2010 (7) TMI 800 - AT - Income Tax

Disallowance u/s 40(a)( ia) - contract for transportation of goods - TDS u/s 194C(3) - We are of the considered view that the learned CIT(A) ought to have considered the appeal s adjudication on the facts as enumerated by the AO. The very requesting forms were incorporated by the AO, 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. Therefore, the issue involved being legal is considered relying on the Apex Court s decision in the case of National Thermal Power Co. Ltd. v. CIT 1996 (12) TMI 7 - SUPREME COURT In the result, appeal of the assessee is allowed on the additional ground and the sum of Rs. 61,63,280 disallowed u/s 40(a)( ia) is directed to be deleted.

Summary

Issues Involved:
1. Non-furnishing of Form No. 15-I and Form 15J.
2. Applicability of Section 194C(2) and Section 40(a)(ia) of the Income-tax Act, 1961.
3. Determination of whether payments to truck owners constitute sub-contracts requiring TDS.

Issue-Wise Detailed Analysis:

1. Non-furnishing of Form No. 15-I and Form 15J:
The assessee argued that Form No. 15-I and Form 15J were duly furnished, but the Assessing Officer and CIT(A) did not acknowledge these forms. The CIT(A) considered the acknowledgment receipt for Form 15J as potentially fabricated, stating that the corresponding acknowledgment by the receiving authority was missing. The Tribunal found that the forms were indeed submitted, as evidenced by the acknowledgment receipt from the CIT (TDS) office dated 29-6-2006. The Tribunal held that the forms' submission should have settled the issue in favor of the assessee.

2. Applicability of Section 194C(2) and Section 40(a)(ia) of the Income-tax Act, 1961:
The Assessing Officer had disallowed Rs. 61,63,280 under Section 40(a)(ia) on the grounds that the assessee did not deduct TDS as required under Section 194C(2). The assessee contended that the payments to truck owners were not sub-contracts but merely hiring of vehicles, thus not requiring TDS. The Tribunal referenced decisions from other cases, such as Rakshit Transport and Mythri Transport Corpn., which clarified that hiring trucks does not constitute a sub-contract if the truck owners do not share the main contract's risks and responsibilities. The Tribunal concluded that Section 194C(2) was not applicable as there was no sub-contract between the assessee and the truck owners.

3. Determination of whether payments to truck owners constitute sub-contracts requiring TDS:
The Tribunal examined whether the payments made by the assessee to truck owners were under sub-contracts. It was determined that the truck owners only hired out their trucks and did not engage in the main contract's execution or bear any associated risks. Therefore, the payments did not fall under sub-contracts as defined by Section 194C(2). The Tribunal noted that prior to the amendment by the Finance Act, 2007, individuals were not required to deduct TDS under Section 194C(1) for such payments. Hence, the assessee was not liable to deduct TDS for the assessment year in question.

Conclusion:
The Tribunal allowed the assessee's appeal, directing the deletion of the disallowed sum of Rs. 61,63,280 under Section 40(a)(ia). The Tribunal found that the payments to truck owners did not constitute sub-contracts requiring TDS and that the relevant forms were duly submitted, thus settling the issue in favor of the assessee.