ITO, Nangal V. M/s J.K. Road Lines, Ropar

ITA 343/CHANDI/2015

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2434 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R R THAKUR
• Keywords: Audit objection; Additional evidence; Non-deduction of tax
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO. 343/CHD/2015 ASSESSMENT YEAR: 2008-09 THE ITO, VS. M/S J.K. ROAD LINE, WARD 1(1), TEHSIL NANGAL, DISTT. ROPAR NANGAL PAN NO. AAFFJ0619R (APPELLANT) (RESPONDENT) APPELLANT BY : MS. RAJINDER KAUR RESPONDENT BY : SH. R.R. THAKUR DATE OF HEARING : 17.12.2015 DATE OF PRONOUNCEMENT : 08.01.2016 . ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER OF CIT(A)- 1, CHANDIGARH DATED 2.1.2015 RELATING TO ASSESSMENT YEAR 2008-09 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLO WING GROUNDS:- 1. THE ORDER OF THE LEARNED CIT(A) IS ERRONEOUS & CONT RARY TO FACTS &. LAW. 2. WHETHER ON FACTS AND CIRCUMSTANCES THE LD.CIT(A) IS JUSTIFIED IN DELETING THE ADDITION OF RS. 80,47,034/- MADE ON ACCOUNT OF HIRE CHARGES FOR NON-DEDUCTION OF TAX AT SOURCE U/S 40(A)(IA) OF THE ACT BY SIMPLY ACCEPTING THE ASSESSEE'S CONTE NTION THAT 2 FORM NO. 15-1/15-J WAS SUBMITTED TO THE CIT CHANDI GARH WITHOUT CONFRONTING THE APPELLANT ON THE CONTRADICTORY SUBMISSION MADE BEFORE THE LD. CIT(A) THAT THE APPELLANT WAS NOT REQUIRED TO FILE FOR M NO. 15- 1/15-J AND THEREBY WITHOUT ASCERTAINING THE REASONS FOR WHICH THE SAID FORMS WERE PURPORTEDLY FILED BY THE APPELLANT. 3. WHETHER ON FACTS AND CIRCUMSTANCES THE LD. C1T(A) I S JUSTIFIED IN DELETING THE ADDITION OF RS. 80,47,034 /- MADE ON ACCOUNT OF HIRE CHARGES FOR NON DEDUCTION OF TAX AT SOURCE U/S 40(A}(IA) OF THE ACT BY SIMPLY ACCEPTING THE ASSESS EE'S CONTENTION THAT FORM NO. 15-I/15-J WAS SUBMITTED TO THE CIT, CHANDIGARH. 4. WHETHER ON FACTS AND CIRCUMSTANCES THE LD. CIT(A) I S JUSTIFIED IN DELETING THE ADDITION OF RS.80,47,034/ - MADE ON ACCOUNT OF HIRE CHARGES FOR NON DEDUCTION OF TAX AT SOURCE U/S 40(A)(IA) OF THE ACT BY ALLOWING THE ASS ESSEE THE BENEFIT OF THE JUDGEMENT OF HON'BLE ITAT, AHMEDABAD IN THE CASE OF VALIBHAI KHANBAI MANKAD (ITA NO.228/AHD/20Q9, DATED 29.04.2011)WITHOUT APPRECIAT ING THE FACTS THAT IN THAT CASE THE ONLY DISPUTE WAS A DATE OF SUBMISSION OF FORM 15-3 WHEREAS, IN THE INSTANT CAS E THE SUBMISSION OF THE SAID FORM ITSELF IS NOT PROVED. