2012 (11) TMI 319 - AT - Income Tax

Carting expenses - Non deduction of TDS - Addition u/s 40(a) (ia) - Held that - As decided in CIT Vs Poompuhar Shipping Corporation Ltd. 2006 (1) TMI 60 - MADRAS HIGH COURT that the payment of hire charges for taking temporary possession of the ships by the assessee-company would not fall within the provision of section 194C and hence no tax was required to be deducted.The hiring of ships for the purpose of using them in the assessee s business did not amount to a contract for carrying out any work as contemplated in section 194C The assessee in the present case was hiring trucks for the purpose of his business of providing transportation services to his client M/s. HPCL. Section 194 C makes it clear that TDS is deductible only in the case when the recipient contractors renders the work of carriage of goods or passengers by any mode of transport other than railways. In this case it is evident that the assessee had only hired out the vehicles and rendered the services of transportation of goods i.e. LPG cylinders by itself at its own risk and reward. The contract executed between the appellant and M/s. HPCL contained specifically provides that the appellant shall not sub-let any work entrusted to him & the appellant is assigned the job of transportation and it had performed the job of transportation by itself - The Revenue has not brought out any material to establish that the owner of the vehicles have performed any work other than hiring their vehicles to the appellant - in favour of assessee.

Issues Involved:
1. Confirmation of income assessment by the CIT(A) at a higher amount than the returned income.
2. Confirmation of addition made by the AO under Section 40(a)(ia) of the Income Tax Act, 1961.
3. Applicability of Section 194C for tax deduction at source (TDS) on payments made for transportation services.
4. Characterization of the assessee as a transport commission agent versus a transport contractor.
5. Determination of whether the assessee sub-let the transportation work or performed it independently.

Issue-wise Detailed Analysis:

1. Confirmation of Income Assessment:
The Commissioner of Income Tax (Appeals), Valsad, confirmed the order of the Assessing Officer (AO), assessing the income of the appellant at Rs.1,09,03,430/- for the assessment year 2005-06, against the returned income of Rs.3,08,610/-. The same issue was identified for the assessment year 2006-07, with the income assessed at Rs.1,50,77,604/-.

2. Addition Under Section 40(a)(ia):
The AO made an addition of Rs.1,05,83,555/- under Section 40(a)(ia) for the assessment year 2005-06, due to non-deduction of tax at source on carting expenses. The CIT(A) upheld this addition, stating that the appellant violated the provisions of Section 194C by not deducting TDS on payments made to transport operators. For the assessment year 2006-07, a similar addition of Rs.1,50,77,604/- was made and confirmed by the CIT(A).

3. Applicability of Section 194C:
The appellant contended that Section 194C was not applicable as it did not sub-let the transportation work but hired trucks to perform the transportation itself. The Tribunal referred to the Madras High Court decision in CIT Vs Poompuhar Shipping Corporation Ltd., which held that hiring vehicles for conducting one's business does not amount to a contract for carrying out any work under Section 194C.

4. Characterization as Transport Commission Agent vs. Transport Contractor:
The appellant argued that it acted as a transport commission agent, not a transport contractor, since it did not own trucks but hired them from third parties. The Tribunal found that the appellant performed the transportation work independently, without sub-letting, and bore the operational costs and risks associated with the transportation.

5. Sub-letting of Transportation Work:
The Tribunal examined the contract between the appellant and HPCL, which specified that the appellant could not sub-let the transportation work. The appellant was responsible for providing vehicles, ensuring compliance with legal formalities, bearing operational costs, and ensuring the safe delivery of goods. The Tribunal concluded that the appellant did not sub-let the work but performed it independently.

Conclusion:
The Tribunal allowed the appeals for both assessment years, deleting the additions made under Section 40(a)(ia). It was established that the appellant hired vehicles for its transportation business and did not sub-let the work, making Section 194C inapplicable. The Tribunal's decision was based on the interpretation of the contract and relevant judicial precedents, confirming that the appellant performed the transportation work independently.

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