ITO 25(2)(1), MUMBAI V. JASWANT P.PATEL (HUF), MUMBAI

ITA 4666/MUM/2012

• Counselvise Citation: 466619914 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 29-10-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 11-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Section: 143(3); 194C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 4666/MUM/2012 ASSESSMENT YEAR: 2006-07 ITO 25(2)(1) C-11 BLDG. ROOM NO. 107, P.K. BHAVAN BKC BANDRA (E), MUMBAI-51 VS. JASWANT P. PATEL HUF 46/A, GANJAWALA APARTMENT, S.V.P. ROAD, BORIVALI (W) MUMBAI-.400 092 PAN:AAAHP 2465 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K. SHIVRAM & SHRI AJAY SINGH REVENUE BY : SHRI S.D. SRIVASTAVA DATE OF HEARING : 29.10.2013 DATE OF PRONOUNCEMENT : 19.11.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A) -35, MUMBAI DATED 26.04.2012 FOR THE ASSESSMENT YEAR 200 6-07. IN THIS APPEAL, THE REVENUE HAS AGITATED THE ACTION OF THE LD.CIT(A) IN DELETIN G THE ADDITION MADE BY THE AO U/S 40(A)(IA) AMOUNTING TO RS.84,21,178/- IN RESPECT OF THE PAYMENT INCURRED OUT OF TRANSPORT CHARGES BY THE ASSESSEE. 2. BRIEFLY STATED THE ASSESSEE, A HUF, ENGAGED IN T HE BUSINESS OF TRANSPORT, DURING THE YEAR CONSIDERATION WHILE DECLARING TRANSPORT CHARGE S RECEIPTS OF RS.3,40,52,168/- HAD CLAIMED AN EXPENDITURE OF RS.84,21,178/- AGAINST TH E SAID RECEIPTS ON ACCOUNT OF TRANSPORT CHARGES PAID. IN THE ASSESSMENT FRAMED U/S 143(3) R EAD WITH SECTION 263 OF THE INCOME TAX ACT, THE AO DISALLOWED THE SAID EXPENDITURE OF RS.84,21,178/- U/S 40(A)(IA) AS THE ASSESSEE HAD NOT DEDUCTED TDS AS PER THE PROVISIONS OF SECTION 194C OF THE INCOME TAX ACT. ON APPEAL, THE LD.CIT(A) DELETED THE IMPUGNED ADDITION MADE BY THE AO BY RELYING ON THE DECISIONS OF THE ITAT IN THE CASE OF NASIB SING H VS. ACIT REPORTED IN 50 SOT 486 (CUTTACK) AND MYTHRI TRANSPORT CORPORATION VS. ACIT (2010) 124 ITD 40. AGGRIEVED BY THE IMPUGNED ORDER THE REVENUE IS IN APPEAL BEFORE US. ITA NO. 4666/MUM/2012 JASWANT P. PATEL HUF ASSESSMENT YEAR: 2006-07 2 3. BEFORE US, THE LD.DR HAS ARGUED ON THE BASIS OF THE REASONING CITED BY THE AO IN THE ASSESSMENT ORDER AND CONTENDED THAT THE LD.CIT(A) O UGHT NOT TO HAVE DELETED THE ADDITION MADE BY THE AO. ON THE OTHER HAND, THE LD.AR OF THE ASSESSEE HAS FILED THE FACT SHEET AND DRAWN OUR ATTENTION TO THE PROVISIONS OF SECTION 19 4C (1) AND VARIOUS DECISIONS THEREON IN SUPPORT OF THE DECISION OF THE LD.CIT(A) IN DELETIN G THE SAID DISALLOWANCE/ADDITION MADE BY THE AO. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. FIRSTLY, IT IS PERTINENT TO MENTION THAT THE ASSESSEE IN THE INSTA NT CASE, A HUF AND ACCORDING TO CLAUSE (K) TO SECTION 194C(1) INTRODUCED BY FINANCE ACT 20 07 IS APPLICABLE TO THE INDIVIDUAL AND HUF WHICH STATES THAT THERE IS A REQUIREMENT OF DED UCTION OF TDS W.E.F 01.06.2007. THE SPECIFIC AMENDMENT BRINGING HUF WITHIN THE PROVISIO N OF SECTION 194C (1) IS MADE ONLY FROM THE SAID DATE AND THIS IMPLIES THAT HUF ARE EX CLUDED FROM SECTION 194C BEFORE 01.06.2007 AND THE SAME IS NOT APPLICABLE IN THE CA SE OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION I.E. 2005-06. SECONDLY, THE ITA T IN THE CASE OF NASIB SINGH (SUPRA) HAS HELD THAT WHERE AN ASSESSEE WHO IS IN THE BUSINESS OF TRANSPORTATION ENGAGES HIS OWN TRUCKS AND THE TRUCKS OWNED BY THE OTHERS, PROVISIO NS OF SECTION 194C (1) AS TO THE REQUIREMENT OF DEDUCTING TAX AT SOURCE WOULD NOT AP PLY IN RESPECT OF PAYMENTS MADE TO THE TRUCK OWNERS WHOSE TRUCKS THE ASSESSEE HAS ENGA GED. THE SAID PROPOSITION IS SUPPORTED BY THE DECISION OF THE ITAT IN THE CASE O F MYTHRI TRANSPORT CORPORATION (SUPRA). IN THE INSTANT CASE ALSO THE FACTS ARE SIMILAR TO T HAT OF THE SAID DECISION OF THE ITAT IN THE CASE OF MYTHRI TRANSPORT CORPORATION. IN VIEW OF TH E FACT THAT THE LD.CIT(A) HAS CORRECTLY RELIED ON THE DECISIONS WHILE DELETING THE DISALLOW ANCE/ADDITION MADE BY THE AO, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE WITH THE I MPUGNED DECISION OF THE LD.CIT(A) AND THEREFORE THE SAME IS UPHELD. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 1 9 TH DAY OF NOVEMBER, 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 19.11.2013. *SRIVASTAVA ITA NO. 4666/MUM/2012 JASWANT P. PATEL HUF ASSESSMENT YEAR: 2006-07 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR J BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.