2016 (3) TMI 1019 - AT - Income Tax

TDS u/s 194C(2) - non deduction of tds on payments made to transporters - whether no relationship of a contractor between the appellant and the small contractor exists? - CIT(A) held that non-existence of a formal contractual agreement vitiates the very existence of an oral contract - disallowance u/ section 40(a)(ia) - Held that - Since no amount of the freight was unpaid or was payable as on 31-03-2007 we hold that the provisions of section 40(a)(ia) are not attracted and in this view of the matter we are of the opinion that Revenue s appeal is liable to be dismissed. The assessee is a transport contractor. The assessee was awarded contract of transportation to various locations of Ambuja Cement, Manigarh Cement, Maratha Cement etc. The assessee received freight charges from these companies. The contract with these companies shows that the assessee was responsible for transportation of cement from one destination to other. The contractual liability was discharged by transporting cement through assessee s own trucks and also from hired trucks belonging to outside parties. It is clear from the facts on record that the risk and responsibility for carrying out the contract work was solely that of the assessee. There is no material to suggest that there was any contract or sub contract written or oral with the outside truck owners and the assessee. It is in these circumstances that when these outside truck owners do not have any responsibility or liability towards the Ambuja Cement or other principals then in absence of any privity the obligation to deduct the tax at source was not that of the assessee. Since we have already held that the provisions of section 40(a)(ia) were not attracted inasmuch as no amount was payable as on the close of the year as well as in absence of any contracts, there was no obligation on the part of the assessee to deduct the tax at source - Decided in favour of assessee

Summary

Issues Involved:
1. Deletion of addition made under Section 40(a)(ia) of the Income Tax Act.
2. Consideration of "oral contracts" in the context of Section 194C(2).
3. Determination of whether the relationship between the appellant and truck owners constitutes a subcontract.

Detailed Analysis:

1. Deletion of Addition under Section 40(a)(ia):
The Revenue's appeal challenges the deletion of an addition of Rs. 24,14,44,379 made under Section 40(a)(ia) due to non-deduction of TDS. The assessee argued that the entire freight expenditure was paid and nothing was payable as on 31-03-2007. The Tribunal noted that the Hon'ble Allahabad High Court in CIT vs. Vector Shipping Services (P) Ltd. (357 ITR 642) had upheld that Section 40(a)(ia) is not applicable if the amount is paid and not payable at the end of the year. The Supreme Court dismissed the Revenue's appeal against this decision, thus supporting the assessee's position. Consequently, the Tribunal held that Section 40(a)(ia) was not attracted since no amount was payable as on 31-03-2007, leading to the dismissal of the Revenue's appeal on this ground.

2. Consideration of "Oral Contracts" under Section 194C(2):
The Revenue contended that the CIT(A) erred by not considering the practice of "oral contracts" in the transport business, which should attract the provisions of Section 194C(2). The CIT(A) observed that the appellant did not enter into any formal contracts with truck owners for continuous transportation. Payments were made on a trip basis, and no evidence of a contractual relationship was provided. The Tribunal upheld this view, noting that there was no material to suggest any written or oral contract with truck owners that would impose similar liabilities as those borne by the appellant under its contracts with cement companies.

3. Relationship Between Appellant and Truck Owners:
The Revenue argued that the CIT(A) wrongly concluded that the relationship between the appellant and truck owners did not constitute a subcontract. The CIT(A) found that the appellant was solely responsible for the transportation contracts and bore all associated risks and responsibilities. The truck owners were hired on a trip basis without any contractual obligations similar to those of the appellant. The Tribunal agreed, citing the Bombay High Court's decision in Bhail Bulk Carriers, which held that payments to outside parties for hiring vehicles do not constitute subcontracts if the outside parties do not share the contractual risks and responsibilities. The Tribunal concluded that the payments made by the appellant for hiring trucks did not fall under the category of subcontracts, and thus, Section 194C(2) was not applicable.

Conclusion:
The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the addition under Section 40(a)(ia). The Tribunal found that the appellant was not liable to deduct TDS under Section 194C(2) as there were no contractual obligations with the truck owners that would constitute a subcontract. The decision was based on the absence of any material evidence of such contracts and supported by relevant judicial pronouncements.