Deccan Roadways, Shimoga v. Addl.C.I.T., Shimoga

ITA 468/BANG/2010 | 2006-2007
Pronouncement Date: 07-01-2011 | Result: Allowed

Appeal Details

RSA Number 46821114 RSA 2010
Assessee PAN ETHAN4100T
Bench Bangalore
Appeal Number ITA 468/BANG/2010
Duration Of Justice 8 month(s) 29 day(s)
Appellant Deccan Roadways, Shimoga
Respondent Addl.C.I.T., Shimoga
Appeal Type Income Tax Appeal
Pronouncement Date 07-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 07-01-2011
Date Of Final Hearing 25-10-2010
Next Hearing Date 25-10-2010
Assessment Year 2006-2007
Appeal Filed On 08-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K. JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ITA NO. 468/BANG/2010 ASSESSMENT YEAR : 2006-07 M/S. DECCAN ROADWAYS K.R. PURAM SHIMOGA. : APPELLANT VS. THE ADDITIONAL COMMISSIONER OF INCOME TAX SHIMOGA. : RESPONDENT APPELLANT BY : SHRI KRISHNASWAMY C.A. RESPONDENT BY : SMT. MEERA SRIVASTAVA JT. CIT (DR ) O R D E R PER A. MOHAN ALANKAMONY ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE FIRM IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT (A) HUBLI IN ITA NO: 185/ CIT (A) HBL/ 08 -09 DATED: 12.2.2010 FOR THE ASSESSMENT YEAR 2006-07. 2. THOUGH THE ASSESSEE FIRM [THE ASSESSEE IN SHO RT] HAD RAISED SEVEN GROUNDS VIRTUALLY THE SUBSTANCE WAS CONFINED TO A LONE ISSUE THAT THE AUTHORITIES BELOW ERRED IN HOLDING THAT HIRE C HARGES PAID FOR TRUCKS TO THIRD PARTY FOR THE BUSINESS USE OF THE A SSESSEE ATTRACTED THE PROVISIONS OF S.194 OF THE ACT AND THAT THE NON -DEDUCTION OF TDS COMES UNDER THE AMBIT OF S.40(A)(IA) OF THE ACT . ITA NO.468/BANG10/ PAGE 2 OF 18 3. BRIEFLY STATED THE ASSESSEE WAS IN THE BUSINES S OF TRANSPORTATION OF GOODS. DURING THE YEAR UNDER DIS PUTE THE ASSESSEE HAD PAID LORRY HIRE CHARGES OF RS.1.78 CRORES TO VARIOU S PERSONS FROM WHOM IT HAD HIRED LORRIES. IT WAS THE STAND OF THE AO THAT THOUGH THE ASSESSEE HAD PAID RS.57.94 (SIC) 54.94 LAKHS TO DIFFERENT LORRY OWNERS AGGREGATING ABOVE RS.50 000/- NO TDS U/S 194C(2) OF THE ACT WAS DEDU CTED. 3.1. BRUSHING ASIDE THE ASSESSEES CONTENTIONS AS RECORDED IN THE IMPUGNED ORDER THE AO HAD OBSERVED THUS (ON PAGE 4).IT IS DECIDED THAT THE QUESTION NO.9 OF CIRCULAR NO.715 ISSUED BY CBDT ON 8.8.1995 DOES NOT APPLY TO THIS C ASE. BECAUSE HE IS A TRANSPORT CONTRACTOR AND HE IS SUB-LETTING HIS WORK TO OTHER TRANSPORT CONTRACTORS. IN THEIR CASES THE CUSTOMERS ARE DED UCTING TDS ON THE AMOUNTS PAID TO HIM BUT FOR THE SAME WORK THE ASS ESSEE IS NOT DEDUCTING TDS FROM THE PAYMENT DONE TO ITS SUB-CONTRACTORS. THE SECOND PART OF THE ANSWER TO Q NO.9 OF CIRCULAR NO.715 IS APPLICABLE T O THIS CASE. HENCE THE ASSESSEE HAS VIOLATED THE PROVISIONS OF LAW BY NOT DEDUCTING TAX AT SOURCE U/S 194C(2) OF THE ACT. THEREFORE THE AMOUNT OF R S.54 94 728/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE U/S 40(A)(IA) OF T HE I.T. ACT. 4. AGGRIEVED THE ASSESSEE CARRIED THE ISSUE BEFOR E THE CIT(A) FOR RELIEF. AFTER DUE CONSIDERATION OF (I) THE SU BMISSIONS MADE BY THE ASSESSEE (II) REMAND REPORT OF THE AO (III) DISTI NGUISHING THE FINDING OF THE BENCH IN THE CASE OF JANANI TOURS AND RESORTS PVT. LTD. V. ACIT IN ITA NO: 491/B/08 FOR THE A.Y 2005-06 AND (IV) ANALYZING S .194C OF THE ACT AS WELL AS THE BOARDS CIRCULAR CITED SUPRA THE CIT (A) WA S OF THE FIRM VIEW THAT 4.3IT GOES TO PROVE THAT THERE WAS AN ORA L AGREEMENT/CONTRACT BETWEEN THE TRUCK OPERATORS/DRIV ERS AND THE APPELLANT THEREFORE THE APPELLANT WAS LIABLE TO DEDUCT THE T AX AT SOURCE ON SUCH PAYMENTS MADE TO THE TRUCK OPERATORS/DRIVERS IN WHO SE CASES THE AGGREGATE AMOUNT OF PAYMENT EXCEEDED RS.50 000/- IN EACH CASE IN VIEW OF THE PROVISIONS OF SECTION 194C OF THE ACT WHICH THE AP PELLANT HAS FAILED TO DEDUCT THEREFORE IS AN ASSESSEE-IN-DEFAULT. THE FAILURE TO DEDUCT TAX AT SOURCE ON SUCH PAYMENTS U/S 194C ENTAILS THE APPELL ANT DISQUALIFIED FOR ITA NO.468/BANG10/ PAGE 3 OF 18 CLAIMING SUCH EXPENSES FOR PAYMENTS IN THE P & L AC COUNT BY VIRTUE OF PROVISIONS OF SECTION 40(A)(IA) THEREFORE THE DIS ALLOWANCE MADE BY THE AO OF RS.54 94 728/- IS JUSTIFIED HENCE CONFIRMED. 5. AGGRIEVED THE ASSESSEE HAS COME UP WITH THE PR ESENT APPEAL. DURING THE COURSE OF THE HEARING IT WAS T HE CASE OF THE LD. A R THAT - THE AUTHORITIES BELOW ERRED ON HOLDING THAT THE HIR E CHARGES PAID FOR TRUCKS BY THE ASSESSEE TO THIRD PARTY FOR THE BUSIN ESS USE OF THE ASSESSEE ATTRACTED THE PROVISIONS OF S.194C OF THE ACT AND NON- DEDUCTION OF TAX AT SOURCE ATTRACTED S.40(A)(IA) OF THE ACT; - THEY OUGHT TO HAVE APPRECIATED THAT THE TRUCKS WERE OBTAINED ON HIRE AND THE PERSONNEL OF THE ASSESSEE MADE USE OF THE T RUCKS FOR THE ASSESSEES BUSINESS THE TDS WAS DEDUCTED IN RESPEC T OF TRANSPORT DONE BY THE ASSESSEE AGAINST TRANSPORT CHARGES REC EIVED; - THEY OUGHT TO HAVE APPRECIATED THAT NO WORK AS CONT EMPLATED BY S. 194C WAS TAKEN IN RESPECT OF HIRE CHARGES PAID AND HENCE PROVISIONS OF S.194C OR 40(A)(IA) WERE NOT ATTRACTE D; - THE CIT (A) ERRED IN STATING THAT FULL DETAILS OF H IRE CHARGES PAID WERE NOT FURNISHED IT WAS ADMITTED IN THE ASSESSMENT OR DER THAT SUCH DETAILS WERE RECORDED IN BOOKS PRODUCED;& - THE AUTHORITIES BELOW OUGHT TO HAVE FULLY APPRECIAT ED THAT S. 40(A)(IA) APPLIES ONLY TO INSTANCES WHERE THE AMOUNTS ARE PA YABLE AND NOT PAID AND HENCE IN A STRICT INTERPRETATION OF TH E SAID SECTION DOES NOT APPLY TO THE FACTS OF THE ASSESSEES CASE. - RELIES ON CASE LAWS: (A) CIT V. BHAGWATI STEELS (2010) 326 ITR 108 (P&H); (B) TEJA CONSTRUCTIONS V. ACIT (2010) 129 TTJ (HYD)0057 ; (C) CIT V. POOMPUHAR SHIPPING CORPORATION LTD. (2006) 2 82 ITR 3 (MAD) 5.1. ON THE OTHER HAND THE LD D. R WAS VERY EMPHA TIC IN HER RESOLVES THAT THE FIRST APPELLATE AUTHORITY HAD IN FACT ANALYZED THE ISSUE IN A COMPREHENSIVE MANNER AND DISTINGUISHED THE ISSUE FROM THE CASE LAWS ITA NO.468/BANG10/ PAGE 4 OF 18 ON WHICH THE ASSESSEE HAD PLACED ITS STRONG RELIANC E AND CAME TO A CONCLUSION THAT THE PROVISIONS OF S.40(A)(IA) OF TH E ACT WERE CLEARLY APPLICABLE IN THE ASSESSEES CASE. IT WAS THEREFO RE PLEADED THAT THE FINDINGS OF THE AUTHORITIES BELOW REQUIRE TO BE SUS TAINED. TO DRIVE HOME HER WELL ARGUED POINT SHE HAS PLACED RELIANCE ON THE F OLLOWING CASE LAWS: (A) ASSOCIATED CEMENT COMPANY LTD. V. CIT (1993) 201 IT R 435 (SC); (B) CENTRAL BOARD OF DIRECT TAXES V. COCHIN GOODS TRANS PORT ASSOCIATION (1999) 236 ITR 993 (KER); (C) SHREE CHOUDHARY TRANSPORT COMPANY V. ITO (2008) 119 TTJ (JD) 3; & (D) SHREE CHOUDHARY TRANSPORT COMPANY V. ITO (2009) 225 CTR (RAJ) 125 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS METICULOUSLY PERUSED THE RELEVANT CASE RECORDS AND ALSO VARIOUS CASE LAWS ON WHICH EITHER PARTY HAD PLACED THEIR RELIANCE. 6.1. THE ASSESSEE WAS ENGAGED IN TRANSPORTING OF G OODS TO VARIOUS CITIES/TOWNS. IT OWNED 12 VANS AND TRUCKS AND DURING THE YEAR UNDER CONSIDERATION ACCORDING TO THE ASSESSEE MOR E THAN 4100 TRIPS WERE MADE FROM 300 VANS/TRUCKS FOR WHICH FREIGHT CHARGES WERE NEGOTIATED BETWEEN THE ASSESSEE AND THE DRIVERS/OWNERS OF EACH VEHICLE AT THE TIME OF ACTUAL DISPATCH OF GOODS AND THE RATE FIXED WITH TH EM WAS RESTRICTED TO ONLY SINGLE TRIP THAT FURTHER NEGOTIATIONS WERE HELD FO R THE NEXT TRIPS AND THAT IN RESPECT OF SUCH TRIPS BY THE VANS/TRUCKS THE AMOUN T ON EACH TRIP WAS LESS THAN RS.20 000/-. 6.2. FURTHER CONTENTION OF THE ASSESSEE WAS THAT SINCE THE NEGOTIATION WITH THE DRIVERS/OWNERS OF THE TRUCKS H AD TAKEN PLACE INDEPENDENTLY FOR EACH TRIP AND THUS THE TRANSPOR TATION WAS NOT MADE ITA NO.468/BANG10/ PAGE 5 OF 18 CONTINUOUSLY UNDER ANY SPECIFIC CONTRACT. THE FORC EFUL CONTENTION OF THE ASSESSEE WAS THAT ITS CASE DOESNT FALL WITHIN THE AMBIT OF S.194C(2) OF THE ACT AS THERE MUST BE A CONTRACT IN THE FIRST INSTAN CE. IT WAS FURTHER CONTENDED THAT AS PER S.194C TAX IS TO BE DEDUCTED WHEN A CONTRACT WAS ENTERED INTO FOR CARRYING OUT ANY WORK BETWEEN THE CONTRACTOR AND THE ENTITIES MENTIONED IN SUB-CLAUSE (1) OF S.194C OF T HE ACT. IN THE INSTANCE CASE THERE WAS NO CONTRACT BETWEEN THE ASSESSEE AND THE TRUCK OWNERS FOR CARRYING GOODS FOR SPECIFIC PERIOD/QUANTITY. THE T RUCKS WERE HIRED ON PAYMENT OF HIRE CHARGES. ENTERING INTO A CONTRACT FOR HIRING OF TRUCKS WAS NOT EQUIVALENT TO ENTERING INTO A CONTRACT FOR CARR YING OUT ANY WORK. THEREFORE EXPLANATION III TO S.194C OF THE ACT WAS NOT ATTRACTED TO THE FACTS OF THE PRESENT CASE. THE PROVISIONS OF S.194C WERE APPLICABLE TO THE PAYMENTS FOR CARRYING OUT ANY WORK IN PURSUANCE OF A CONTRACT. 6.3. THIS WAS HOTLY CONTESTED BY THE AO IN HIS REM AND REPORT TO THE CIT (A) THAT 4THE ASSESSEE WAS A TRANSPORT CONTRACTOR AND HE WAS ENTRUSTING HIS WORK TO OTHER TRANSPORT CONTRACTORS FOR TRANSPORTING THE GOODS OF HIS CLIENTS. IN MOST OF THE PAYMENTS RECE IVED BY THE ASSESSEE TDS HAS BEEN DEDUCTED BY HIS CLIENTS THOU GH THERE IS NO WRITTEN CONTRACT BETWEEN THE ASSESSEE AND HIS CLIEN TS. HENCE IT WAS DECIDED THAT IF FOR THE SAME REASON WHEN THE ASSES SEE IS ASKING THE LORRY OWNER/DRIVER TO TRANSPORT THE GOODS ON WHICH THE FIRM IS RECEIVING PAYMENT AFTER DEDUCTION OF TDS THEN WHY PAYMENT DO NE BY THE FIRM DOES NOT ATTRACT DEDUCTION OF TAX WHEN THE PAYMENT MADE TO ONE LORRY DURING THE WHOLE YEAR EXCEEDS RS.50 000/-. 6.4. THE AOS FURTHER ARGUMENT WAS THAT THE PAYMENT IS DONE IN PURSUANCE OF A CONTRACT. OTHERWISE THE SAME LORRY NUMBER WILL NOT COME AGAIN AND AGAIN FOR GIVING SERVICE TO THE ASSESSEE. IT IS TRUE THAT THERE IS NO ITA NO.468/BANG10/ PAGE 6 OF 18 WRITTEN CONTRACT BETWEEN THE ASSESSEE AND LORRY OWN ERS . BUT THERE IS AN ORAL CONTRACT BETWEEN BOTH OF THEM WHICH MAKE THOSE LORRIES AVAILABLE TO THE ASSESSEE AFTER DISCHARGING ITS DUTY AT A PARTICULAR PLACE. MOREOVER THERE IS NO WRITTEN CONTRACT BETWEEN THE ASSESSEE AND ITS CL IENTS BUT STILL ON THE BASIS OF ORAL AGREEMENT THE PAYMENTS ARE BEING MADE TO T HE ASSESSEE AND TDS IS GETTING DEDUCTED. HENCE THE ASSESSEE SHOULD HAVE DEDUCTED THE TAX FROM THE PAYMENT DONE TO THE LORRY OWNERS/DRIVERS WHERE THE PAYMENT EXCEEDS RS.50000/- DURING THE YEAR AS PER S.40 (A) (IA) OF THE ACT. 6.5. IN PRINCIPLE WE ARE IN AGREEMENT WITH THE CI T (A)S PERCEPTION THAT THE CASE OF JANANI TOURS AND RESORT S PVT. LTD. V. ACIT - DECIDED BY THE HONBLE TRIBUNAL RELIED ON BY THE ASSESSEE IS DISTINGUISHABLE. 6.6. NO DOUBT IN THE CASE OF JANANI TH E ASSESSEE DID DEDUCT TDS U/S 194C OF THE ACT BUT MADE NO PAYMENTS TO THE G OVERNMENT EXCHEQUER WITHIN THE STIPULATED TIME FRAME. HOWEVER THE FOR CEFUL CONTENTION OF THE ASSESSEE IN THE CASE OF JANANI WAS THAT IT HAD UNDE R NO OBLIGATION WHATSOEVER TO DEDUCT TAX AT SOURCE U/S 194C OF THE ACT EVEN THOUGH IT HAD DEDUCTED TAX AT SOURCE BUT NOT CREDITED TO THE GO VERNMENT ACCOUNT IN TIME. ITS MAIN THRUST WAS THAT IT WAS NOT UNDER NO OBLIGATION TO EFFECT TDS WHICH WAS UPHELD BY THE TRIBUNAL FOR THE ELABORATE REASONS RECORDED IN ITS FINDING CITED SUPRA. SINCE THE PRESENT ASSESSEES CASE DOESNT TRAVEL ON THE SAME TRACK AS THAT OF JANANI THE CIT (A)S OBS ERVATION IN DISTINGUISHING THE JANANIS CASE IN OUR CONSIDERED VIEW WAS JUST IFIABLE. ITA NO.468/BANG10/ PAGE 7 OF 18 6.7 THE CIT (A)S OBSERVATION IN HIS IMPUG NED ORDER UNDER DISPUTE THAT 4.2 (B).IN THE CASE OF THE PRESENT APPELLANT I T IS THE TRANSPORTATION OF THE GOODS THROUGH THE TRUCK OPERA TORS/DRIVERS WHO UNDERTAKES THE RESPONSIBILITY TO DELIVER THE GOODS IN A GOOD CONDITION BOTH IN TERMS OR QUALITY AND QUANTITY WITHOUT ANY DAMAGE AND TO THAT EXTENT THE TRUCK OWNERS ARE LIABLE TO DISCHARGE THEIR OBLIGATI ON BOTH TO THE APPELLANT AND THE COMPANY WHOSE GOODS ARE TRANSPORTED. THIS IS IN THE LINE OF A CONTRACT. 6.8. THE CIT (A) HAD FURTHER OBSERVED THAT IN THE CASE OF THE PRESENT ASSESSEE PAYMENT WAS MADE TO INDIVIDUAL LORRY OWNE RS/DRIVERS AT A FIXED RATE PER METRIC TONNE FOR A PARTICULAR DISTANCE WHE RE THE GOODS WERE DESTINATED. HOWEVER THE ASSERTION OF THE ASSESSEE WAS THAT THE FREIGHT WAS NEGOTIATED BETWEEN THE ASSESSEE AND THE DRIVER/ OWNER FOR EACH VAN/TRUCK AT THE TIME OF ACTUAL DISPATCH OF GOODS T O DIFFERENT DESTINATIONS. 6.9. WHEN THE ASSESSEE HAD INDULGED ITS BU SINESS DURING THE PERIOD UNDER DISPUTE WITH THE OWNERS/DRIVERS OF MORE THAN 300 VANS/TRUCKS AS ADMITTED BY THE REVENUE THERE WOULD HAVE BEEN A CH ANCE AND POSSIBILITY OF DISPATCHING THE GOODS WITH THE SAME OPERATOR WHO HAD EARLIER CARRIED THE GOODS FROM THE ASSESSEE. 6.10. LET US NOW ANALYZE THE BASIC DIFFE RENCE BETWEEN THE CASE OF JANANI (ON WHICH THE ASSESSEE HAD PLACED STRONG REL IANCE) AND THAT OF THE PRESENT ASSESSEE AS UNDER: (A) JANANI HAD HIRED CABS FROM THE OTHERS FOR THE PURPO SE OF CARRYING OUT ITS CONTRACTUAL OBLIGATION ENTERED INT O WITH ITS ITA NO.468/BANG10/ PAGE 8 OF 18 CUSTOMERS [DELL INTERNATIONAL HEWLETT PACKARD GLOB AL-SOFT LIMITED GE CAPITAL ETC.] THE QUESTION WAS WHETHER HIRING OF CABS FOR THE PURPOSE OF USING THE SAME IN THE ASSES SEES BUSINESS WOULD AMOUNT TO CONTRACT FOR CARRYING OUT ANY WORK. THE TERM HIRE IS NOT DEFINED IN THE INCOME-TAX ACT. NORMA LLY HIRE IS A CONTRACT BY WHICH ONE GIVES TO ANOTHER THE TEMPORAR Y POSSESSION AND USE OF PROPERTY AND THE LATTER AGREES TO RETURN THE PROPERTY AFTER THE EXPIRY OF THE PERIOD. ACCORDINGLY JANANI HAD HIRED THE CABS FOR TRANSPORTING THE EMPLOYEES OF THE ABOVE NA MED COMPANIES WITH WHOM JANANI HAD ENTERED INTO AGREEME NT FROM THEIR WORK PLACES TO THEIR RESIDENCES AND VICE VERS A. HOWEVER IN THE CASE OF THE PRESENT ASSESSEE AS AD MITTED BY IT THAT THE FREIGHT WAS NEGOTIATED BETWEEN THE ASSESSE E AND THE DRIVER/OWNER FOR EACH VAN/TRUCK AT THE TIME OF ACTU AL DISPATCH OF GOODS TO DIFFERENT DESTINATIONS. THUS THE ASSESSE E HAD IN FACT ASSIGNING THE WORK OF CARRYING ON THE GOODS FROM IT S PREMISES TO VARIOUS DESTINATIONS TO THE DRIVER/OWNER OF THE VAN /TRUCK. IT IS NOTEWORTHY TO MENTION HERE THAT THE ASSESSEE HAD NO T TAKEN TEMPORARY POSSESSION OF THE VEHICLE(S) TO CARRY OUT THE WORK OF TRANSPORTATION OF THE GOODS BY ITSELF IN STEAD IT HAD ASSIGNED THE WORK TO THE DRIVERS/OWNERS OF THE VEHICLES. THIS W AS QUITE CONTRAST TO THE CASE OF JANANI WHEREIN (AT THE COST OF REPETITION) IT HAD HIRED THE CABS AND TOOK THEM IN ITS POSSESSI ON FOR A TEMPORARY PERIOD AND THAT THE CABS WERE TO BE RETU RNED TO ITS OWNERS IMMEDIATELY AFTER THE PERIOD WAS EXPIRED. JANANI LIKE POOMPUHAR SHIPPING CORPORATION LIMITED [PSCL] WAS ALSO LIABLE TO PAY COMPENSATION OR HIRE CHARGE S FOR USING OR KEEPING TEMPORARY POSSESSION OF THE CABS HIRED FOR CERTAIN PERIOD. THEREFORE WHEN JANANI TOOK TEMPORARY POSS ESSION OF CABS FROM THE CAB OWNERS IT CANNOT BE CONSTRUED THAT IT HAD ENTERED INTO A CONTRACT FOR CARRYING OUT ANY WORK . THE INTENTION OF THE LEGISLATURE WAS VERY CLEAR FRO M THE PROVISIONS OF SECTION 194C. IF ANY CONTRACT WAS E NTERED INTO FOR CARRYING OUT ANY WORK THEN THE ASSESSEE WAS LIABLE TO DEDUCT TAX. MERELY HIRING OF VEHICLE CANNOT BE CONSTRUED AS IF THE ASSESSEE ENTERED INTO A CONTRACT FOR CARRYING OUT A NY WORK. HOWEVER IN THE PRESENT CASE THE ASSERTION OF THE ASSESSEE WAS THAT AFTER A DEAL WAS STRUCK WITH THE DRIVER/OWNER OF THE VEHICLE WITH REGARD TO THE FREIGHT CHARGES THE DRIVERS WER E UNDER OBLIGATION TO CARRY OUT THE WORK ASSIGNED BY THE ASSESSEE I.E. TO CARRY THE GOODS FROM THE ASSESSEES PREMISES TO THE IR DESTINATIONS. ITA NO.468/BANG10/ PAGE 9 OF 18 6.11. LET US NOW LOOK AT THE ARRANGEMENTS IN THE CASE OF JANANI BETWEEN THE ASSESSEE AND THE OWNERS OF THE CABS: (I) THE OWNERS OF THE CABS LENT THEIR CABS ON HIRE T O THE ASSESSEE; (II) THE OWNERS OF CABS PROVIDE DRIVERS FOR THE VEHICLE S WHO SHALL FOLLOW THE INSTRUCTIONS OF THE ASSESSEE IN TRANSPOR TING THE EMPLOYEES OF THE COMPANIES WITH WHOM THE ASSESSEE H AD ENTERED INTO AGREEMENT(S); (III) THE OWNERS PROVIDE THEIR VEHICLES TO THE ASS ESSEE FOR CERTAIN PERIOD AND DELIVER THEIR CABS TO THE ASSESSEE COMPA NY AND ON TAKING POSSESSION OF SUCH VEHICLES THEY WOULD B E DRAFTED BY THE ASSESSEE TO FERRY THE EMPLOYEES AS PER ITS D IRECTIONS; (IV) PAYMENT OF HIRE TO BE MADE AS PER NEGOTIATIONS ALREADY MADE. 6.12. IT WAS VERY CLEAR FROM THE ABOV E THAT THE ASSESSEE IN THE CASE OF JANANI HAD HIRED THE CABS AS AND WHEN REQUIRED AND USED THE SAME FOR THE PURPOSE OF TRANSPORTING THE EMPLOYEES FROM THEIR WORK SPOTS TO THEIR RESIDENCES AND VICE VERSA AND TRANSPORTI NG OF SUCH EMPLOYEES WERE NOT ENTRUSTED TO THE OWNERS OF THE CABS. THE RESPONSIBILITY OF TRANSPORTING OF THE EMPLOYEES REMAINED WITH THE ASS ESSEE IN THE CASE OF JANANI. IN OTHER WORDS THERE WAS NO SUB-CONTRACT [FOR TRANSPORTING THE EMPLOYEES] BETWEEN JANANI AND THE OWNERS OF THE CAB S FROM WHOM JANANI HAD REQUISITIONED THE VEHICLES ON HIRE . 6.13. WE ARE IN TOTAL AGREEMENT WITH THE OB SERVATION OF THE LD. CIT (A) IN THE CASE OF JANANI THAT 4.2.(D).THE OWNERS OF THE CABS LENT THEIR CABS ON HIRE TO THE APPELLANT PROVIDED THE DRIVERS FOR VEHICLES PROVIDED THEIR VEHICLE FOR A CONTRACT PERIOD ON AGREED HIRE CHARGES. BUT IN THE CASE OF THE PRESENT APPELLANT THE OWNERS OF THE VEHICLES ARE NOT KNOWN AND THE PAYMENTS WERE MADE TO THE DRIVERS BY HIRING THEIR S ERVICES ALONG WITH THE ITA NO.468/BANG10/ PAGE 10 OF 18 VEHICLES FOR TRANSPORTATION OF GOODS ON CERTAIN TER MS AND CONDITIONS WHICH ARE MUTUALLY FIXED BEFORE THE SERVICES OF THE VEHIC LES ARE ENGAGED. IN OTHER WORDS THE TRUCK OPERATORS/DRIVERS DETERMINED THE P RICE FOR CARRYING OUT A PARTICULAR WORK LOOKING AT THE QUANTITY OF THE GOOD S AND THE DISTANCE TO BE COVERED. BUT IN THE CASE OF M/S. JANANI TOURS & R ESORTS DISTANCE REMAINS THE SAME. HENCE NO SUCH CONTRACT IS REQUIRED WHIC H IS REQUIRED IN THE CASE OF PRESENT APPELLANT FOR TRANSPORTATION OF GOO DS SAFELY IN GOOD CONDITION. 6.14. IN THE CASE OF JANANI THE VEHICLES WERE DETAILED BY THEIR OWNERS ON HIRE CHARGES WHEREAS IN THE CASE OF ASSESSEE TH E OWNERS OF VEHICLES WERE NOT KNOWN ETC. 6.15. IN THIS CONNECTION WE WOULD LIKE TO POINT OUT THAT ON THE BASIS OF DESTINATED PLACE(S) AND THE QUANTITY OF GOODS TO BE TRANSPORTED THE RATES WERE DETERMINED AND THAT THERE WAS A QUESTION OF C ERTAIN TERMS AND CONDITIONS MUTUALLY AGREED UPON BEFORE ENGAGING THE SERVICES OF SUCH VEHICLES. THERE WOULD HAVE BEEN TERMS AND CONDITI ONS ENTERED INTO BETWEEN THE ASSESSEE AND THE TRUCK OWNERS/DRIVERS ACCORDING TO WHICH THE TRUCK-WALLAHS WERE EXPECTED TO DELIVER THE GOOD S AT A DESTINATED PLACE. IN THE CASE OF JANANI - FOR HAVING ENTERED INTO AGR EEMENTS WITH SOME OF I.T. GIANTS FOR FERRYING THEIR EMPLOYEES FROM THEIR RESI DENCES TO WORK SPOTS AND BACK ENGAGED THE CABS ON HIRE BASIS TO FULFILL IT S COMMITMENTS AND THE HIRE CHARGES WERE BASED ON THE DISTANCE AND THE NUM BER OF EMPLOYEES TO BE FERRIED ON EACH TRIP ETC. IN THE PRESENT CASE FOR HAVING AGREED UPON WITH ITS CUSTOMERS TO DELIVER THEIR GOODS TO THE PR E-DETERMINED DESTINATIONS ITA NO.468/BANG10/ PAGE 11 OF 18 THE ASSESSEE REQUISITIONED THE TRUCKS/VANS TO CARRY THE GOODS TO THEIR DESTINATIONS IN OTHER WORDS THE ASSESSEE ASSIGNE D THE WORK OF CARRYING ON THE GOODS TO THE DRIVERS OF THE VEHICLES. TO ILL USTRATE FURTHER EVEN IN THE CASE OF JANANI WHILE ENGAGING THE CABS ON HIRE BAS IS THE DISTANCE OF WORK SPOTS THE NUMBER OF EMPLOYEES TO BE CARRIED IN A T RIP HIRE CHARGES TO BE PAID ETC. WOULD HAVE BEEN PRE-DETERMINED WITH THE O WNERS/DRIVERS OF THE CABS HOWEVER IN THE PRESENT CASE THE SAME FORMUL A WILL HAVE NO APPLICATION IN THE SENSE THAT THE QUANTITY OF GOOD S AND THE DESTINATION HIRE CHARGES WILL VARY ON EACH AND EVERY TRIP. SUCH BEI NG A GROUND REALITY WE FAIL TO GUESS AS TO HOW THE RATIO LAID DOWN IN THE CASE OF JANANI COULD BE APPLICABLE TO THE ISSUE UNDER DISPUTE AS PORTRAYED BY THE LD. AR. 6.16. EXTENSIVELY QUOTING THE FINDING IN THE CASE OF JANANI CITED SUPRA THE LD. CIT (A) HAD OBSERVED THUS 4.2 (F) .BUT IN THE CASE OF PRESENT APPELLANT THE AO HAS BROUGHT OUT AMPLE EVIDENCES TO SHOW THAT THERE EXISTED AN O RAL CONTRACT BETWEEN THE TRUCK OPERATORS/DRIVERS AND THE APPELLANT IN TERMS OF RATE PER TONNAGE QUANTITY AND DISTANCE INCLUDING THE SAFE DELIVERY O F GOODS TO THE DESTINATION. FURTHER THAT THE CONCEPT OF AGGREGATION OF GRS APP LIES TO THE REPETITION OF THE SAME TRUCKS THE AGGREGATE AMOUNT OF WHICH IS LI ABLE TO TDS AS PER BOARDS CIRCULAR. HENCE THE FACTS ARE QUITE DISTI NGUISHABLE. 6.17. WE HAVE DILIGENTLY PERUSED - TO REFRES H OURSELVES - THE FINDING OF THE EARLIER BENCH IN THE CASE OF JANANI. FOR APPRE CIATION OF FACTS THE RELEVANT PORTION OF WHICH IS REPRODUCED AS UNDER: 4.11.1. FURTHER A SIMILAR ISSUE WAS CONSIDERED BY THE HONBLE PUNJAB & HARYANA HIGH COURT REPORTED IN (2008) 217 CTR (P&H) 332: (2008) 8 DTR 305. THE ISSUE BEFORE THE HONBLE COU RT AND ITS DECISION FOR PROPER UNDERSTANDING AND COMPARISON IS SUMMARIZED IN THE FOLLOWING MANNER : ITA NO.468/BANG10/ PAGE 12 OF 18 (A) THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF MANUFACTURE AND EXPORT OF RICE. DURING THE COURSE OF EXPORT ACTIVITY RICE WAS TRANSPORTED FROM SAMANA BAHU TO KANDLA PORT. WHENEVER THERE WAS NEED FOR TRANSPORTATION OF GOODS FROM BUSINESS PREMISES TO KANDLA PORT THE ASSESSEE USED TO ENGAGE TRUCKS THROUGH TRANSPORTERS. (B) TRUCKS WERE PROVIDED BY THE TRANSPORTERS AND THEIR CONSIDERATION FOR PROVIDING SUCH SERVICES WOULD BE CHARGED FROM T HE TRUCK