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E ASSESSEE IS A PARTNERSHIP FIRM DEALS IN TRANSPORT BUSINESS. THE ASSESSEE SUBM ITTED ITS RETURN OF INCOME OF THE YEAR UNDER CONSIDERATION ON 30.9.2008 DECLAR ING TOTAL INCOME AT RS. 11,842/-. THE CASE OF THE ASSESSEE WAS SELECTED IN SCRUTINY THROUGH CASS FOR ASSESSMENT U/S 143(3) OF THE INCOME-TAX ACT, 1961 ( IN SHORT 'THE ACT') WAS FRAMED AT AN INCOME OF RS. 16,946/- VIDE ORDER DATE D 14.10.2000. SUBSEQUENTLY A NOTICE U/S 148 OF THE ACT DATED 14.3 .2013 WAS ISSUED TO THE ASSESSEE ON THE BASIS OF AUDIT OBJECTION RAISED BY AUDIT PARTY FOR RE- ASSESSMENT OF ALREADY CONCLUDED ASSESSMENT. THE AS SESSEE FILED OBJECTIONS TO 3 THE ISSUANCE OF NOTICE U/S 148 OF THE ACT BUT THE A SSESSING OFFICER REJECTED THE OBJECTIONS OF THE ASSESSEE VIDE HIS ORDER DATED 17.1.2014. THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3) READ WITH SECTION 147 OF THE ACT ON 31.1.2014 AND ADDED A SUM OF RS. 80,64,030/- TO THE TOTAL INCOME ON ACCOUNT OF DISALLOWANCE OF DEDUCTION ON HIRE CHARGES CLAIM ED IN THE PROFIT AND LOSS ACCOUNT FOR NON DEDUCTION OF TDS. 4. ON APPEAL THE CIT(A) DELETED THE ADDITION OBSERV ING AS UNDER:- 5.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. COUNSEL. THE ADDITIONAL EVIDENCES FILED BY THE APPE LLANT IN THE FORM OF FORM NO. 15-J ACCOMPANIED BY FORMS NO. 15-1 AND PROOF OF SENDING THE SAME BY POST TO COMMISSIONER O F INCOME TAX WERE FORWARDED TO THE ASSESSING OFFICER FOR COM MENTS AND THE ASSESSING OFFICER HAS SUBMITTED VIDE REPLY DATED 01.12.2014 THAT THE UPC RECEIPT OF THE POSTAL DEPAR TMENT DATED 08.04.2008 WAS NOT VERIFIABLE FROM HIS OFFICE . THE ASSESSING OFFICER HAS ALSO CONTENDED THAT THE GROUN D OF ABSENCE OF THE ACCOUNTANT BEING OUT OF THE COUNTRY WAS NOT TAKEN IN THE ASSESSMENT PROCEEDINGS. 5.3.1 THE ARGUMENT OF THE ASSESSING OFFICER THAT FORMS NO. 15-1 SHOULD HAVE BEEN SUBMITTED AT THE TIME OF ORIGINAL ASSESSMENT IS WELL TAKEN, BUT WHETHER THE THEN ASSE SSING OFFICER HAD ASKED FOR THE SAME IS NOT KNOWN. THE AS SESSMENT HAS BEEN REOPENED BECAUSE THE THEN ASSESSING OFFICE R HAD NOT SPECIFICALLY ASKED FOR FORMS NO. 15-1. BE AS IT M AY, ON THE BASIS OF THE EVIDENCE PRODUCED I.E. THE PASSPO RT, IT IS EVIDENT THAT SH. ROHIT SHARDA, THE ACCOUNTANT O F THE APPELLANT FIRM WAS AWAY FROM THE COUNTRY, WHEN THE ASSESSMENT PROCEEDINGS WERE GOING ON AND THIS COULD HAVE BEEN THE REASON FOR NON PRODUCTION OF FORM NO.15-1 BEFORE THE ASSESSING OFFICER. THUS, THE APPELLANT WAS PREV ENTED BY SUFFICIENT CAUSE FROM. PRODUCING THESE DOCUMENTS B EFORE THE ASSESSING OFFICER AND SINCE THESE ARE RELEVANT TO T HE GROUNDS 4 OF APPEAL, THE SAME ARE ADMITTED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. 5.3.2 THE APPELLANT HAS PRODUCED EVIDENCE THAT IT HAD SENT FORM NO. 15-J ALONGWITH FORMS NO.15-1 BY POST (UPC) TO COMMISSIONER OF INCOME TAX, CHANDIGARH. THE OBJECT ION OF THE ASSESSING OFFICER IS THAT THIS EVIDENCE IS NOT VERIFIABLE FROM HIS OFFICE, BUT THIS OBJECTION IS NOT RELEVANT , SINCE THE VERIFICATION WAS REQUIRED TO BE MADE FR OM THE OFFICE OF CONCERNED COMMISSIONER OF INCOME TAX, W HICH HAS NOT BEEN DONE. BE AS IT MAY, SINCE THE APPELLANT HAD FILED FORM NO. 15-J IN THE OFFICE OF COMMISSIONER OF INC OME TAX, CHANDIGARH BEFORE THE DUE DATE AND SO PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WILL NOT BE APPLICABLE. IN THE PASSING, IT MAY ALSO BE MENTIONED THAT HON'BLE ITAT, AHMEDABAD IN THE CASE OF VALIBHAI KHANBAI MANKAD VIDE ORDER DATED 29.04.2011 IN 1TA NO.2228/AHD/2009, HAD HELD THAT O NCE TDS IS NOT MADE AND PAYMENT IS RELEASED TO SUBCONTR ACTOR THEN FOR MERELY NOT FURNISHING FORM NO. 15-J, THE A SSESSEE CANNOT BE COMPELLED TO DEDUCT TAX FROM THE PAYMENT, WHICH IS ALREADY RELEASED. 5.3.3 IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF HIRE CHARGES FO R NON DEDUCTION OF TAX AT SOURCE OF RS. 80,47,034/- IS DE LETED. GROUND OF APPEAL NO. 4 IS ALLOWED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. IT IS AN AD MITTED FACT THAT THE ASSESSEE SUBMITTED FORM NO. 15-J TO COMMISSIONER OF INCOME TAX, CHANDIGARH (ALONG WITH FORM NO. 15-I) ON 8.4.2008. THESE DOCUMENTS WERE FILED BEFORE THE CIT(A) AS ADDITIONAL EVIDENCE WHIC H WERE ADMITTED BY THE CIT(A) UNDER RULE 46A OF THE INCOME TAX RULES, 196 2. THERE IS NO DISPUTE REGARDING THE ADMISSION OF ADDITIONAL EVIDENCE SUBM ITTED BY THE ASSESSEE BEFORE THE CIT(A). THERE IS NO DISPUTE THAT ALL THE INDIVIDUAL TRUCK OWNERS WERE HAVING ONE OR TWO TRUCKS AND THEY WERE POSSESS ING PAN NOS. AND WERE 5 ALSO REGULARLY ASSESSED TO TAX, SO THE ASSESSEE WAS NOT REQUIRED TO FILE FORM NO. 15-I/15-J. IT IS OBSERVED THAT THE QUERY RAISED TO THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS THA T AS TO WHETHER TAX HAD BEEN DEDUCTED BY THE ASSESSEE OUT OF THE PAYMENTS M ADE TO TRUCK OWNERS, WHICH WERE HIRED DURING THE YEAR UNDER CONSIDERATIO N. THE ASSESSEE PROVIDED TRUCK OWNERS WISE LIST, WHICH HAS BEEN REPRODUCED B Y THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. IT IS ALSO OBSERVED THAT THE ASSESSEE HAD FORWARDED FORM NO. 15-J ALONG WITH 15-I BY POST TO COMMISSION ER OF INCOME TAX, CHANDIGARH. IT IS NOT THE CASE OF THE REVENUE THAT THE COMMISSIONER OF INCOME TAX, CHANDIGARH HAS NOT RECEIVED FROM NO. 15 -J AND FORM NO. 15-I SENT BY THE ASSESSEE. THUS, IT IS CLEAR THAT THE ASSESSEE HAD SUBMITTED FORM NO. 15-J IN THE OFFICE OF COMMISSIONER OF INCOME TA X BEFORE THE DUE DATE AND THEREFORE, PROVISIONS OF SECTION 40(A)(IA) OF THE A CT ARE NOT ATTRACTED. CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) AND ACCOR DINGLY, WE CONFIRM THE SAME. 6. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01.2016 SD/- SD/- (ANNAPURNA MEHROTRA) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED 8 TH JANUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR