The ACIT,B.K.Circle,, Palanpur v. Shri Chunilal T.Chaudhary, Palanpur

ITA 3449/AHD/2010 | 2007-2008
Pronouncement Date: 25-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 344920514 RSA 2010
Assessee PAN AEQPC0053B
Bench Ahmedabad
Appeal Number ITA 3449/AHD/2010
Duration Of Justice 3 year(s) 10 month(s) 28 day(s)
Appellant The ACIT,B.K.Circle,, Palanpur
Respondent Shri Chunilal T.Chaudhary, Palanpur
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2014
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 25-11-2014
Date Of Final Hearing 15-10-2014
Next Hearing Date 15-10-2014
Assessment Year 2007-2008
Appeal Filed On 28-12-2010
Judgment Text
B IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH . .. . . .. . !' !' !' !' #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % % &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA VICE-PRESIDENT AND N.S. SAINI ACCOUNTANT MEMBER) ITA NO.3449/AHD/2010 [ASSTT.YEAR : 2007-2008] THE ITO WARD-1 PALANPUR. /VS. SHRI CHUNILAL T. CHAUDHARY C/O. KRISHNA ROAD CARRIER GATHAMAN PATIA AHMEDABAD HIGHWAY PALANPUR. PAN : AEQPC 0053 B ( (( ( *+ *+ *+ *+ / APPELLANT) ( (( ( -*+ -*+ -*+ -*+ / RESPONDENT) ( . / & / REVENUE BY : SHRI V.K. SINGH SR.DR 12 . / & / ASSESSEE BY : SHRI S.N. DIVETIA 3 . 24' / DATE OF HEARING : 15 TH OCTOBER 2014 567 . 24' / DATE OF PRONOUNCEMENT : 25-11-2014 &8 / O R D E R PER G.C. GUPTA VICE-PRESIDENT: THIS IS APPEAL OF THE REVENUE FOR THE ASSTT.YEAR 2007-08 IS DIRECTED AGAINST THE ORDER OF THE CIT(A). 2. THE GROUND NO.1 OF THE APPEAL OF THE REVENUE IS AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.8 74 115/- IN RESPECT OF UNACCOUNTED FREIGHT INCOME. ITA NO.3449/AHD/2010 -2- 3. THE LEARNED DR REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. HE SUBMITTED T HAT THE ASSESSEE HAS RECEIVED TOTAL AMOUNT OF RS.50.36 LAKHS FROM VARIOUS PARTIES AS TRUCK FREIGHT BUT HAS NOT REFLECTED IN THE TOTAL RECEIPT OF TRUCK FREIGHT IN ITS ACCOUNT BOOK. H SUBMITTED THAT THE ASSESSEE COULD NOT PROVE THAT HE IS ENGAGE D ONLY IN THE BUSINESS OF TRANSPORT COMMISSION AGENT AND EARNS ONLY COMMISSI ON INCOME AND IS NOT A TRUCK OPERATOR. HE SUBMITTED THAT THE ASSESSEE WA S FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND THEREFORE THE INCOME WAS CHARGE ABLE WHEN IT ACCRUES TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAS SUNDR Y DEBTORS AS WELL AS SUNDRY CREDITORS AND THEREFORE IT CANNOT BE SAID THAT HE IS MERELY KACHHA ARHATIA . HE RELIED ON ORDER OF THE AO. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS NOT OWNER OF SINGLE TRUCK AND HAS EARNED ONLY COMMISSIO N INCOME FROM THE BUSINESS OF TRANSPORT COMMISSION AGENT. HE SUBMITT ED THAT MERELY BECAUSE THE TDS CERTIFICATES WERE ISSUED IN THE NAME OF THE ASS ESSEE IS NOT A GROUND TO HOLD THAT THE ASSESSEE IS LIABLE TO ACCOUNT FOR THE GROS S RECEIPTS OF THE TRUCK FREIGHT RECEIVED BY DIFFERENT OWNERS OF THE TRUCK. HE SUBM ITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE ITAT AHMEDABAD IN ITO VS. HANS ROAD CARRIERS P. LTD. (2011) 45 SOT 149 (AHD) . 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND ALSO PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE ASSESSEE HAS T HROUGHOUT CLAIMED THAT HE IS IN THE BUSINESS OF TRANSPORT COMMISSION AGENCY ONLY AND DOES NOT OWN SINGLE TRUCK ON HIS OWN. THE ASSESSEE HAS DECLARED HIS CO MMISSION INCOME UNDER HEAD COMMISSION ACCOUNT. WE FIND THAT THE DEPARTMENT COULD NOT PROVIDE ANY SINGLE EVIDENCE TO MAKE OUT A CASE THAT THE ASSESSE E WAS HAVING HIS OWN TRUCKS OR WAS EARNING ANY INCOME FROM TRANSPORT BUSINESS APART FROM COMMISSION EARNED ON BOOKING OF TRUCKS BELONGING TO DIFFERENT PARTIES. IN THESE FACTS IT COULD NOT BE SAID THAT THE GROSS RECEIPTS OF THE FR EIGHT RECEIPT OF THE TRUCK OWNERS IS CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE U NDER MERCANTILE SYSTEM OF ITA NO.3449/AHD/2010 -3- ACCOUNTING ON ACCRUAL BASIS. THE DECISION OF THE I TAT AHMEDABAD BENCH CITED SUPRA SUPPORTS THE CASE OF THE ASSESSEE. IN THESE FACTS WE HOLD THAT THERE IS NO MISTAKE IN THE ORDER OF THE CIT(A) IN HOLDING TH AT THE ASSESSEE WAS NOT REQUIRED TO SHOW THE ENTIRE RECEIPT OF TRANSPORTATI ON AS ITS INCOME AS THE ASSESSEE WAS MERELY COMMISSION AGENT OWNING NO TRUCKS AT ALL . ACCORDINGLY THE ISSUE DECIDED IN FAVOUR OF THE ASSESSEE AND THE ORDER OF THE CIT(A) ON THIS ISSUE IS CONFIRMED AND THE GROUND NO.1 OF THE APPEAL OF THE REVENUE IS PARTLY ALLOWED AS WE DIRECT THE AO TO DISALLOW THE CLAIM OF THE AS SESSEE WITH REGARD TO THE GRANT CREDIT OF TDS ON THE TRANSPORT CHARGES NOT RE LATING TO THE ASSESSEE AND NOT TAKEN INTO CONSIDERATION WHILE MAKING THE ASSESSMEN T OF INCOME OF THE ASSESSEE FOR THE RELEVANT YEAR. WE DIRECT ACCORDINGLY. 6. THE GROUND NO.2 OF THE REVENUES APPEAL IS AS UN DER: 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE U/S.40(A)(IA) OF RS.17 11 753/- IN RES PECT OF TRUCK RENT EXPENSES ON ACCOUNT OF NON-PAYMENT OF TDS. 7. THE LEARNED DR HAS REFERRED TO THE RELEVANT PORT IONS OF THE ASSESSMENT ORDER IN SUPPORT OF CASE OF THE REVENUE. HE SUBMIT TED THAT THE ASSESSEE HAS FAILED TO DEPOSIT THE FORM NO.15-I BEFORE THE PRESC RIBED AUTHORITY AND THE CLAIM OF THE ASSESSEE THAT IT HAS OBTAINED FORM NO.15-I F ROM VARIOUS TRUCK OWNERS IS MERELY AN AFTER-THOUGHT. 8. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS OBTAINED THE PRESCRIBED FORM NO.15-I BEFORE THE DUE DATE BUT SOMEHOW COULD NOT DEPOSIT THE SAME WITH THE COMMISSIONER OF INCOM E TAX FOR WHICH SEPARATE PROCEEDINGS SHOULD HAVE BEEN INITIATED BY THE DEPAR TMENT. HE RELIED ON THE ORDER OF THE CIT(A). 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE BILLS OF TRANSPOR TATION WERE LESS THAN RS.20 000/- EACH. MOREOVER THE CIT(A) HAS REFERRE D TO VARIOUS DECISIONS OF THE ITA NO.3449/AHD/2010 -4- HONBLE COURTS IN SUPPORT OF HIS DECISION TO DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. THE ASSESSEE HAS CLAIMED THAT IT HAS OBT AINED FORM NO.15-I WITHIN THE PRESCRIBED TIME BUT COULD NOT FILE THE SAME BEFORE THE CIT. IN THESE FACTS OF THE CASE AND IN THE ABSENCE OF ANY EVIDENCE BROUGHT ON RECORD TO CONTROVERT THE SUBMISSIONS OF THE ASSESSEE WE ARE OF THE VIEW THA T NO CASE OF DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT COULD BE MADE OU T BY THE REVENUE AND THE CIT(A)S ORDER ON THIS ISSUE IS CONFIRMED AND THE G ROUND NO.2 OF THE REVENUE IS DISMISSED. 10. IN THE RESULT THE APPEAL OF THE REVENUE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## # . .. . # ## # . . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDEN T 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER DR/AR ITAT AHMEDABAD