Smt.Prasanna Radhakrishnan Dawson, Calicut V. The ITO, Calicut

MA 115/COCH/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3413 (ITAT-COCHIN)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 13-10-2014
• Court: TRIBUNAL
• Department Lawyers: V R GOPAKUMAR
• Assessee Lawyers: C B M WARRIER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH C OCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM M.P. NO. 115/COCH/2014 (ARSG. OUT OF I.T.A. NO.153/COCH/2014) ASSESSMENT YEAR : 2009-10 SMT. PRASANNA RADHAKRISHNAN DAWSON, PROP. R.K. GAS AGENCY, ENGLISH CHURCH CROSS ROAD, NADAKKAVU, KOZHIKODE-673 011. [PAN:AAIPR 5278H] VS. THE INCOME TAX OFFICER, WARD- 1(2), KOZHIKODE. (ASSESSEE -APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI C.B.M. WARRIER, CA REVENUE BY SHRI V.R. GOPAKUMAR, SR. DR DATE OF HEARING 04/09/2015 DATE OF PRONOUNCEMENT 07/09/2015 O R D E R PER B.P.JAIN, ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION OF THE ASSESSEE ARISES FROM THE ORDER OF THE ITAT, COCHIN BENCH IN I.T.A. NO. 153/COCH/2014 DATE D 08 TH AUGUST, 2014 FOR THE ASSESSMENT YEAR 2009-10. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS FILED THE M ISCELLANEOUS PETITION WHICH FOR THE SAKE OF CONVENIENCE IS REPRODUCED HER EINBELOW:- 1. THE APPELLATE ORDER OF THE HONBLE BENCH ON 08 TH AUGUST 2014 HAS DECIDED ABOUT THE NATURE OF PAYMENT BY THE APPELLAN T BY WAY OF M.P. NO.115/COCH/2014 2 TRANSPORTATION CHARGES AND THE APPLICABILITY OF PRO VISIONS OF THE ACT OF TAX DEDUCTED AT SOURCE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) PASSED THE APPELLATE ORDER AFTER RECEIVING THE REMAND REPORT DATED 28.11 .2013. THE REMAND REPORT PAGE 3 PARA 5:- HOWEVER, THE AR OF THE ASSESSEE AT THE TIME OF HE ARING BEFORE ME HAS PRODUCED THE FOLLOWING DOCUMENTS, IN SUPPORT OF ASSESSEES CLAIM THAT THERE WAS NO CONTRACT BETWEEN THE ASSESS EE AND SHRI SURESH AND THAT THE TRANSPORTATION CHARGES PAID BY SURESH TO DRIVERS/TRUCK OWNERS ARE ON BEHALF OF THE ASSESSEE AND THE PAYMENTS MADE WERE BELOW 20,000/- IN EACH CASE. -STAMPED VOUCHERS ISSUED BY THE ASSESSEE TOWAR DS PAYMENT OF TRANSPORTATION CHARGES TO DRIVERS. -DRIVER-WISE PAYMENT OF TRANSPORTATION CHARGES (COPY ENCLOSED). THE AR HAS ALSO PRODUCED SHRI SURESH BEFORE ME IN O RDER TO APPRAISE THE CORRECT FACTS OF THE CASE. PAGE 4 PARA 5 OF THE REMAND REPORT:- III) FROM THE WORDINGS OF SHRI SURESH IT APPEARS TH AT SUB-CONTRACT EXISTED WAS BETWEEN THE ASSESSEE AND VEHICLE OWNERS AND NOT BETWEEN THE ASSESSEE AN SHRI SURESH. AS SUCH, THE AR OF THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF PAYMENTS ( VEHICLE HIRE CHARGES) MADE TO EACH TRUCK OWNERS TO KNOW WHETHER THE ASSESSEE IS LIABLE TO DEDUCT TDS UNDER THE PROVISIONS OF SEC TION 194 I. 3. THE ASSESSING OFFICER DECIDED THAT THE PROVISIO NS OF SECTION 194 I IS APPLICABLE AND SHRI SURESH IS AN EMPLOYEE AND NO CO NTRACT IS SUBSISTING BETWEEN THE APPELLANT AND SHRI SURESH. I N VIEW OF THIS THE ASSESSING OFFICER DECIDED THAT 194 I IS APPLICABLE FOR THE PURPOSE OF TAX DEDUCTED AT SOURCE AS PER PAGE 3 PAR 5 OF THE REMAN D REPORT. THE ASSESSING OFFICER STATED THAT THE PAYMENT OF DRIVER WISE TRANSPORTATION CHARGES ARE PRODUCED BEFORE THE ASSESSING OFFICER. IN THE ABOVE SITUATION THE DECISION OF THE HONBLE BENCH, MR. SURESH IS A CONTRACTOR AND PROVISIONS OF SECTION 19 4 C(1) OF THE ACT IS APPLICABLE AS STATED IN PARA 3.1 PAGE 6 OF THE ORDER IS A MISTAKE . M.P. NO.115/COCH/2014 3 4. IN PARA 3.2 PAGE 7 OF THE ORDER OF HONBLE BENC H IT IS STATED THAT PAYMENTS ARE MADE TO MR. SURESH BUT AS PER THE REMA ND REPORT SURESH IS ONLY AN EMPLOYEE. ON A PERSONAL EXAMINAT ION BY THE ASSESSING OFFICER HE IS ONLY