2006-07): 13 11. GROUND NO. 1 AND 2 IN THIS APPEAL AND THE ARGUM ENTS ADVANCED BY BOTH THE PARTIES ON THESE GROUNDS ARE IDENTICAL TO GROUND NO. 1 AND 2 I N ITA NO. 306/AGRA/2009 IN THE CASE OF SHRI VIPIN ARORA. THEREFORE, KEEPING IN VIEW OUR FINDING S RECORDED WHILE DECIDING GROUND NO. 1 & 2 IN ITA NO. 306/AGRA/2009, BOTH THE THESE GROUNDS RA ISED IN THIS APPEAL ARE DISMISSED. ITA NO. NO. 308/AGRA/2009 (2006-07): 12. THE SOLITARY GROUND RAISED IN THIS APPEAL IS I DENTICAL TO THE GROUND NO. 1 IN ITA NO. 306/AGRA/2009 IN THE CASE OF SHRI VIPIN ARORA, HENC E, THE SAME DECISION WILL FOLLOW IN THIS APPEAL ALSO. 13. IN CROSS OBJECTION, FILED BY ASSESSEE IN ITA NO . 308/AGRA/2009, THE ASSESSEE HAS TAKEN FOLLOWING GROUND : BECAUSE DURING THE YEAR THE ASSESSEE OWNED 5 TRUCK S. THE TOTAL INCOME FROM ALL TRUCKS AS PER SECTION 44AE OF THE INCOME T AX ACT, 1961 COME TO RS.1,26,000/- AS PER THE LETTER DATED 21.7.2008 ON RECORD OF THE ASSESSING OFFICER WHICH AS PER BOOKS THE ASSESSEE HAS SHOWN NET INCOM E OF RS.1,79,945/- AFTER CHARGING THE DEPRECIATION IN THE BOOKS (WHICH IS DE EMED AS ALLOWED UNDER SECTION 44AE OF THE INCOME TAX ACT). HENCE, INCOME RETURNED FROM ALL TRUCKS RS.1,79,945/- WAS MORE THAN INCOME COMPUTED AS PER SECTION 44AE OF THE INCOME TAX ACT. THE AUTHORITIES BELOW HAVE ERRED IN MAKING THE ADDITION OF RS.10,10,055/- IN RESPECT OF DEPRECIATION ON THE RE TURNED INCOME SHOWN AT RS.1,79,945/- WHICH WAS ALREADY MORE THAN INCOME CO MPUTED U/S. 44AE OF THE INCOME TAX ACT. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY CONSIDERED THE SAME. WE NOTED THAT THE ASSESSEE WAS OWNING FIVE TRUCKS DURING THE ASSE SSMENT YEAR AND AS PER THE PROVISIONS OF SECTION 44AE, THE INCOME FROM FIVE TRUCKS @ RS.3500 /- PER MONTH EACH WILL COME TO RS.1,26,000/-. THE ASSESSEE HAS RETURNED INCOME FRO M THESE TRUCKS AT RS.1,79,945/- WHICH IS MUCH MORE THAN THE INCOME AS MAY BE COMPUTED IN ACC ORDANCE WITH EH PROVISIONS OF SECTION 14 44AE. WE NOTED THAT THE ASSESSING OFFICER HAD DISAL LOWED THE DEPRECIATION TO THE ASSESSEE MERELY ON THE BASIS THAT THE ASSESSEE IS DERIVING I NCOME FROM VARIOUS SOURCES AND IT IS WRONG TO CLAIM BENEFIT OF SECTION 44AE SEPARATELY ON THE PAR T OF THE ASSESSEE WITH OTHER INCOME FORMING PART OF INCOME FORMING PART U/S.28 OF THE INCOME-TA X ACT, 1961. THE ASSESSEE HAS SHOWN THE GROSS RECEIPT AT RS.11,90,000/- AND CLAIMED THE DEP RECIATION AT RS.10,10,055/-. THE NET INCOME FROM TRUCK IS SHOWN AT RS.179945/- WHILE AS PER PRO VISIONS OF SECTION 44AE, SINCE THE ASSESSEE WAS OWNING FIVE TRUCKS, THE INCOME WILL BE ONLY RS. 1,26,000/-. THE INCOME RETURNED BY THE ASSESSEE IS MUCH MORE THAN THE INCOME AS MAY BE COM PUTED U/S. 44AE. IT IS NOT THE CASE WHERE THE ASSESSEE HAS COMPUTED THE INCOME FROM THE TRUCK S AT RS.179945/- IN ACCORDANCE WITH THE PROVISIONS OF SECTION 44AE. IF THE ASSESSEE WOULD H AVE RETURNED THE INCOME FROM THE TRUCKS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 44AE, THE ASSESSEE WOULD HAVE NOT BEEN ENTITLED FOR DEPRECIATION IN VIEW OF SPECIFIC PROVISIONS GIVEN U /S. 44AE(3). THIS IS NOT THE CASE OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT APPRECIATED THE FACTS OF THE CASE IF THE INCOME HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE I NCOME-TAX ACT UNDER THE HEAD INCOME FROM BUSINESS. WE ARE OF THE VIEW THAT THE ASSESSEE IS E NTITLED FOR DEPRECIATION. WE ACCORDINGLY DELETE THE DISALLOWANCE. THUS, THIS GROUND IS ALLOWED. AS A RESULT, THE CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED. 15. IN THE RESULT, BOTH THE APPEALS FILED BY THE RE VENUE ARE DISMISSED AND THE CROSS OBJECTION FILED BY ASSESSEE IS ALLOWED. PRONOUNCED ON 17.06.11 SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 TH JUNE, 2011 *AKS/- 15 COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY
