U.Bhaskaran, CHENNAI v. ACIT, CHENNAI

CO 17/CHNY/2011 | 2005-2006
Pronouncement Date: 09-09-2011 | Result: Dismissed

Appeal Details

RSA Number 1721723 RSA 2011
Assessee PAN AAKPB7899J
Bench Chennai
Appeal Number CO 17/CHNY/2011
Duration Of Justice 7 month(s) 27 day(s)
Appellant U.Bhaskaran, CHENNAI
Respondent ACIT, CHENNAI
Appeal Type Cross Objection
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-09-2011
Date Of Final Hearing 06-09-2011
Next Hearing Date 06-09-2011
Assessment Year 2005-2006
Appeal Filed On 13-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH CHENNAI BEFORE SHRI N. S. SAINI ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER --------- I.T.A. NO. 2128/MDS/2010 ASSESSMENT YEAR : 2005-06 THE ASSISTANT COMMISSIONER OF INCOME-TAX CIRCLE-VIII CHENNAI. V. SHRI U. BHASKARAN NO. 38 III FLOOR THAMBU CHETTY STREET CHENNAI-600 001. PAN : AAKPB7899J (APPELLANT) (RESPONDENT) A N D C.O. NO. 17/MDS/2011 (IN ITA NO. 2128/MDS/2010) ASSESSMENT YEAR : 2005-06 SHRI U. BHASKARAN V. THE ASSISTANT COM MISSIONER NO. 38 III FLOOR OF INCOME-TAX CIRCLE-VIII THAMBU CHETTY STREET CHENNAI. CHENNAI-600 001. (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY : SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL ASSESSEE BY : SHRI N. SUNDAR CA DATE OF HEARING : 06 -09-2011 DATE OF PRONOUNCEMENT : 09-09-2011 I.T.A. NO.2128/MDS/2010 & CO NO. 17/MDS/2011 2 O R D E R PER GEORGE MATHAN JUDICIAL MEMBER : ITA 2128/MDS/2010 IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF THE LEARNED CIT(APPEALS)-IX CHENNAI IN ITA NO. 22/ 10-11 DATED 29-09-2010 FOR THE ASSESSMENT YEAR 2005-06. CO NO. 17/MDS/2011 I S CROSS OBJECTION FILED BY THE ASSESSEE IN THE REVENUES APPEAL IN ITA NO. 212 8/MDS/2010. 2. SHRI K.E.B. RENGARAJAN JR. STANDING COUNSEL REPR ESENTED ON BEHALF OF THE REVENUE AND SHRI N.SUNDAR CA REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ASSE SSEE IS AN INDIVIDUAL WHO IS DOING THE BUSINESS OF TRANSPORT CONTRACTOR. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD TAKEN ON HIRE VARIOUS LORRIES FOR THE PURPOSE OF HIS TRANSPORT BUSINESS. IT WAS THE SUBMISSION THAT THE ASSESSEE HAD NOT DEDUCTED TDS ON THE HIRE CHARGES AND CONSEQUENTLY THE ASSESSING OFFICER HAD INVOKED THE PROVISIONS OF SECTION 40A(IA) OF THE INCOME TAX ACT 1961 (THE A CT FOR SHORT) AND HAD DISALLOWED THE ENTIRE HIRE CHARGES. IT WAS THE SUB MISSION THAT THE LEARNED CIT(A) RELYING UPON THE DECISION OF THE JURISDICTIONAL HIG H COURT IN THE CASE OF CIT V. POOMPUHAR SHIPPING CORPORATION REPORTED IN (2006) 1 53 TAXMAN 486 (MAD) HAD DELETED THE ADDITION BY HOLDING THAT THE HIRE CHARG ES DID NOT COME UNDER THE AMBIT OF THE PROVISIONS OF SECTION 194C OF THE ACT AND CONSEQUENTLY THE DISALLOWANCE UNDER SECTION 40A(IA) WAS NOT WARRANTE D. IT WAS THE SUBMISSION I.T.A. NO.2128/MDS/2010 & CO NO. 17/MDS/2011 3 THAT THE ASSESSEE HAD PAID HIRE CHARGES FOR THE TRU CKS AND TDS WAS LIABLE TO BE MADE IN VIEW OF THE PROVISIONS OF SECTION 194C(2) O F THE ACT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LEARNED CIT(A) WAS LIABLE TO BE REVERSED. 4. IN REPLY THE LEARNED AUTHORISED REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT(A). IT WAS THE SUBMISSION THAT THE ASSESSEE IS AN INDIVIDUAL WHO HAS GOT TRANSPORT CONTRACT AGREEMENT S WITH VARIOUS CORPORATE. IT WAS THE SUBMISSION THAT THE ASSESSEE TOOK ON HIRE T RUCKS FROM VARIOUS TRUCK OWNERS AS ALSO BROKERS. IT WAS THE SUBMISSION THAT THE HIRING WAS ONLY OF THE TRUCKS. IT WAS THE SUBMISSION THAT THESE TRUCKS WE RE USED BY THE ASSESSEE IN HIS BUSINESS OF TRANSPORTATION. IT WAS THE SUBMISSION THAT THE HIRING WAS NOT FOR THE CARRIAGE OF GOODS BUT WAS ONLY OF THE VEHICLE. IT WAS THE SUBMISSION THAT AS THE FACTS IN THE ASSESSEES CASE WAS SQUARELY COVERED B Y THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF POOMPUHAR SHIPPING CORPORATION REFERRED TO SUPRA AS ALSO THE DECISION OF THE CO-ORDINATE B ENCH OF THIS TRIBUNAL IN THE CASE OF MYTHRI TRANSPORT CORPORATION REPORTED IN 124 ITD 40 (VISAKHAPATNAM) THE FINDING OF THE LEARNED CIT(A) WAS LIABLE TO BE UPHE LD. IT WAS FURTHER SUBMITTED BY THE LEARNED AUTHORISED REPRESENTATIVE THAT IN THE C ROSS OBJECTION THE ASSESSEE HAS RAISED AN ALTERNATIVE PLEA THAT THE PAYMENTS MADE D ID NOT COME WITHIN THE PURVIEW OF SS. 30 TO 38 OF THE ACT AND HENCE THE PR OVISIONS OF SEC. 40 CANNOT I.T.A. NO.2128/MDS/2010 & CO NO. 17/MDS/2011 4 BE INVOKED. IT WAS THE SUBMISSION THAT IF THE ORDE R OF THE LEARNED CIT(A) IS SUSTAINED THEN HIS ALTERNATIVE PLEA WOULD NO MORE SURVIVE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE LEARNED CIT(A) AS ALSO THE ASSESSING OFFICER CLEARL Y SHOWS THAT THE ASSESSEE HAS CATEGORICALLY ADMITTED THAT THE ASSESSEE IS TAKING ON HIRE ONLY THE TRUCKS. THE AGREEMENT IS NOT BETWEEN THE ASSESSEE AND THE TRUCK OWNERS FOR THE TRANSPORTATION OR CARRIAGE OF GOODS. ONCE IT IS NO TICED THAT THE HIRING IS ONLY OF THE TRUCKS AND THE HIRE CHARGES PAID IS NOT FOR THE PURPOSE OF CARRIAGE OF GOODS THE SAME FALLS OUT OF THE INCLUSIVE DEFINITION OF WORK AS PROVIDED IN THE EXPLANATION TO SECTION 194C OF THE ACT. THIS VIEW O F OURS ALSO FINDS SUPPORT FROM THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN TH E CASE OF CIT V. POOMPUHAR SHIPPING CORPORATION REFERRED TO SUPRA WHICH IS A LSO THE JURISDICTIONAL HIGH COURT DECISION. IN THE CIRCUMSTANCES AS IT IS NOTICED TH AT THE LEARNED CIT(A) HAS ONLY FOLLOWED THE PRINCIPLES LAID DOWN BY THE HON'BLE JU RISDICTIONAL HIGH COURT IN THE CASE OF CIT V. POOMPUHAR SHIPPING CORPORATION REFE RRED TO SUPRA FOR THE PURPOSE OF DELETING THE ADDITION WE ARE OF THE VIE W THAT NO INTERFERENCE WITH THE ORDER OF THE LEARNED CIT(A) IS CALLED FOR. IN THE CIRCUMSTANCES THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. AS WE HAVE SUSTAINED THE ORDER OF THE LEARNED CIT(A) THE CROSS OBJECTION FILED BY THE ASSESSEE D OES NOT CALL FOR ANY ADJUDICATION AND THE SAME STANDS DISMISSED. I.T.A. NO.2128/MDS/2010 & CO NO. 17/MDS/2011 5 6. IN THE RESULT BOTH THE APPEAL FILED BY THE REVE NUE AS ALSO THE CROSS OBJECTION FILED BY THE ASSESSEE STAND DISMISSED. 7. THE ORDER WAS PRONOUNCED IN THE COURT ON 09/09/2 011. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI DATED THE 09 TH SEPTEMBER 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE