M/s. Nitin Roadlines P. Ltd., RAJKOT-GUJARAT V. The Income Tax Officer, TDS-1, RAJKOT-GUJARAT

ITA 464/RJT/2011

• Counselvise Citation: 46424914 RSA 2011
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-05-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 08-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: WRITTEN SUBMISSIONS
• Section: 194C; 201(1)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM ITA NO. 464/RJT/2011 / ASSESSMENT YEAR 2001-02 M/S. NITIN ROADLINES PVT. LTD. V. ITO, TDS-1 C/O. K.K. MARKETING, RAJKOT 26/27, J. P. TOWER, TAGORE ROAD, RAJKOT. TAN: RKTNO0319E. . DATE OF HEARING : 24-05-2012. DATE OF PRONOUNCEMENT : 01-06-2012 ASSESSEE BY: WRITTENSUBMISSIONS REVENUE BY: SHRI M. K. SINGH, D.R / // / ORDER . .. . . . . . /D. K. SRIVASTAVA: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 06-09-2011, ON THE FOLLOWING GROUNDS:- 1. THE HBLE CIT(A)-XX, AHMEDABAD ERRED IN PASSING THE ORDER U/S. 201(1) & 201(1A) FOR A.Y. 2001-02. 2. THE HBLE CIT(A) HAVE NOT CONSIDERED THE FACTS O F THE CASE AND HAVE PASSED THE ORDER VERIFICATION. THE RULE OF AGGREGA TION OF RS.50,000/= PER ANNUM WAS NOT APPLICABLE IN THE YEAR 2001-02 BUT IT WAS APPLICABLE WITH EFFECT FROM 01-10-2004 AND THEREFORE, THE ORDER OF CIT(A) SHOULD BE CANCELLED. 3. YOUR APPELLANT RESERVE THEIR RIGHTS TO ADD AMEND AND ALTER THE ABOVE GROUNDS OF APPEALS AND STATEMENT OF FACTS AS AND WH EN THE OCCASION ARISES AND WILL BE ENTITLED TO SUBMIT FURTHER DOCUMENTS. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANS PORTATION. THE AO NOTICED FROM THE RECORDS MAINTAINED IN THE DEPARTMENT THAT THE ASSESSEE HAD MADE PAYMENTS EXCEEDING RS.20,000/- WITHOUT DEDUCTION AT SOURCE AS REQUIRED BY SEC.194C OF THE INCOME-TAX ACT. BY HIS ORDER DATED 28-03-2005 PASSED U/S.201(1)/(1A), THE ASSESSING OFFICER TREATED THE ASSESSEE TO BE IN DEFAULT TO THE EXTENT OF TAX THAT WAS REQUIRED TO BE DEDUCTED AT S OURCE BUT WAS NOT DEDUCTED IN TERMS OF SECTION 194C AND ALSO LEVIED INTEREST THER EON. THE SAID ORDER PASSED BY THE AO WAS SUBJECT MATTER OF THE APPEAL FIRSTLY BEF ORE THE CIT(A) AND THEREAFTER BEFORE THIS TRIBUNAL. THE MATTER WAS ULTIMATELY SET ASIDE AND RESTORED BY THIS TRIBUNAL TO THE FILE OF THE AO TO EXAMINE THE CASE OF THE ASSESSEE IN THE LIGHT OF THE DETAILS FURNISHED AND RECORD A SPECIFIC FINDING AS TO WHETHER THE PAYMENTS MADE BY 2 ITA 464/RJT/2011 THE ASSESSEE ACTUALLY EXCEEDED RS.20,000/- AND ALSO AS TO WHETHER THERE WAS ANY CONTRACT BETWEEN THE ASSESSEE AND THE PARTIES PURSU ANT TO WHICH THE AFORESAID PAYMENTS WERE MADE. 3. IN COMPLIANCE WITH THE DIRECTIONS GIVEN BY THIS TRIBUNAL, THE ASSESSING OFFICER HAS NOW PASSED A FRESH ORDER ON 29-12-2008 U/S 201( 1)/(1A) BY WHICH THE ASSESSING OFFICER HAS TREATED THE ASSESSEE TO BE IN DEFAULT TO THE EXTENT OF RS.1,13,378/- BEING THE AMOUNT WHICH WAS REQUIRED T O BE DEDUCTED AT SOURCE BUT WAS NOT DEDUCTED AND ALSO LEVIED INTEREST AMOUNTING TO RS.71,318/- THEREON. THE ASSESSING OFFICER HAS ALSO GIVEN THE DETAILS OF THE PARTIES TO WHOM PAYMENTS EXCEEDING RS.20,000/- WERE MADE TOGETHER WITH DATES OF PAYMENTS. 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE A PPEALED BEFORE THE CIT(A). THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO W ITH THE FOLLOWING OBSERVATIONS:- 3.2 DURING THE YEAR, APPELLANT PAID FRIGHT CHARGES OF RS.1,44,11,997/- TO VARIOUS TRUCK-OWNERS. IN THE IMPUGNED ORDER (PASSED CONSEQUENT ON RAJKOT TRIBUNAL RESTRING THE MATTER BACK TO THE AO), AO VI DE ANNEXURE TO IMPUGNED ORDER SEGREGATED PAYMENTS EXCEEDING RS.20,000/- MAD E BY APPELLANT; WORKED OUT THE TOTAL OF SUCH PAYMENTS TO RS.1,03,07 ,126/-; LEVIED THE TAX DEDUCTIBLE OF RS.1,13,378/- AND INTEREST THEREON OF RS.71,318/- TOTALING TO RS.1,84,696/- (AS AGAINST TAX OF RS.1,58,532/- AND INTEREST OF RS.1,00,142/- TOTALING TO RS.2,58,674/- LEVIED IN THE FIRST ROUND ). 3.3 CONTENTIONS OF THE LEARNED AR ARE TWOFOLD. FIR ST IS THAT THERE WAS NO AGREEMENT WITH THE TRANSPORTERS. IN THIS CONNECTION , IT IS SEEN THAT THE SAME TRANSPORTERS WERE EMPLOYED MORE THAN ONCE BY APPELL ANT. HENCE AOS OBSERVATION THAT ORAL CONTRACT CAN BE PRESUMED STAN DS TO REASON. SECOND LIMB OF ARGUMENT IS THAT PAYMENT PER TRIP DID NOT E XCEED RS.20,000/-, THOUGH THE PAYMENTS AT A TIME EXCEEDED RS.20,000/-. 3.4 WHAT MATTERS IS THE AMOUNT CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID. HENCE, IRRESPECTIVE OF THE AMOUNT OF FREIGHT PAID PER TRIP, ONCE THE PAYMENT EXCEEDS RS.20,000/-, ONE IS LIABLE TO DEDUC T TAX. HENCE, I DO NOT SEE ANY INFIRMITY IN THE ACTION OF THE AO. THIS GRO UND OF APPEAL IS DISMISSED. 5. AGGRIEVED BY THE ORDER PASSED BY THE CIT(A), THE ASSESSEE IS NOW IN APPEAL BEFORE THIS TRIBUNAL. NEITHER THE ASSESSEE NOR ITS REPRESENTATIVE HAS ENTERED APPEARANCE BEFORE US. HOWEVER WRITTEN SUBMISSIONS H AVE BEEN FILED BY SHRI NAVIN PANDYA, CHARTERED ACCOUNTANTS ON BEHALF OF THE ASSE SSEE WHICH CONTAINS THE SUBMISSIONS SIMILAR TO THOSE MADE BEFORE THE AO AND THE CIT(A). IN THE WRITTEN SUBMISSIONS, THE CASE OF THE ASSESSEE IS THAT THERE IS NO CONTRACT BETWEEN THE ASSESSEE AND THE PARTIES TO WHOM PAYMENTS WERE MADE AND THEREFORE THE PROVISIONS OF SEC.194C WERE NOT APPLICABLE. IT IS ALSO THE CASE OF THE ASSESSEE THAT 