Shri Pukaram, Mysore V. ITO, Mysore

ITA 500/BANG/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9951 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-01-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 19-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZINIK VASHAI
• Assessee Lawyers: P C CHADAGA
• Keywords: Search and seizure

Judgement Text

ITA.500/B/2009 PAGE - 1 IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH 'A' BEFORE SHRI. K. P. T. THANGAL, VICE PRESIDENT AND SHRI. A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER I.T.A.NO.500/BANG/2009 (ASSESSMENT YEAR : 2006-07 ) SHRI. PUKARAM, M/S. ANJANA ZARDA AGENCY, 362/A, SHIVAYANA MUTT ROAD, DEVARAJ MOHALLA, MYSORE .. APPELLANT V. INCOME TAX OFFICER, WARD -1, MYSORE .. RESPONDENT APPELLANT BY : SHRI. P. C. CHADAGA RESPONDENT BY : SMT. JACINTA ZINIK VASHAI O R D E R PER K. P. T. THANGAL, VICE PRESIDENT : THIS APPEAL BY THE ASSESSEE IS FOR THE ASSESSMENT YEAR 2006- 07. WHEN THE MATTER WAS TAKEN UP FOR HEARING, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THERE IS A DELAY OF 24 DAYS IN FILING THE APPEAL. HE SUBMITTED THAT THE ASSESSEE WAS SUFFERING FROM VIRAL FEVER ACCOMPANIED BY BRONCHITIS. HE WAS UNDE R TREATMENT AND REST WAS ADVISED BY THE DOCTOR FROM 12.2.2009 TO 13 .5.2009. MEDICAL CERTIFICATE TO THE EFFECT IS ATTACHED. WE HEARD TH E DR. CONSIDERING ITA.500/B/2009 PAGE - 2 THAT THE WAS NOT KEEPING WELL, WE CONDONE THE DELAY AND PROCEED TO DECIDE THE ISSUE ON MERIT. 2. THE FIRST GROUND OF OBJECTION BY THE ASSESSEE IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A) CONFIRMI NG THE ADDITION MADE U/S.40(A)(IA) AMOUNTING TO RS.2,37,316/- ON TH E GROUND THAT TDS WAS NOT MADE FOR PAYMENT MADE TO THE TRANSPORT CONTRACTORS. THE FACTS ARE AS FOLLOWS. THE ASSESSEE FILED THE R ETURN OF INCOME DISCLOSING INCOME AT RS.3,77,123/-. THE ASSESSEE I S A WHOLESALE AND RETAIL DEALER IN ZARDA ITEMS. THE ASSESSING OFFICE R NOTICED THE ASSESSEE PAID TOWARDS LORRY FREIGHT DEBUTED AGAINST THE HEAD 'FREIGHT INWARD' OF AN AMOUNT OF RS.2,37,316/-. ON THIS AMO UNT HE FURTHER NOTED THE ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE U /S.194C OF THE ACT. HENCE, HE MADE THE IMPUGNED ADDITION. THE COMMISSI ONER OF INCOME-TAX(A) CONFIRMED THE ADDITION. THE ASSESSEE 'S REPRESENTATIVE SUBMITTED THE ASSESSEE WAS MAKING SMALL PAYMENTS LI KE RS.300/-, RS.500/-, RS.2,000/- UP TO RS.2 LAKHS EVERY DAY TO THE LORRY DRIVERS AND THEY USED TO TAKE THIS AMOUNT FOR FILLING PETRO L/DIESEL ETC., PRACTICALLY IT IS NOT POSSIBLE FOR THE ASSESSEE TO DEDUCT THE TAX AT SOURCE ON THIS KIND OF SMALL AMOUNTS PAID TO THE LO RRY DRIVERS. ITA.500/B/2009 PAGE - 3 3. THE LEARNED DR SUBMITTED THE BILL HAS BEEN RAISE D IN THE NAME OF THE TRANSPORTER. THE TAX WAS TO BE DEDUCTED FOR A SPECIFIED PERIOD WHEN THE AMOUNT REACHES A CERTAIN FIGURE AND ALSO T HE ENTIRE AMOUNT IS REFLECTED IN THE BOOKS OF ACCOUNT OF THE ASSESSE E AND, THEREFORE, IT WAS NOT POSSIBLE FOR THE ASSESSEE TO DEDUCT THE AMO UNT AT SOURCE ACCORDING TO THE LAW. 4. HEARING THE RIVAL SUBMISSIONS, WE ARE OF THE VIE W THAT NO CASE IS MADE OUT BY THE ASSESSEE TO INTERFERE WITH THE O RDER OF THE FIRST APPELLATE AUTHORITY. APPEAL BY THE ASSESSEE ON THI S GROUND FAILS AND IS DISMISSED. 5. COMING TO THE SECOND GROUND, WHICH IS AGAINST TH E ADDITION OF RS.26,88,900/- MADE U/S.41(1) OF THE ACT, BEING SAL ES-TAX REFUND RECEIVED BY THE ASSESSEE DURING THE ASSESSMENT YEAR S 1994-95 TO 1997-98 AGGREGATING TO RS.26,88,900/-. THE ADDITIO N HAS BEEN RETAINED BY THE FIRST APPELLATE AUTHORITY OBSERVING AS UNDER : 'THE APPELLANT HAD GOT DEDUCTION OF SALES TAX PAYME NT IN EARLIER YEARS ON PAYMENT BASIS. THEREFORE, THE ASS ESSING OFFICER HAS CORRECTLY TAXED THE SAME NOW WHEN THE R EFUND HAS BEEN RECEIVED. THE FACT THAT THERE IS FURTHER DISPUTE IN THE MATTER IS NOT MATERIAL CONSIDERING THAT SALES T AX PAYMENT AND SALES TAX REFUNDS ARE DEDUCTIBLE AND TAXABLE ON PAYMENT ITA.500/B/2009 PAGE - 4 AND RECEIPT BASIS AND NOT ON ACCRUAL BASIS. THE AD DITION MADE IS, THEREFORE, CONFIRMED.' 6. WE HEARD THE RIVAL SUBMISSIONS. ACCORDING TO AS SESSEE'S REPRESENTATIVE THE FIGURE WAS NOT DISCLOSED BEFORE THE REVENUE AUTHORITIES FOR THE REASON THAT THE SALES-TAX DEPAR TMENT HAD GONE IN FURTHER APPEAL AGAINST THE RELIEF GRANTED TO THE AS SESSEE. WE ARE AFRAID THIS IS NOT SUFFICIENT REASON THAT AS AND WHEN THE AMOUNT IS RECEIVED BACK THE ASSESSEE IS BOUND TO DISCLOSE THE AMOUNT B EFORE THE REVENUE AUTHORITIES. UNDER THESE CIRCUMSTANCES, WE HAVE NO REASON TO DISTURB THE ORDER OF THE FIRST APPELLATE AUTHORITY. APPEAL BY THE ASSESSEE ON THIS GROUND ALSO FAILS AND IT IS DISMISSED. 7. IN THE RESULT ASSESSEE'S APPEAL IS DISMISSED. O RDER PRONOUNCED IN OPEN COURT ON 22ND DAY OF JANUARY, 2010. SD/- SD/- (A. MOHAN ALANKAMONY) (K. P. T. THANGAL) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE DATED : 22ND JANUARY, 2010 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, NEW DELHI 7. GF, ITAT, BANGALORE