2013 (12) TMI 137 - AT - Income Tax

Freight payment Tax at source not deducted - Held that - The risk assumed by assessee cannot be said to have been transferred to lorry owner and if there is no transfer of risk the lorry owner cannot be said to have executed any part of contract - As per the provisions of section 194C the sub contractor is a person who carries out the whole or any part of the work undertaken by the assessee - Lorry owner was not involved in carrying out any part of the contract undertaken by the assessee spending time money and energy etc. by taking the risks associated with main contract work - In the absence of above said characteristic attached with sub contract the payment made to lorry owner stands at par with payments made towards salary rent etc. - The payments made for hired vehicle was a sub contract payment is not correct and not based on relevant facts and circumstances The assessee was not liable to deduct tax at source as per the provisions of section 194C of the Act - Decided in favour of assessee.

Summary

Issues involved:
1. Disallowance of amount under section 40a(ia) for non-deduction of tax at source
2. Disallowance of shortage of diesel and turbo
3. Levy of interest under section 234B & 234C

Issue 1: Disallowance of amount under section 40a(ia) for non-deduction of tax at source:
The appellant, running a petrol pump, filed an appeal against the disallowance of Rs.30,41,670 under section 40a(ia) for not deducting TDS on freight payments to M/s Sujan Singh HUF. The Assessing Officer disallowed the amount despite the appellant's argument that he acted as an intermediary and had reimbursed the amount after deducting 2.5%. The CIT(A) upheld the disallowance, stating that the tank owner was a sub-contractor as per the agreement terms, making section 194C applicable. The CIT(A) rejected the appellant's contentions and upheld the disallowance, emphasizing the transfer of liabilities to the tank owners. However, the Tribunal allowed the appeal, stating that the lorry owner did not carry out any part of the contract undertaken by the appellant, and the risk was not transferred, hence not liable for TDS deduction.

Issue 2: Disallowance of shortage of diesel and turbo:
The Assessing Officer disallowed Rs.85,056 for excess shortage of diesel and turbo claimed by the appellant, stating that only shortages up to company norms were allowable. The CIT(A upheld the disallowance, noting the absence of documentary evidence supporting the excess claim. The Tribunal affirmed the disallowance, stating the appellant failed to justify the higher shortage claim compared to HPCL norms. The appellant's argument of depending on employees and incidental business shortages was dismissed, and the excess shortage disallowance was upheld.

Issue 3: Levy of interest under section 234B & 234C:
The Tribunal considered the interest levied under sections 234B & 234C as consequential, not requiring adjudication, and dismissed the same. The Tribunal partially allowed the appeal, allowing grounds 1 to 5 related to the disallowance under section 40a(ia) but dismissed grounds 6 and 6.1 as not pressed. Ground 7 concerning interest charges was deemed consequential and did not require further consideration. The appeal was partly allowed based on the findings related to the disallowance issues.

This comprehensive analysis outlines the key arguments, decisions, and reasoning behind the judgment, addressing the issues of disallowance under section 40a(ia), shortage of diesel and turbo, and the levy of interest under sections 234B & 234C.