OWNERS/OPERATORS. THE HIRE CHARGES WERE PAID BY T HE ASSESSEE DIRECTLY TO THE TRUCK OWNERS OR THROUGH TRANSPORTER S. THE ASSESSEE WAS MAINTAINING RECORDS REGARDING OWNERSHIP OF TRUC K REGISTRATION NUMBER PHOTO OF DRIVERS ETC. THERE WA S NO REPETITION OF PAYMENTS TO THE SAME TRUCK OWNERS/TRUCK OPERATOR S FOR ANY SPECIFIED PERIOD. THUS THERE WAS NO CONTRACT WITH ANY OF THE LOCAL TRANSPORTERS OR TRUCK OWNERS. (C) IN CASE OF NON-AVAILABILITY OF TRUCKS AT THE PLACE OF ASSESSEES BUSINESS THE ASSESSEE USED TO ARRANGE TRUCKS FROM DELHI FOR WHICH THE SERVICES OF M/S.EAST WEST CARGO MOVERS [E WCM] NEW DELHI WERE AVAILED. PAYMENTS WERE MADE TO SUCH TR UCK OPERATORS BY EWCM ON BEHALF OF THE ASSESSEE AND THE ASSESSEE IN TURN REIMBURSED THE SAID PAYMENTS TO EWCM. IN EACH CASE THE PAYMENT WAS LESS THAN RS.20000/-. (D) DURING THE COURSE OF ASSESSMENT PROCEEDINGS SEPARA TE GR/BILLS/DOCUMENTS WERE OBTAINED SHOWING THEREIN WE IGHT AMOUNT DESTINATION TRUCK NUMBER EACH GR VALUE I. E TRANSPORTATION CHARGES TO KANDLA PORT WERE OF THE VALUE LESS THAN RS.20000 EACH AND THAT THE ASSESSEE SHOULD HAVE DED UCTED TAX AT SOURCE ON THE AMOUNT PAID EWCM. THE AO ALSO FOUND THAT SIMILAR PAYMENT HAD BEEN MADE TO LEELADHAR PASOO FO RWARDERS (P) LTD. AND SOME OTHER TRANSPORTERS BUT NO TAX HAS BEEN DEDUCTED AT SOURCE U/S 194C. THEREFORE THE ASSESSEE WAS IN DEFAULT FOR SHORT DEDUCTION OF TAX U/S 201 OF THE ACT AND ALSO LEVIED INTEREST U/S 201(1A) OF THE ACT. (E) ON AN APPEAL THE CIT(A) OBSERVED THAT THERE WAS NE ITHER ANY ORAL NOR WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE TRANSPORTERS/CLEARING AGENTS FOR CARRIAGE OF THE GO ODS AND THAT IT HAD NOT BEEN PROVED THAT ANY MONEY REGARDING FREIGH T CHARGES WAS PAID TO THEM IN PURSUANCE OF A CONTRACT FOR SP ECIFIC PERIOD QUANTITY OR PRICE. IT WAS HELD THAT THE ASSESSEE W AS NOT LIABLE TO DEDUCT ANY TAX ON THE FREIGHT CHARGES PAID TO TRUCK OWNERS/OPERATORS. ITA NO.468/BANG10/ PAGE 13 OF 18 (F) ON FURTHER APPEAL THE HONBLE TRIBUNAL HELD THAT AS PER THE PROVISIONS OF SECTION194C ANY PERSON RESPONSIBLE F OR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK IN PU RSUANCE OF A CONTRACT SHALL AT THE TIME OF CREDIT OF SUCH SUM OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY CHEQUE DEDUCT A TAX T HEREON AT PRESCRIBED RATE. IN THE INSTANT CASE PAYMENT OF TR ANSPORTATION CHARGES PAID TO TRUCK OWNERS/FORWARDING AGENTS WERE CONSIDERED BY THE AO AS LIABLE FOR DEDUCTION OF TAX AT SOURCE. THE AO HAD HELD THE ASSESSEE LIABLE FOR DEDUCTION OF TAX U/S 1 94C ON THE ASSUMPTION THAT THE ASSESSEE WAS HAVING AGREEMENT W ITH THE PARTIES THROUGH WHOM TRUCKS WERE ARRANGED FOR TRANS PORTATION OF GOODS. AS PER THE FINDINGS OF THE CIT(A) WHICH WAS NOT CONTROVERTED BY THE DEPARTMENT THERE WAS NEITHER A NY ORAL OR WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND TRANSPOR TERS FOR CARRIAGE OF GOODS. NOR IT HAS BEEN PROVED THAT ANY SUM OF MONEY REGARDING FREIGHT CHARGES WAS PAID TO THEM IN PURSU ANCE OF A CONTRACT FOR SPECIFIC PERIOD QUANTITY OR PRICE. (G) AS PER QUESTION NO.6 OF CIRCULAR NO.715 [127 CTR (S T) THE PERQUISITE CONDITION FOR DEDUCTION OF TAX WAS THAT THERE MUST BE CONTRACT FOR CARRIAGE OF GOODS. THUS THE PAYMENT MADE TO THESE C&F AGENTS HAS TO BE SEEN WHETHER TAX WAS REQUIRED TO BE DEDUCTED FROM THE PAYMENTS MADE TO THESE AGENTS FOR CARRIAGE OF GOODS IF THERE IS A CONTRACT FOR CARRIAGE OF GOODS . NORMALLY EACH GR SHOULD BE TREATED AS SEPARATE CONTRACT BUT IF T HE GOODS ARE TRANSPORTED CONTINUOUSLY IN PURSUANCE OF A CONTRACT FOR SPECIFIC PERIOD OR QUANTITY ALL GRS RELATING TO THAT PARTY OR QUANTITY SHOULD BE AGGREGATED FOR THE PURPOSE OF TDS. WHAT IS MOST IMPORTANT IS A CONTRACT FOR A SPECIFIC PERIOD OR QU ANTITY FOR CARRIAGE OF THE GOODS. HOWEVER NOTHING WAS BROUGH T ON RECORD BY THE AO TO PROVE THAT THERE WAS ANY WRITTEN OR OR AL AGREEMENT BETWEEN THE ASSESSEE AND THE ALLEGED PARTIES FOR CA RRIAGE OF GOODS. (H) CONSIDERING THE FINDING OF THE CIT(A) AS WELLS THE HONBLE TRIBUNAL AND ALSO ANALYZING THE PROVISIONS OF SECTI ON 194C THE HONBLE H.C. HAS HELD THAT THE TRIBUNAL HAS CLEARLY STATED THAT NOTHING HAS BEEN BROUGHT ON RECORD BY THE AO TO PRO VE THAT THERE WAS NO (SIC) WRITTEN OR ORAL AGREEMENT BETWEEN THE ALLEGED PARTIES FOR CARRIAGE OF GOODS. 4.11.2 . IN COMPARISON WITH THE DECISION OF THE HONBLE HI GH COURT WITH THAT OF THE ISSUE ON HAND WE OBSERVE THAT - ITA NO.468/BANG10/ PAGE 14 OF 18 (A) THE PRESENT ASSESSEE COMPANY WAS ENGAGED IN THE BUS INESS OF TAXI OPERATION. DURING THE COURSE OF ITS BUSINESS WHEN EVER THERE WAS A DEMAND FOR EXTRA CABS FOR TRANSPORTATION OF THE E MPLOYEES OF COMPANIES WITH WHOM THE ASSESSEE HAD ENTERED INTO A GREEMENT(S) THE ASSESSEE HAD USED TO ENGAGE OTHER CABS . THE HIRE CHARGES FOR SUCH HIRED CABS WERE PAID BY THE ASSESSEE DIREC TLY TO THE CAB OWNERS . THE ASSESSEE WAS MAINTAINING RECORDS REGARDING OWNERSHIP OF CABS REGISTRATION NUMBER PHOTO OF DR IVERS ETC. THERE WAS NO CONTRACT OR SUB-CONTRACT WITH ANY OF T HE CAB OWNERS FOR EXECUTION OF WORK. IT WAS A MERE ARRANGE MENT TO HIRE OUT THEIR VEHICLE FOR A SPECIFIC PERIOD. (B) DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO HAD CALLED FOR CERTAIN DETAILS AS THE ASSESSEE HAD DEDUCTED TA X WHICH WAS REMITTED BEYOND THE DUE DATE. THE AO WITHOUT RECO RDING THE REASONS FOR HER ACTION DISALLOWED UNSCRUPULOUSLY T HE ENTIRE AMOUNT OF RS.6 78 28 696/- BY APPLYING THE PROVISIO NS OF SECTION 40(A)(IA) OF THE ACT. (C) ON AN APPEAL THE CIT(A) HAD ALSO MERELY ENDORSED T HE ACTION OF THE AO WITHOUT GIVING A FINDING WHETHER THE PROVI SIONS OF SECTION 194C OF THE ACT IS APPLICABLE IN THE CASE OF THE AS SESSEE AND IF SO THE REASONS FOR SUCH A CONCLUSION OUGHT TO HAVE BE EN RECORDED WHICH IS NOT FORTH-COMING IN THE IMPUGNED ORDER. (D) AS PER THE PROVISIONS OF SECTION194C ANY PERSON RE SPONSIBLE FOR PAYING ANY SUM TO ANY RESIDENT FOR CARRYING OUT ANY WORK IN PURSUANCE OF A CONTRACT SHALL AT THE TIME OF CREDIT OF SUCH SUM OR AT THE TIME OF PAYMENT THEREOF IN CASH OR BY CHEQUE DEDUCT A TAX THEREON AT PRESCRIBED RATE. IN THE INSTANT CASE PA YMENT OF TRANSPORTATION CHARGES PAID BY THE ASSESSEE TO THE CAB OWNERS FOR HAVING ENGAGED THEIR CABS. THERE WAS NEITHER ANY ORAL OR WRITTEN AGREEMENT BETWEEN THE ASSESSEE AND THE CAB OWNERS. UNFORTUNATELY NEITHER THE AO NOR THE CIT(A) HAD EX AMINED THIS VITAL FACT TO PROVE THAT ANY SUM OF MONEY REGARDING HIRE CHARGES WERE PAID BY THE ASSESSEE IN PURSUANCE OF A CONTRAC T FOR SPECIFIC PERIOD. (E) AS PER QUESTION NO.6 OF CIRCULAR NO.715 [127 CTR (S T) THE PERQUISITE CONDITION FOR DEDUCTION OF TAX WAS THAT THERE MUST BE CONTRACT FOR CARRIAGE OF GOODS. THUS THE PAYMENT MADE TO THE CAB OWNERS HAS TO BE SEEN WHETHER TAX WAS REQUIRED TO BE DEDUCTED FROM THE PAYMENTS MADE TO THEM PROVIDED THERE IS A CONTRACT FOR CARRIAGE OF GOODS . THESE FACTS HAVE NOT BEEN LOOKED INTO. WHAT IS MOST IMPORTANT IS A CONTRACT FOR A SPECIFIC PERIOD FOR CARRIAGE OF THE GOODS OR PASSENGERS . HOWEVER NOTHING WAS ITA NO.468/BANG10/ PAGE 15 OF 18 BROUGHT ON RECORD BY THE AO TO PROVE THAT THERE WAS ANY WRITTEN OR ORAL AGREEMENT BETWEEN THE ASSESSEE AND THE CAB OWNERS. 4.12. WE ARE THEREFORE OF THE FIRM VIEW THAT TH E ASSESSEE HAD HIRED THE CABS FOR THE PURPOSE OF CARRYING ON ITS B USINESS AND IT CANNOT BE SAID BY ANY STRETCH OF IMAGINATION THAT T HERE WAS A CONTRACT TO CARRY OUT THE WORK AND ACCORDINGLY THE HIRE CH ARGES PAID TO OUR CONSIDERED VIEW WERE NOT COVERED BY THE PROVISIONS OF SECTION 194C OF THE ACT. 6.18. IN A NUT-SHELL THE ISSUE BEFORE US IS NOT SIMILAR AND IDENTICAL TO THAT OF M/S.JANANI TOURS AND RESORTS P VT. LIMITED CITED SUPRA. WE ARE THEREFORE OF THE CONSIDERED VIEW THAT THE PRESENT ISSUE CANNOT AT ANY STRETCH OF IMAGINATION BE EQUATED WITH THAT OF JANANI. 7. LET US NOW ANALYZE THE ISSUE ON MERITS . NO DOUBT THE REVENUE HAD FAILED TO BRING ANY COMPREHENSIVE AND IMPECCABL E DOCUMENTARY EVIDENCE TO NAIL THE ASSESSEE THAT IT HAD IN FACT ENTERED INTO ANY CONTRACT ORAL OR OTHERWISE WITH THE TRUCK OWNERS/DRIVERS TO CARRY THE GOODS TO THEIR DESTINATIONS. ON THE SAME BREATH THE ASSESSE ES CONTENTION THAT THERE WAS NO INSTANCE OF ANY GOODS BEING TRANSPORTE D CONTINUOUSLY IN PURSUANCE OF A CONTRACT BY ANY OPERATOR FOR ANY SPE CIFIC PERIOD OR QUANTITY EACH TRIP BY AN OPERATOR IS A SEPARATE CONTRACT AND HAS NO CONNECTION WHATSOEVER WITH ITS EARLIER OR FUTURE TRIPS FOR US CANNOT BE TAKEN ON ITS FACE VALUE SINCE THE AO HAD IN HIS IMPUGNED ORDER OBSERVED THAT IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE HAS FILED A NOTE BOOK WHERE LORRY NO. AMOUNT PAID AND DATE ETC. ARE ME NTIONED. THE WHOLE DATE ITA NO.468/BANG10/ PAGE 16 OF 18 WAS FED INTO THE COMPUTER AND A PROGRAMME WAS RUN T O FIND OUT THE PAYMENT DONE BY THE ASSESSEE TO A PARTICULAR LORRY NO. AGGR EGATING TO RS.50 000/- OR MORE DURING THE WHOLE YEAR. IT IS FOUND FROM THIS EXERCISE THAT THE ASSESSEE HAS PAID RS.57 94 728/- TO DIFFERENT LORRY NOS. AGG REGATING ABOVE RS.50 000/- DURING THE WHOLE YEAR FOR SEVERAL NUMBE R OF TRUCKS UNDER TAKEN BY THEM ON BEHALF OF THE ASSESSEE THIS FACT HAS NEITHER BEEN ADDRESSED BY THE ASSESSEE NOR THE AO HAD BROUGHT ON RECORD AN Y CREDIBLE EVIDENCE TO PIN DOWN THE ASSESSEE. OF COURSE THE AO HAD CO NVENIENTLY TAKEN SHELTER UNDER THE CIRCULAR NO.715 OF C.B.D.T. (PREC ISELY SECOND PART OF ANSWER TO QUESTION NO.9). HOWEVER HE HAD NOT RECO RDED HIS REASONS UNAMBIGUOUSLY TO BRING THE ASSESSEES CASE ON PAR W ITH THE SAID CIRCULAR. 7.1. DURING THE COURSE OF HEARING IT WAS FORCEFULLY ARGUED THAT THE TRUCKS WERE OBTAINED ON HIRE AND THE PERSONNEL OF T HE ASSESSEE MADE USE OF THE TRUCKS FOR THE ASSESSEES BUSINESS ETC . HOWEVER NO TANGIBLE DOCUMENTARY PROOF WAS ADVANCED EVEN AT THE STAGE OF HEARING BEFORE THIS BENCH TO BELIE THE STAND OF THE AUTHORITIES BELOW. 7.2. IT MAY BE POINTED OUT THAT SOME OF THE COM PANIES OWNING LORRIES/TRUCKS WOULD HAVE ENGAGED THEIR VEHICLES WI TH DRIVERS TO THE ASSESSEE FOR TRANSPORTING THE GOODS. THERE WERE AL SO QUITE POSSIBILITIES THAT MOST OF THE LORRY OWNERS WHO THEMSELVES AT THE WHEELS COULD HAVE BEEN ENGAGED BY THE ASSESSEE TO CARRY THE GOODS. TH ERE WERE ALSO INSTANCES THAT SOME OF THE LORRY COMPANIES HAVING F LEET OF VEHICLES WITH ADEQUATE DRIVERS ON SHIFTS WOULD HAVE LENT THEIR SA ME VEHICLES WITH DIFFERENT DRIVERS ON DIFFERENT DAYS FOR CARRYING TH E GOODS WHICH COULD HAVE ITA NO.468/BANG10/ PAGE 17 OF 18 CONTRIBUTED IN MAKING A NUMBER OF TRIPS DURING THE PERIOD AND IN SOME CASES THE LORRY COMPANIES COULD HAVE LEASED OUT TH EIR VEHICLES ON MONTHLY BASIS TO THE PERSONS WHO INTENDED TO DRIVE SUCH VEH ICLES THEMSELVES TO THRIVE THEIR FORTUNES. THIS COULD HAVE CONTRIBUTED THE POSSIBILITIES AND INSTANCES OF MAKING REPEATED TRIPS BY A SAME TRUCK OR VAN DURING THE COURSE OF THE YEAR. THESE ASPECTS AS TO THE EXISTE NCE OF CONTRACT BETWEEN THE ASSESSEE AND OWNER OF THE VEHICLE/DRIVER OF THE VEHICLE/DRIVER OF THE VEHICLE WHO MAY HAVE HIRED THE VEHICLE FOR HIS BUSI NESS ETC. HAVE NOT BEEN PROPERLY EXAMINED OR/AND LOOKED INTO BY THE AS SESSING OFFICER. 7.3. IN AN OVERALL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE ISSUE AS DETAILED IN THE FORE-GOING PARAGRAPHS WE ARE OF THE CONSIDERED VIEW THAT THE ISSUE SHOULD BE REMITTED BACK ON TH E FILE OF THE AO FOR FRESH CONSIDERATION WITH AN EXPLICIT DIRECTION TO LOOK IN TO THE ISSUE COMPREHENSIVELY AND TO ARRIVE AT THE CONCLUSION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AS TO WHETHER THE ASSESSEES CASE FALLS WITHIN THE AMBIT OF THE PROVISIONS OF SECTION 194C OF THE ACT OF COURSE AFTER AFFORDING A REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IN THE MEANWHILE THE ASSESSEE THROUGH ITS LD. A.R IS AD VISED TO FURNISH THE NAMES OF ADDRESSES OF THE DRIVERS/OWNERS OF THE VEH ICLES TO WHOM IT HAD ALLEGED TO HAVE NEGOTIATED WITH REGARD TO FREIGHT C HARGES AT THE TIME OF ACTUAL DISPATCH OF GOODS ETC. WHICH WOULD FACILITA TE THE AO TO CARRY OUT THE DIRECTIONS OF THIS BENCH IN AN EXPEDITIOUS MANNER. IT IS ORDERED ACCORDINGLY. ITA NO.468/BANG10/ PAGE 18 OF 18 7.4 BEFORE PARTING WITH WE WOULD LIKE TO POINT OUT THA T THE ENTIRE ISSUE HAS SINCE BEEN REMITTED BACK ON THE FILE OF T HE AO FOR FRESH CONSIDERATION ON THE BASIS OF DIRECTIONS RECORDED S UPRA WE HAVE NOT DISCUSSED THE MERITS OR DEMERITS OF THE CASE LAWS O N WHICH EITHER PARTY HAD PLACED THEIR RELIANCE. 8. IN THE RESULT : THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF JANUARY 2011. SD/- SD/- ( GEORGE GEORGE K. ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE DATED THE 7 TH JANUARY 2011. DS/- COPY TO: BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE. 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE