M/s. Bikaner Golden Carriers,, v. The Income tax Officer, Ward-2,, Patan

ITA 2533/AHD/2008 | 2001-2002
Pronouncement Date: 29-01-2010 | Result: Allowed

Appeal Details

RSA Number 253320514 RSA 2008
Assessee PAN AABCM3246L
Bench Ahmedabad
Appeal Number ITA 2533/AHD/2008
Duration Of Justice 1 year(s) 6 month(s) 21 day(s)
Appellant M/s. Bikaner Golden Carriers,,
Respondent The Income tax Officer, Ward-2,, Patan
Appeal Type Income Tax Appeal
Pronouncement Date 29-01-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 29-01-2010
Date Of Final Hearing 28-01-2010
Next Hearing Date 28-01-2010
Assessment Year 2001-2002
Appeal Filed On 08-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI T.K. SHARMA JM & SHRI A.N. PAHUJA AM I.T.A. NO.2533 & 2534/AHD/2008 (ASSESSMENT YEARS : 2001-02 & 2002-03) M/S BIKANER GOLDEN CARRIERS VS ITO WARD -2 STATION ROAD UNJHA PATAN [PAN : AABCM3246L] (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DIVYAKANT PARIKH AR REVENUE BY : SHRI DS CHAUDHARY DR O R D E R AN PAHUJA : THESE APPEALS BY THE ASSESSEE AGAINST A COMMON ORD ER DATED 29- 05-2008 OF THE LD. CIT(A) GANDHINAGAR RAISE VARIO US GROUNDS RELATING TO ADDITION OF RS.17 41 600/- IN THE AY 2001-02 AND OF RS. 7 32 529 IN THE ASSESSMENT YEAR 2002-03 ON THE BASIS OF RECEIPTS AS PER TDS CERTIFICATES . 2. FACTS IN BRIEF AS PER RELEVANT ORDERS ARE THAT THE ASSESSEE A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PLYING OF TRUCKS ON COMMISSION BASIS FILED RETURN DECLARING INCOME OF RS.28 980/- FOR THE AY 2 001-02 ON 31-10-2001 AND INCOME OF RS.25 210/- FOR THE AY 2002-03 ON 24-03-2 003. AFTER PROCESSING U/S 143(1) OF THE INCOME-TAX ACT 1961[HEREINAFTER REFER RED TO AS THE ACT] THE ASSESSING OFFICER[AO IN SHORT] NOTICED THAT THOUGH THE ASSESSEE CLAIMED CREDIT FOR TDS OF RS. 36 954/- IN THE AY 2001-02 & RS.16 1 36/- IN THE AY 2002-03 THE ASSESSEE DID NOT REFLECT CONTRACT RECEIPTS TO THE T UNE OF RS.16 19 172/- IN THE AY 2001-02 AND RS.7 44 190/- IN THE AY 2002-03 AS PER THE TDS CERTIFICATES . ACCORDINGLY THE AO REOPENED THE ASSESSMENTS WITH T HE ISSUE OF NOTICE U/S 148 OF THE ACT. DURING THE COURSE OF REASSESSMENT PROCE EDINGS THE ASSESSEE EXPLAINED THAT THEY CARRY ON THE BUSINESS OF TRANSP ORT OF GOODS BY GIVING ON HIRE THEIR TRUCK NO.GKW 3806 BESIDES ARRANGING TRUCKS OF OTHER PARTIES ON COMMISSION BASIS WHEREIN THE FREIGHT PAID BY THE CO NSIGNEE IS DIRECTLY PAID TO THE OTHER PARTY WHOSE TRUCK IS HIRED FOR TRANSPORTING T HE GOODS OF THE CONSIGNOR AFTER ITA 2533 & 2534/AHD/2008 2 DEDUCTING THE AMOUNT OF COMMISSION AS MUTUALLY AGRE ED WITH THE TRUCK OWNERS. SINCE THEY WERE RECEIVING ONLY COMMISSION ON HIRE OF TRUCKS THE AMOUNT OF FREIGHT CHARGES EXCLUDING THE AMOUNT OF THEIR COMMI SSION BELONGS TO THE OTHER TRUCK OWNERS AND CONSEQUENTLY THE FREIGHT CHARGES WERE NOT REFLECTED IN THEIR PROFIT & LOSS ACCOUNT. HOWEVER THE AO DID NOT ACC EPT THESE SUBMISSIONS OF THE ASSESSEE AND ADDED THE AFORESAID AMOUNT OF RS.16 0 4 606[16 19 172- 14566(TDS)] IN THE AY 2001-02 & RS 7 32 529 IN TH E AY 2002-03 WHILE RELYING UPON HIS OWN ORDER FOR THE AY 2000-01 ON THE GROUND THAT THE ASSESSEE HAS NOT BEEN ABLE TO SUBSTANTIATE ITS CLAIM WITH SUPPORTING EVIDENCE SUCH AS COPIES OF AGREEMENTS WITH THE TRUCK OWNERS FOR HIRE CHARGES COPIES OF MOU ETC WHILE THE ASSESSEE CLAIMED CREDIT FOR TDS DEDUCTED FROM THE AFORESAID RECEIPTS IN ITS RETURN OF INCOME. BESIDES THE AO ADDED ESTIMATED A MOUNT ON ACCOUNT ON COMMISSION IN THESE TWO ASSESSMENT YEARS. 3. ON APPEAL THE LEARNED CIT(A) CONFIRMED THE A DDITIONS OF RECEIPTS AS PER TDS CERTIFICATES WHILE DELETING ESTIMATED ADDITION ON ACCOUNT OF COMMISSION. INTER ALIA THE LD. CIT(A) OBSERVED THAT NOT ONLY T HAT THE TDS CERTIFICATES ARE IN THE NAME OF THE ASSESSEE THE PARTIES CONCERNED ISSUED CHEQUES IN THE NAMES OF THE ASSESSEE ONLY AND THEREFORE THE ASSERTION OF THE ASSESSEE THAT MONIES WERE PAID BACK TO TRUCK DRIVERS AT THE CONSIGNEE END IS FOUND TO BE INCORRECT. IT WAS FURTHER OBSERVED THAT THOUGH THE ASSESSEE STATED TH AT TDS WAS CREDITED IN THE NAME OF TRUCK OWNERS WHEN THE MONEY PASSED ON TO T RUCK OWNERS HAS NOT BEEN EXPLAINED AT ALL. SINCE THE ASSESSEE WAS PROVIDING TRANSPORT SERVICES ON PRINCIPAL TO PRINCIPAL BASIS IT WAS FOR THE ASSESS EE TO EXPLAIN HOW THE RECEIPTS FROM CONSIGNEES THROUGH CHEQUES WERE ACCOUNTED FOR .THE ASSESSEE HAVING FAILED TO RECONCILE THE RECEIPTS AS PER TDS CERTIFI CATES VIS--VIS REFLECTED IN THE BOOKS THE LD. CIT(A) UPHELD THE ADDITION WHILE DIF FERING FROM THE ORDERS OF HIS PREDECESSORS FOR THE AY. 2000-01. 4. THE ASSESSEE IS NOW IN APPEAL BEFORE U S AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A) IN THESE TWO ASSESSMENT YEARS. AT THE OUTSET THE LD. AR ON ITA 2533 & 2534/AHD/2008 3 BEHALF OF THE ASSESSEE WHILE CARRYING US THROUGH TH E PAPER BOOK SUBMITTED THAT THE ASSESSEE WAS MERELY IN RECEIPT OF COMMISSION IN COME APART FROM HIRE CHARGES OF HIS OWN TRUCK IN THE AY 2002-03. THERE WERE NO HIRE CHARGES IN THE AY 2001-02 THE TRUCK HAVING NOT BEEN USED. WHILE DISPUTING THE OBSERVATIONS OF THE LD. CIT(A) IT WAS POINTED OUT THAT NO CHEQUES HAVE BEEN RECEIVED IN THE NAME OF THE ASSESSEE NOR SUCH CHEQUES ARE ACCOUNTED FOR IN THEIR BOOKS. TO A QUERY BY THE BENCH THE LD. AR ON BEHALF OF THE ASS ESSEE CONCEDED THAT CREDIT FOR TDS HAD WRONGLY BEEN CLAIMED BY THEM AND THE ASSES SEE HAS NO OBJECTION IF IT IS WITHDRAWN. WHILE REFERRING TO A DECISION DATED 2 5.9.2009 OF THE ITAT IN THE ASSESSEES OWN CASE IN THE AY2000-01 IN ITA NOS. 11 71& 2119/AHD./2004 THE LD. AR ARGUED THAT NO ADDITION CAN BE MADE IN THE YEARS UNDER CONSIDERATION ON THE BASIS OF FINDINGS OF THE LD. CIT(A) UPHELD BY T HE ITAT IN THE SAID DECISION FOR THE AY 2000-01. THE LD. AR ADDED THAT ADDITION OF R S. 2 LACS WAS SUSTAINED IN THE AY 2000-01 INTER ALIA ON THE GROUND THAT TRUC K OWNERS MAY NOT HAVE DECLARED THE INCOME. ON THE OTHER HAND THE LD. DR SUPPORTED THE FINDINGS OF THE LD. CIT(A) IN PARA 3.3 OF THE IMPUGNED ORDER. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. WE FIND THAT THE LD. CIT(A) IN THE IMPUGNED ORDER D ID NOT FOLLOW THE ORDER OF HIS PREDECESSOR IN THE AY 2000-01 WHICH HAS BEEN UPHE LD BY THE ITAT IN THE FOLLOWING TERMS : 6. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND HAVE ALSO PERUSED THE MATERIALS AVAILAB LE ON RECORD. IN THE INSTANT CASE THE AO HAS ATTEMPTED TO TAX THE G ROSS RECEIPTS WITHOUT CONSIDERING THE PROBABLE AND REASONABLE EXP ENSES. THE AO HAS NOT APPRECIATED THIS FACT THAT THE ASSESSEE OWNED ONLY ONE TRUCK. IN OUR VIEW THE AO WAS NOT JUSTIFIED IN ES TIMATING THE INCOME OF THE ASSESSEE WITH REFERENCE TO TRUCKS WHICH WAS NOT OWNED BY THE ASSESSEE. THE AO HAS NOT APPRECIATED THIS FACT THAT THE RECEIPTS INDICATED IN THE TDS CERTIFICATE WERE IN F ACT GROSS RECEIPTS AND THAT THERE WAS MATERIAL ON RECORD WHICH INDICAT ED THAT A SUBSTANTIAL PORTION OF GROSS RECEIPTS WAS PERTAININ G TO TRUCKS WHICH WERE NOT OWNED BY THE ASSESSEE AND THAT RELEVANT DI RECT EXPENSES WERE NOT CLAIMED BY THE ASSESSEE WITH REFERENCE TO SUCH TRUCKS. ITA 2533 & 2534/AHD/2008 4 HOWEVER IT IS A FACT THAT THE ASSESSEE WAS NOT MAI NTAINING ANY RECORD OF OUTGOING TO THESE OTHER TRUCKS BECAUSE TH E PAYMENTS WITH REFERENCE TO THESE TRUCKS WERE BEING COLLECTED BY T HE DRIVERS FROM OTHER PARTIES AT THE TIME OF DELIVERY OF GOODS. SI NCE THE TRUCKS WERE BEING ASSIGNED BY THE ASSESSEE THE TDS CERTIFICATE WAS ISSUED IN THE NAME OF THE ASSESSEE ONLY. WE AGREE WITH THE O BSERVATIONS OF THE CIT(A) THAT TRUCK OWNERS OF THESE OTHER TRUCKS WERE NOT BROUGHT TO BOOK FOR THE PURPOSE OF TAXATION. THE ASSESSEE WAS ALSO NOT HAVING FULL IDENTIFICATION OF SUCH PAYEES. NO PROO F OF PAYMENT IS AVAILABLE WITH THE ASSESSEE. THUS CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE WE ARE IN AGREEMENT WITH THE OBSE RVATIONS OF THE CIT(A) THAT OUT OF THE ADDITION OF GROSS RECEIPTS M ADE BY THE AO ONLY THE INCOME ELEMENT OF RS.2 00 000/- WHICH WAS ESCAPING INCOME TAX ON ACCOUNT OF DEFAULT OF THE ASSESSEE IS NOT IDENTIFYING THE OWNERS OF OTHER TRUCKS WAS SUSTAINABLE. IN OUR CONSIDERED VIEW THE CIT(A) HAS PASSED A WELL REASONED ORDER A FTER APPRECIATING THE FACTS OF THE PRESENT CASE AND THE EVIDENCES BROUGHT ON RECORD. WE ALSO OBSERVE THAT THE ADDITI ON OF RS.2 00 000/- SUSTAINED BY THE CIT(A) IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE IS QUITE REASONAB LE AND HENCE NO INTERFERENCE IN THE ORDER OF THE CIT(A) IS REQUI RED. ACCORDINGLY WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS BOTH THE APPEALS. 5.1 IN THE YEARS UNDER CONSIDERATION APART FROM THE FACT THAT THE LD. CIT(A) DID NOT FOLLOW DECISION OF HIS PREDECESSOR FOR THE AY 2 000-01 HE UPHELD THE FINDINGS OF THE AO TAXING THE GROSS RECEIPTS EVEN WHEN THE EXPENSES ON ACCOUNT OF HIRED TRUCKS WERE NEVER DEBITED BY THE ASSESSEE IN THEIR BOOKS AND ON THE PREMISE THAT THAT THE CONCERNED PARTIES HAD ISSUED CHEQUES IN THE NAME OF THE ASSESSEE ONLY WHICH THE LD. AR REFUTED STRONGLY. I NSTEAD THE LD. AR SUBMITTED THAT THE TRUCK OWNERS/DRIVERS HAD COLLECTED THE AM OUNTS DIRECTLY FROM THE CONSIGNEES AND THE ASSESSEE RECEIVED ONLY THEIR COM MISSION. SINCE THE FACTS IN THE INSTANT CASE ARE DISPUTED AND NOWHERE SEEM TO BE PARALLEL TO THE FACTS FOUND BY THE LD. CIT(A) IN THE AY2000-01 AND THE LD . CIT(A) IN THE YEARS UNDER CONSIDERATION HAVING PROCEEDED ON THE BASIS THAT CHEQUES HAD BEEN RECEIVED IN THE NAME OF THE ASSESSEE ONLY WHILE THE LD. AR STRO NGLY REPELLED THIS ASSERTION AND NEITHER THE LD. DR NOR THE LD. AR PLACED ANY M ATERIAL BEFORE US IN ORDER TO ASCERTAIN AS TO WHO WERE THE RECIPIENTS OF CHEQUES FROM THE CONSIGNEES AND IN WHOSE BOOKS THESE ARE ACCOUNTED FOR IN THESE CIRCU MSTANCES WE CONSIDER IT FAIR ITA 2533 & 2534/AHD/2008 5 AND APPROPRIATE TO VACATE THE FINDINGS OF THE LD. C IT(A) AND RESTORE THE MATTER TO HIS FILE WITH THE DIRECTIONS TO RE-ADJUDCATE THE MATTER AFTER ASCERTAINING CORRECT FACTS AS TO IN WHOSE HANDS INCOME ATTRIBUTED TO H IRED TRUCKS HAD ACCRUED AND HAD BEEN ACCOUNTED FOR AND WHO WERE THE RECIPIENTS OF CHEQUES MENTIONED BY THE LD. CIT(A) KEEPING IN MIND OUR AFORESAID OBSE RVATIONS AND THEREAFTER PASS ORDERS IN ACCORDANCE WITH LAW AFTER ALLOWING SUFFIC IENT OPPORTUNITY TO BOTH THE PARTIES. THE ASSESSEE IS ALSO DIRECTED TO PLACE BEF ORE THE LD. CIT(A) ALL THE RELEVANT MATERIAL IN SUPPORT OF THEIR CLAIM WHILE THE LD. CIT(A) IS FREE TO UNDERTAKE ANY INDEPENDENT ENQUIRIES NECESSARY TO AS CERTAIN THE GENUINENESS OF THE SAID CLAIM. WITH THESE DIRECTIONS GROUND NO. 1 TO 4 IN THE APPEAL ARE DISPOSED OF. NEEDLESS TO SAY THAT CREDIT FOR TDS MAY BE ALLO WED IN ACCORDANCE WITH THE PROVISIONS OF SEC. 199 OF THE ACT. . 6. GROUND NO. 5 BEING GENERAL IN NATURE DOES NO T REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND HAVING BEEN RAISED IN TERMS OF THE RESIDUARY GROUND NO. 6 IN THESE APPEALS THESE GROU NDS ARE DISMISSED. 7. IN THE RESULT BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29THJANUAR Y 2010. SD/- SD/- (T.K. SHARMA) (A.N. PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED :29 TH JANUARY 2010 PK/- COPY TO: 1. THE ASSESSEE 2. ITO WARD -2 PATAN 3. CIT(A) GANDHINAGAR 4. CIT CONCERNED. 5. DR C BENCH BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD