2014 (7) TMI 57 - HC - Income Tax

Court upholds tax deduction on sub-contracts, disallows expenses under Section 40(a)(ia).

M/s. Palam Gas Service Versus Commissioner of Income Tax

The court dismissed the appeal, upholding the lower authorities' findings that the appellant's payments constituted sub-contracts under Section 194C(2), ... Liability to deduct TDS from payment u/s 194C - assessee being merely administrator or acting as transporter - hiring of independent truck owners by the assessee – Freight expenses u/s 40(a)(ia) of the Act – Held that:- The tender for carriage of LPG from IOC Baddi was in the name of the assessee himself and that he had hired the trucks from the aforesaid three persons for the purpose of carrying out the work undertaken by him as a ‘Contractor’ from the IOC, Baddi - While insofar as the transportation work carried out by the said three persons is concerned, the assessee had no liability to provide anything such as the drivers, fuel, accessories etc. rather the truck owners had incurred all the expenses related to the transportation of the LPG and the appellant had made the payment to them not on the basis of individual trips of the trucks but for the entire deal work - The nature of transportation between the assessee and the three persons was self-explanatory as the assessee had himself submitted that the payments were made under an independent contract between him and the truck owners. The freight charges were being paid by the appellant to the three persons in respect of the sub-contract u/s 194C (2) following the assessee’s own contract with IOC, Baddi, it was evident that the assessee was trying to take undue benefit of the amendment brought about in Section 194C (1) w.e.f. 1.6.2007 by taking the plea that the transaction with the three truck owners was in the nature of a contract - the society does not retain any profits - It only retain as nominal amount as “parchi charges” which is used for meeting the administrative expenses of the society - the Society has an independent legal status and is also contractor within the meaning of Section 194C - the members have a separate status but there is no sub-contract between the society and the members - The society is nothing but a collective name for all the members and the contract entered by the society is for the benefit of the constituent members and there is no contract between the society and the members - The provisions of Section 40 (a) (ia) of the Act were applicable not only to the amount which were shown as outstanding on the closing of the relevant previous year, but to the entire expenditure which became liable for payment at any point of time during the year under consideration and which was also paid before the closing of the year – thus, no substantial question of law arises for consideration – Decided against assessee. Issues Involved:1. Applicability of Section 194C(2) of the Income Tax Act.2. Disallowance of freight expenses under Section 40(a)(ia) of the Income Tax Act.3. Interpretation of independent contract versus sub-contract.4. Applicability of Section 194C(1) versus Section 194C(2).5. Relevance of precedent cases in similar contexts.Detailed Analysis:1. Applicability of Section 194C(2) of the Income Tax Act:The main issue revolves around whether the payments made by the appellant to three individuals for transportation services fall under the purview of Section 194C(2), which pertains to sub-contracts requiring tax deduction at source (TDS). The Assessing Officer (AO) observed that the appellant had made a sub-contract with the three individuals, thereby making him liable to deduct TDS on the payments. This interpretation was upheld by the Commissioner of Income Tax (Appeals) [CIT] and the Income Tax Appellate Tribunal (ITAT).2. Disallowance of Freight Expenses under Section 40(a)(ia) of the Income Tax Act:The AO disallowed the freight expenses amounting to Rs. 20,97,689/- under Section 40(a)(ia) due to the appellant's failure to deduct TDS. This disallowance was contested by the appellant, who argued that the payments were made under an independent contract and not a sub-contract, thus falling outside the ambit of Section 194C(2).3. Interpretation of Independent Contract versus Sub-Contract:The appellant contended that the transportation services were procured through independent contracts with truck owners, and not sub-contracts. The AO and subsequent authorities found that the appellant had hired trucks from three individuals to fulfill his contract with the Indian Oil Corporation (IOC), Baddi, and thus, the payments were indeed sub-contracts. The authorities noted that the appellant did not provide any services such as drivers or fuel, which were managed by the truck owners.4. Applicability of Section 194C(1) versus Section 194C(2):The appellant argued that his case should be governed by Section 194C(1), which applies to direct contracts and does not impose TDS liability on individuals. However, the authorities concluded that since the appellant had a contract with IOC and hired trucks to fulfill this contract, the situation fell under Section 194C(2), which mandates TDS for sub-contracts.5. Relevance of Precedent Cases in Similar Contexts:The appellant cited the case of Commissioner of Income Tax vs. M/s Ambuja Darla Kashlog Mangu Transport Co-Op. Society, where Section 194C(2) was held not applicable to cooperative societies contracting with their members. The court distinguished this case, noting that the Ambuja Darla case involved a cooperative society formed by truck owners, whereas the present case involved individual contracts for transportation services. Thus, the precedent was deemed inapplicable.Conclusion:The court dismissed the appeal, affirming the findings of the AO, CIT, and ITAT. The court held that the appellant's payments to the three individuals were sub-contracts under Section 194C(2), necessitating TDS, and the disallowance of expenses under Section 40(a)(ia) was justified. The court also clarified that the provisions of Section 40(a)(ia) apply to both payable and paid amounts during the year. The appeal did not raise any substantial question of law, leading to its dismissal along with the pending application.