3 ITA 464/RJT/2011 FREIGHT FOR EACH TRIP WORKED OUT TO LESS THAN RS.20 ,000/- AND THEREFORE THE PROVISIONS OF SEC.194C WERE NOT APPLICABLE FOR THIS REASON ALS O. IT IS ALSO THE CASE OF THE ASSESSEE THAT THE PROVISION OF SEC.194C HAS BEEN AM ENDED W.E.F. 01-06-2005 BY WHICH TAX IS NOT REQUIRED TO BE DEDUCTED AT SOURCE WHERE THE SUB-CONTRACTOR IS AN INDIVIDUAL OWNING NOT MORE THAN TWO GOODS CARRIAGE AT ANY TIME DURING THE YEAR. 6. IN REPLY, THE LD. DEPARTMENTAL REPRESENTATIVE SU PPORTED THE ORDER PASSED BY THE AO AND THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSING OF FICER HAS GIVEN PRECISE DETAILS TO SHOW THE NAMES OF THE PARTIES TO WHOM PA YMENTS EXCEEDING RS.20,000/- WERE MADE TOGETHER WITH DATES ON WHICH SUCH PAYMENT S WERE MADE. THE ASSESSEE HAS PLACED NO MATERIAL BEFORE US TO REBUT THE AFORE SAID FINDINGS RECORDED BY THE AO. IN THIS VIEW OF THE MATTER, THE FINDINGS OF THE A.O ., WHICH ALSO STAND CONFIRMED BY THE C.I.T.(A), THAT INDIVIDUAL PAYMENTS EXCEEDING RS.20 ,000/- WERE MADE WITHOUT DEDUCTION OF TAX AT SOURCE IN THE PERIOD UNDER APPE AL ARE CONFIRMED AND RESULTANTLY THE PLEA OF THE ASSESSEE IN THIS BEHALF IS DISMISSE D. 8. THE PLEA OF THE ASSESSEE THAT THE PAYMENTS WERE MADE WITHOUT CONTRACT IS BEREFT OF ANY LEGAL FOUNDATION. A CONTRACT MAY BE E ITHER ORAL OR IN WRITING OR CAN BE INFERRED FROM THE CONDUCT OF THE PARTIES. A CONTRAC T IS NOTHING BUT AN AGREEMENT ENFORCEABLE IN LAW. IN THE PRESENT CASE, PAYMENTS W ERE MADE ONLY AFTER BOTH THE PARTIES AGREED WITH REGARD TO THE AMOUNT TO BE PAID FOR EACH AND EVERY TRIP. THEREFORE, IT CANNOT BE SAID THAT THE IMPUGNED PAYM ENTS WERE MADE WITHOUT CONTRACT. 9. THE AMENDMENTS MADE IN SECTION 194C W.E.F. 01-06 -2005 ARE OF NO HELP TO THE ASSESSEE FOR THE REASON THAT THE MATTER UNDER A PPEAL RELATES TO THE PERIOD PRIOR TO 01-06-2005. 10. AFTER DUE CONSIDERATION OF ALL THE MATERIALS PL ACED BEFORE US INCLUDING WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, WE HOLD THAT THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ACTION OF THE AO. APPEAL FILED BY THE ASSESSEE IS DISMISSED. ) + 01-06-2012 - ) ORDER PRONOUNCED IN OPEN COURT ON 01-06-2012 SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER +/ DATE 01-06-2012. /RAJKOT 4 ITA 464/RJT/2011 ) )) ) 01 01 01 01 21 21 21 21 / COPY OF ORDER FORWARDED TO:- 1. 5 / APPELLANT-. M/S. NITIN ROADLINES PVT. LTD., RAJK OT.. 2. 075 / RESPONDENT-THE INCOME TAX, OFFICER, TDS-1, RAJKO T.. 3. : / CONCERNED CIT-TDS, AHMEDABAD.. 4. :- / CIT (A)-XX, AHMEDABAD.. 5. 1 0, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR/ , / ITAT, RAJKOT