TaxTMI 
TaxTMI 
2010 (7) TMI 800
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....r the provision of section 40(a)( ia) of the Income-tax Act, 1961. 2. The learned counsel for the assessee has submitted an additional ground which reads as under : "Without prejudice to grounds already taken, the learned Assessing Officer and CIT(A) failed to appreciate that payment to the truck owners by the appellant was not made under any sub-contract requiring deduction of tax at source under section 194C of the Income-tax Act, 1961 resulting in disallowance under section 40(a)( ia) of the Income-tax Act, 1961." 3. The learned counsel initiating the argument reiterated the brief facts which were pertinent to filing of the appeal as well as the additional ground raised before the Tribunal. 4. He submitted that the assessee is engaged in the business of transport business carrying commodities to various places belonging to business houses. It does not own any truck of its own and requisitions are made on daily basis from market of the available truck owners for transportation of goods to the various destinations. The assessee never passed its responsibility as a contractor to the truck owners who only acted in having delivered the goods at the instance of the assesse....
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....med. In view of the fact that the receiving authority in the office of the Assessing Officer should have also correspondingly acknowledged the same which did not appear on his verification of the Dak register etc. by him, held filing of Form 15J as non-genuine, learned CIT(A) adjudicated against the assessee as prime reason for upholding Assessing Officer's view which necessitates filing of this additional ground before the Tribunal. 6. He pointed out, as may be pursued, that it was not the Assessing Officer nor learned CIT(A)'s case that the truck owners who had been utilized for transportation of goods by the assessee had undertaken to bear all the consequences arising from the contract prima facie as there was no contract between the truck owners and the assessee so far as the hiring of trucks for transporting goods was for the assessee oh the basis of the business houses who had directly approached the assessee for transporting their goods. This clearly indicates that the-tax to be deducted at source and payment to truck owners were never a part of any sub-contract. He pointed out that his case is squarely covered on the facts that were considered by the Tribunal "A" Bench, ....
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....by the assessee. He, therefore, submitted that on the facts and circumstances of the assessee's case and on the basis of facts considered in the case of Rakshit Transport (supra), Kolkata referred to above, section 194C(2) is not applicable as there was no contract between the assessee and the individual truck owners, the invocation of provision of section 40(a)( ia) is to be decided on the scope and ambit of such enactment. In the case of the assessee also, Assessing Officer has simply observed that the very fact that the assessee is a transport contractor and is engaging other transporters for carrying out the transport work means that there is a sub-contract for transportation of goods which need not be a written contract. He prayed that the learned CIT(A), therefore erred in confirming the disallowance of Rs. 61,63,280 under the provisions of section 40(a)( ia) which may be directed to be deleted. 7. The learned Departmental Representative opposed the contention of the learned counsel in view of his seeking indulgence by the Bench to admit additional ground. He pointed out that in the paper book itself assessee had given the details of lorry freight paid during the year on t....
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....ave considered the appeal's adjudication on the facts as enumerated by the Assessing Officer. The very requesting forms were incorporated by the Assessing Officer, therefore', clinches the issue in favour of the assessee, the assessee was riot to be assessed as a sub-contractor. The truck owners in their' relevant certification on Form No. 15-I declared for non-deduction of tax at source for not owning more than two heavy goods carriage trucks during the financial year. Fortified with these forms, the assessee was able to furnish Form No. 15J under the third proviso to clause (i) of sub-section (3) of section 194C for the asst. yr. 2006-07. As per certificate from the office of CIT(TDS), Kolkata, dated 23-4-2009, acknowledging submission of Form 15J to his office on 29-6-2006 vide receipt No. 2139, this procedure would have settled the issue in his favour. In our considered view, however, the case of the assessee stands fully covered by the decision of Tribunal, "A" Bench, Kolkata in the case of Rakshit Transport (supra) for the asst. yr. 2005-06, as per copy available on record coupled with the identical issue considered by the Tribunal, Visakhapatnam Bench in the case of Mythri T....