2016 (10) TMI 687 - AT - Income Tax

Revision u/s 263 - TDS liability u/s 194C - Held that - In the present case when the assessee is showing its modus operandi of business on two segments and making accounting entries accordingly then we are unable to see any reason to hold that the conclusion drawn by the AO or in accordance with the provisions of the Act or was unsustainable as per relevant provisions of the Act. In the present case since the assessee firm is not owning any trucks or vehicles of its own and merely working as transportation commission agent and it is running services without any oral or written agreement then the provisions of section 194C of the Act do not apply to the transactions undertaken by the assessee. So far as difference between commission earned from pucca and kaccha arhatia is concerned we are satisfied that for undertaking pucca arhatia services the assessee requires number of staff members and it has to undertake the risk of receiving and paying cash whereas in the kaccha arhatia working the assessee requires no staff members and the risk factor is very less and thus the difference in the percentage commission earned from two different activities is quite justified which cannot be taken as an allegation to the conclusion drawn by the AO that the order is erroneous and prejudicial to the interest of the Revenue. The present case cannot be held as a lack of enquiry. Therefore we are unable to agree with the conclusion drawn by the CIT Hissar that the order of the AO passed u/s 143(3) of the Act dated 19.10.2010 is erroneous and prejudicial to the interest of the Revenue which requires invocation of revisional powers u/s 263 of the Act. - Decided in favour of assessee

Summary

Issues Involved:
1. Assumption and application of revision jurisdiction under Section 263 of the Income-tax Act, 1961.
2. Interpretation of 'privity of contract' under the Indian Contract Act, 1872.
3. Invoking provisions of Section 40(a)(ia) read with Section 194C(3)(i) before amendment and Section 194C(6) effective from 1.4.2009.

Issue-wise Detailed Analysis:

1. Assumption and Application of Revision Jurisdiction under Section 263:
The appeal challenges the issuance of notice and invocation of revisional powers under Section 263 by the CIT. The CIT noticed discrepancies between the gross receipts shown in the Profit & Loss Account (PLA) and the TDS claimed by the assessee. The CIT alleged that the Assessing Officer (AO) failed to notice the issue, make necessary investigations, and make suitable additions regarding the difference of ?1,32,40,073/-. The assessee argued that the AO had conducted a detailed inquiry during the original assessment proceedings, including issuing a questionnaire and receiving detailed replies, verifying books of accounts, and considering the modus operandi of the assessee's business. The Tribunal concluded that the AO had made adequate inquiries and the assessment order was neither erroneous nor prejudicial to the interest of the Revenue.

2. Interpretation of 'Privity of Contract' under the Indian Contract Act, 1872:
The CIT interpreted the nature of the assessee's income differently, changing the nature of the income from freight receipts to commission receipts. The assessee contended that it acted as a "Pucca Arhatiya" and "Kachcha Arhatiya," receiving freight and commission respectively, and that the AO had properly examined this aspect during the original assessment. The Tribunal agreed with the assessee's explanation that the freight receipts and commission receipts were properly accounted for and verified by the AO, and thus, the AO's order could not be deemed erroneous or prejudicial to the Revenue.

3. Invoking Provisions of Section 40(a)(ia) read with Section 194C(3)(i) before Amendment and Section 194C(6) effective from 1.4.2009:
The assessee challenged the CIT's action of invoking the provisions of Section 40(a)(ia) read with Section 194C(3)(i) and Section 194C(6). The assessee argued that it was not liable to deduct TDS as it acted as a commission agent without any written agreement. The Tribunal noted that the AO had examined the assessee's claim, including the nature of transactions and the absence of any written agreement, and had accepted the assessee's explanation. The Tribunal concluded that the provisions of Section 194C were not applicable to the assessee's transactions, and the AO's order was justified and correct.

Conclusion:
The Tribunal held that the AO had conducted a proper inquiry and the assessment order was neither erroneous nor prejudicial to the interest of the Revenue. The CIT's invocation of revisional powers under Section 263 was deemed unjustified, and the impugned order was quashed. The appeal of the assessee was allowed.