DISPERSING THE LORRY C HARGES TO THE LORRY DRIVERS WHOSE DETAILS WERE FURNISHED TO THE ASSESSI NG OFFICER AS ADMITTED PARA 5 PAGE 3 OF THE REMAND REPORT. CONSIDERING THE ABOVE FACTS OF THE CASE THE ORDER O F THE HONBLE BENCH IS CONTRADICTING THE FINDINGS OF THE ASSESSING OFFI CER IN REMAND REPORT WHICH IS FAVOURABLE TO THE APPELLANT. THE REVENUE HAS NOT BROUGHT BEFORE THE HONBLE BENCH ANY EVIDENCE OR MADE ANY S UBMISSIONS AGAINST THE REMAND REPORT. IN VIEW OF THE ABOVE THE ORDER OF HONBLE BENCH IS A MISTAKE WHICH REQUIRES RECTIFICATION. THE ASSESSING OFFICER DECIDED THAT PROVISIONS OF SE CTION 194 1 IS APPLICABLE AFTER THE PERSONAL EXAMINATION OF MR. SU RESH AND THE PAYMENTS ARE MADE TO THE DRIVERS OF THE TRUCKS WHO ARE REPRESENTING TRUCK OWNERS. THE APPELLANT MAY REQUEST THE ABOVE FACTS IN FAVOUR OF APPELLANT MAY BE CONSIDERED AND THE APPELLATE ORDER MAY BE RECTIFIED. 3. WE HAVE HEARD THE RIVAL CONTENTIONS. AFTE R PERUSAL OF THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE AND ALSO THE ARGUMEN TS MADE BY THE LD. COUNSEL FOR THE ASSESSEE WHICH, IN FACT, HAS BEEN ELABORATE D AS IF THE LD. AR IS ARGUING THE APPEAL ITSELF, WE FIND THAT THE LD. COUNSEL HA S NOT POINTED OUT ANY MISTAKE IN THE ORDER OF THE ITAT, COCHIN BENCH DATED 08 TH AUGUST, 2014. THE ITAT HAS GIVEN CLEAR FINDING WITH REGARD TO THE PAYMENT MADE BY THE ASSESSEE TO SHRI SURESH ON VARIOUS OCCASIONS WHO IN TURN HAS MADE PA YMENT TO THE TRUCK OWNERS/DRIVERS AND THE ASSESSEE HAS NOT FURNISHED A NY DETAILS OF THE TRUCK OWNERS/DRIVERS TO THE LOWER AUTHORITIES. MOREOVER, A PLEA WAS TAKEN THAT THE PAYMENT HAS BEEN MADE TO THE EMPLOYEES OF THE ASSES SEE WHO HAVE M.P. NO.115/COCH/2014 4 UNDERTAKEN THE RESPONSIBILITY OF TRANSPORTING CYLIN DERS AND THE TRUCK OWNERS GAVE THE BILLS TO MR. SURESH WHO IN TURN PAID TO TH E TRUCK OWNERS, WHICH MEANS THAT MR. SURESH ACTED AS A SUB-CONTRACTOR TO THE AS SESSEE AND AS SOON AS MR. SURESH ENTERS INTO SUB-CONTRACT WITH THE ASSESSEE, THE ASSESSEES CASE COMES UNDER THE PURVIEW OF SEC. 194C(1) OF THE ACT. THER EAFTER, IT IS NOT REQUIRED TO SEE WHETHER THE ASSESSEE PAID CHARGES TO THE TRANSP ORTER OR NOT. THE ACTIVITY CARRIED ON BY MR. SURESH ON BEHALF OF THE ASSESSEE WILL BE SIMPLY AN ACTIVITY OF TRANSPORTATION OF CYLINDERS BY TRUCK AND THE ASSESS EE IS LIABLE TO DEDUCT TDS. A CLEAR CUT FINDING HAS BEEN GIVEN BY THE ITAT. COCHI N BENCH IN ITS ORDER DATED 08 TH AUGUST, 2014 THAT SECTION 194C(1) IS APPLICABLE AN D THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT SECTION 194 I IS APPLICABLE, WILL TANTAMOUNT TO GET THE ORDER REVIEWED. THE LD. COUNSEL FOR THE AS SESSEE HAS MADE ARGUMENTS AS IF THE ARGUMENTS ARE MADE IN THE APPEAL ITSELF W HICH ARE OUTSIDE THE SCOPE AND AMBIT OF THE APPLICATION FILED U/S. 254(2) OF T HE ACT. 4. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, W E DO NOT FIND ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE ITAT, COCH IN BENCH DATED 08 TH AUGUST, 2014 AND ACCORDINGLY, THE MISCELLANEOUS PET ITION FILED BY THE ASSESSEE U/S. 254(2) OF THE ACT IS REJECTED. M.P. NO.115/COCH/2014 5 5. IN THE RESULT, THE MISCELLANEOUS PETITION FI LED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 07-09-2015. SD/- SD/- (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 7TH SEPTEMBER, 2015 GJ COPY TO: 1. SMT. PRASANNA RADHAKRISHNAN DAWSON, PROP. R.K. GAS AGENCY, ENGLISH CHURCH CROSS ROAD, NADAKKAVU, KOZHIKODE-673 011. 2. THE INCOME TAX OFFICER, WARD-1(2), KOZHIKODE. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), KOZHIKO DE. 4. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. D.R., I.T.A.T.,COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN