Santhosh Kumar Gupta, Vijayawada V. The Income Tax Officer, Ward-1(2), , Vijayawada

MA 38/VIZ/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6529 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-06-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 11-10-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APARNA VILLURI
• Keywords: TDS
• Section: 194C; 195

Judgement Text

1 आयकरअपीलीयअधिकरण, विशाखापटणमपीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्रीद ु व्ि ू रुआरएलरेड्डी, न्याययकसदस्यएिंश्रीएसबालाक ृ ष्णन, लेखासदस्यकेसमक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER (Through Hybrid Hearing) MA No. 38/Viz/2022 (In आयकरअपीलसं./ I.T.A. No.78/Viz/2020) (निर्धारणवर्ा/ Assessment Year: 2009-10) Santhosh Kumar Gupta, Viajayawada. PAN: ADWPG 6896 M Vs. Income Tax Officer, Ward-1(2), Vijayawada. (अपीलधर्थी/ Appellant) (प्रत्यर्थी/ Respondent) अपीलधर्थीकीओरसे/ Appellant by : Shri M. Madhusudan, AR प्रत्यधर्थीकीओरसे/ Respondent by : Dr. Aparna Villuri, Sr. AR स ु िवधईकीतधरीख/ Date of Hearing : 11/05/2022 घोर्णधकीतधरीख/Date of Pronouncement : 13/06/2022 O R D E R PER S. BALAKRISHNAN, Accountant Member : This Miscellaneous Application is filed by the assessee seeking recall of the order passed in ITA No. 78/Viz/2020 (AY 2009-10), dated 10/06/2022. 2. At the outset, the Learned Authorized Representative [“Ld. AR”] for the assessee submitted that the Tribunal has not 2 adjudicated Grounds No. 2, 3,4 & 5 of the original appeal and has also not considered the factual position with respect to Ground No.7. The Ld. AR therefore pleaded that there is a mistake apparent on record in the order of the Tribunal and therefore prayed for recall of the Tribunal’s order (supra) for fresh adjudication. 2. Per contra, the Learned Departmental Representative [“Ld. DR] relied on the order of the Tribunal. 3. We have heard both the sides and perused the material available on record as well as the orders of the Ld. Revenue Authorities and also the Tribunal order dated 10/06/2022. In the instant case, it is an admitted fact that the assessee has not submitted various evidences with regard to the expenditure incurred and claimed by the assessee. The Ld. CIT(A) while considering the submissions made by the assessee has allowed the sum of Rs. 9,33,282/- and 8,44,828/- based on the evidences provided by the assessee. The Ld. CIT(A) has rightly disallowed the balance expenditure claimed by the assessee for which there are no evidences submitted by the assessee. Prima facie the disallowance confirmed by the Ld CIT(A) is due non production of cogent evidences by the assessee. We have 3 considered all the above facts in paragraphs 4 to 6 of the order of the Tribunal (supra) which are extracted herein below for immediate reference: “4. ............. The Ld. AR stated that the amount paid by the assessee is with respect to loading and unloading charges, trailer charges and transport charges from the trailer to the assessee’s place of business. The Ld. DR supported the order of the Ld. CIT(A) and submitted that the Ld. CIT(A) has rightly considered the evidences provided by the assessee to the extent of Rs. 9,33,282/-. The Ld. DR also submitted that the Ld. CIT(A) has also considered the reimbursement made to the local shipping agents and has also allowed the same. 5. We have heard the rival contentions and perused the material available on record and the orders of the Authorities below. The reliance placed by the Ld. Revenue Authorities on Circular No. 723 dated 19/9/1995 clearly states as follows: “1. Representations have been received regarding the scope of sections 172, 194C and 195 of the Income-tax Act, 1961, in connection with tax deduction at source from payments made to the foreign shipping companies or their agents. 2. Section 172 deals with shipping business of non-residents. Section 172(1) provides the mode of the levy and recovery of tax in the case of any ship, belonging to or chartered by a non-resident, which carries passengers, livestock, mail or goods shipped at a port in India. An analysis of the provisions of section 172 would show that these provisions have to be applied to every journey a ship, belonging to or chartered by a non-resident, undertakes from any port in India. Section 172 is a self-contained code for the levy and recovery of the tax, ship-wise, and journeywise, and requires the filing of the return within a maximum time of thirty days from the date of departure of the ship. 3. The provisions of section 172 are to apply, notwithstanding anything contained in other provisions of the Act. Therefore, in such cases, the provisions of sections 194C and 195 relating to tax deduction at source are not applicable. The recovery of tax is to be regulated, for a voyage undertaken from any port in India by a ship under the provisions of section 172. 4. Section 194C deals with work contracts including carriage of goods and passengers by any mode of transport other than railways. This section applies to payments made by a person referred to in clauses (a) to (j) of sub-section (1) to any "resident" (termed as contractor). It is clear from the section that the area of operation of TDS is confined to payments made to any "resident". On the other hand, section 172 operates in the area of computation of profits from shipping business of non-residents. Thus, there is no overlapping in the areas of operation of these sections. 4 5. There would, however, be cases where payments are made to shipping agents of non-resident ship-owners or charterers for carriage of passengers etc., shipped at a port in India. Since, the agent acts on behalf of the non-resident ship-owner or charterer, he steps into the shoes of the principal. Accordingly, provisions of section 172 shall apply and those of sections 194C and 195 will not apply.” 6. In the instant case, we are of the considered view that as per the Circular extracted above where the provisions of section 172 are applicable, the provisions of section 195 / 195C cannot be invoked. It is a settled principle. In the instant case, the assessee has paid loading and unloading charged, trailer charger and transport charges from port to the place of business of the assessee. It clearly attracts the provisions of section 194C and failure to deduct TDS U/s. 194C is not in accordance with law. The Ld. Revenue Authorities has rightly considered the evidence submitted and has disallowed only to the extent where the evidences were not furnished by the assessee. We therefore find no infirmity in the order of the Ld. CIT(A) and hence no interference is required. Accordingly, grounds raised by the assessee are dismissed.” We therefore find that there is no mistake apparent on record in the order of the Tribunal (supra) and hence this Miscellaneous Application filed by the assessee is hereby dismissed. 4. In the result, Miscellaneous Application filed by the assessee is dismissed. Pronounced in the open Court on 13 th June ,2024. Sd/- Sd/- (द ु व्ि ू रु आर. एल रेड्डी) (एस बालाक ृ ष्णन) (DUVVURU RL REDDY) (S. BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER लेखासदस्य/ACCOUNTANT MEMBER Dated :13.06.2024 OKK - SPS 5 आदेशकीप्रतिलिपिअग्रेपिि/Copy of the order forwarded to:- 1. निर्धाररती/ The Assessee– Santhosh Kumar Gupta, Prop. M/s. Vinayaka Traders, D.No. 75-76/6-1A, Nagarjuna Street, Bhavanipuram, Vijayawada – 520012, Andhra Pradesh, 520012. 2. रधजस्व/The Revenue – Income Tax Officer, Ward-1(2), CR Buildings, MG Road, Vijayawada. 3. The Principal Commissioner of Income Tax, Vijayawada. 4. आयकरआय ु क्त (अपील)/ The Commissioner of Income Tax (Appeals), Vijayawada. 5. ववभधगीयप्रनतनिधर्, आयकरअपीलीयअधर्करण, ववशधखधपटणम/ DR,ITAT, Visakhapatnam 6. गधर्ाफ़धईल / Guard file आदेशधि ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam