Asstt.Commissioner of Income tax Circle-2(1), BILASPUR(CG) V. Abrar Mohammad, RAIGARH(CG)

ITA 53/BIL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94000 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S AGRAWAL
• Assessee Lawyers: H M MUHARANA
• Keywords: Rule of consistency
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE S/SHRI MUKUL K SHRAWAT, ( JM) AND SHAMIM YAHYA,(AM) I TA . NO . 53 / BLPR / 201 2 (ASSESSMENT YEAR : 200 8 - 09 ) THE ASSTT. COMMISSIONER OF INCOME TAX 2(1), MAHIMA COMMERCIAL COMPLEX, VYAPAR V IHAR, BILASPUR, RAIPUR (CG). ) VS. ABRAR MOHAMMAD, M/S RAJA ROAD LINES, TARAIMAL, PO GERWANI, RAIGARH, (CG) APPELLANT .. RESPONDENT PAN/GIR NO. : AJKPM6078M APPELLANT BY : SHRI G S AGRAWAL RESPONDENT BY : SHRI H M MUHARANA DATE OF HEARING : 1 8 .6.2015 DATE OF PRONOUNCEMENT : 19 . 6. 201 5 O R D E R PER MUKUL K SHRAWAT, ( JM) : THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LD. CIT(A) ORDER DATED 28.2.2012 F OR THE ASSESSMENT YEAR 200 8 - 09 AND THE GROUND S RAISED ARE NARRATIVE AS WELL AS REPETITIVE IN NATURE, HOWEVER, THE LD. DR HAS STATED THAT THE GROUND NO. 1(A) IS THE MAIN GROUND AND REST OF THE GROUNDS ARE IN SUPPORT OF THIS MAIN GROUND, HENCE, WE HAVE R EPRODUCED AND ADJUDICATED THE GROUND NO.1(A) AS UNDER : 1(A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA S E, THE LEARNED CIT(A) ERRED IN LAW AND IN FACT IN DELETING THE ADDITION OF RS.5,87,98,882/ - WHICH HAD BEEN ADDED BY THE AO TOWARDS DISAL LOWANCE U/S 40(A)(IA) OF THE ACT, IN SPI T E OF THE FACTS ON RECORDS THAT THE ASSESSEE HAS COMPLETELY IGNORED TO COMPLY WITH THE PROVISIONS OF SECTION 194C OF THE ACT AND ADMITTED BY T HE ASSESSEE BEFORE THE AO DURING THE ASSESSMENT PROCEEDING S . ITA. NO. 53 / BLPR/201 2 2 2. THE A SSESSEE IN AN INDIVIDUAL CAPACITY DERIVES AN INCOME FROM THE TRANSPORTATION BUSINESS AS DISCUSSED IN THE ORDER PASSED U/S 143(3) DATED 27.12.2010.THE ASSESSEE HAD MADE PAYMENT TO THE TUNE OF RS.5,87,98,882/ - TO VARIOUS SUB - CONTRACTOR S FOR CARRYING OUT THE TRANSPORTATION WORK. AS PER THE AO, THE ASSESSEE HAD FAILED TO DEDUCT THE TAX AT SOURCE AS REQUIRED UNDER THE PROVISIONS OF SECTION 194C OF THE ACT. AFTER INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, THE AO TAXED THE ENTIRE AMOUNT IN THE HAN DS OF THE ASSESSEE. 3. WITH THIS BACKGROUND, WE HAVE BEEN INFORMED THAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007 - 08 RESPECTED CO - ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.120 / BLPR/2011 TITLED AS ACIT V/S SHRI MOHAMMAD ABRA R , ORDER DATED 10.2. 2012 HAS HELD AS UNDER : 3. THE LD. DR SUBMITTED TH AT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.3,08,44,702/ - , WHICH WAS MADE BY THE AO BY INVOKING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE CIT(A) FAILED TO APPRECIATE THE FACTS AND LAW WITH REGARD TO DISALLOWANCE IN QUESTION. ACCORDING TO LD.DR THE AO WAS JUSTIFIED IN MAKING T HE DISALLOWANCE U /S 40(A)(IA) OF T HE ACT WITH RESPECT TO THE PAYMENT IN QUESTION. HE, THEREFORE, REQUESTED TO SET ASIDE THE O RD ER OF THE CIT(A) AND RESTOR E THAT OF AO. ON THE OTHER HAND, LD. AR RELIED ON THE ORDER OF CIT(A) AND POINTED OUT THAT THIS IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE CUTTACK BENCH OF THE TRIBUNAL IN THE CA S E OF R R CARRYING CORPORATION V/S ACIT (2009) 126 TTJ ( CTK) 240, WHEREIN IN SIMILAR CIRCUMSTANCES RELIEF HAS BEEN GRANTED TO THE ASSESSEE BY OBSERVING THAT IN THE ABSENCE OF ANYTHING ON RECORD TO SUGGEST EXISTENCE OF ANY CONTRACT BETWEEN THE ASSESSEE AND OTHER TRANSPORTERS WHOSE VEHICLES WERE ENGAGED BY ASSES SEE FOR EXECUTING VARIOUS CONTRACTS , THERE WAS NO CONTRACT AND SUB - CONTRACTOR RELATIONSHIP BETWEEN THE ASSESSEE AND THE ALLEGED SUB - CONTRACTOR , THEREFORE, ASSESSEE WAS NOT LIABLE TO DEDUCT TAX UNDER SECTION 194C OF T HE ACT FROM PAYMENTS MADE TO SUB - CONTR ACTORS . THEREFORE , THE SAME COULD NOT BE DISALLOWED UNDER THE PROVI SI ONS OF SECTION 40(A)(IA) OF T HE ACT. 4. SINCE THE VIEW HAS ALREADY BEEN TAKEN BY THE TRIBUNAL IN ASESSEES OWN CASE, THEREFORE, FOLLOWING THE RULE OF CONSISTENCY, WE HEREBY AFFIRM THE RELIEF GRANTED BY THE LD.CIT(A). ITA. NO. 53 / BLPR/201 2 3 5 . IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH JUNE , 201 5 SD SD ( SHAMIM YAHYA ) ( MUKUL K SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER RAIPUR : 19TH JUNE,2015. SRL , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPEL LANT 2. THE RESPONDENT. 3. THE CIT(A) - CONCERNED 4. CIT CONCERNED 5. DR, ITAT, RAIPUR CONCERNED 6. GUARD FILE. BY ORDER, TRUE COPY SENIOR PRIVATE SECRETARY /AR