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TMI Blog2013 (10) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the appellant from the transporters and on the strength of those Forms he did not deduct the tax. This was not even the case of the assessee in reply to the show-cause notice. Under sub-rule 2, the Commissioner of Income-tax (Appeals) is required to record in writing the reasons for admission of the additional evidence. The Commissioner of Income-tax (Appeals) did not do so – Decided in favor of Revenue. - ITAT No. 4 of 2013 - - - Dated:- 25-3-2013 - GIRISH CHANDRA GUPTA AND TARUN KUMAR DAS, JJ. Mr. S.B. Saraf, Advocate for the Appellant Mr. R. Bharadwaj, Advocate for the Respondent Girish Chandra Gupta, J.- The Assessing Officer by his order dated December 28, 2010, disallowed the transportation payments of more than Rs. 50,000 for the assessment year 2006-07 aggregating to a sum of Rs. 86,04,049 on the ground that the aforesaid payments were made to the sub-contractors without deducting tax. Consequently, the aforesaid sum of Rs. 86,04,049 was disallowed under section 40(a)(ia) of the Income-tax Act, 1961, and added to the total income. Similarly, a sum of Rs. 96,01,585 was disallowed for the same reason for the assessment year 2008-09. Both the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority and the Tribunal. He also relied on an unreported judgment of the Division Bench of the Gujarat High Court dated October 1, 2012, in CIT v. Valibhai Khanbhai Mankad since reported in [2013] 1 ITR-OL 405 (Guj) wherein the following views were taken (page 410 of 1 ITR-OL) : " (9) In our view, therefore, once the conditions of further proviso to section 194C(3) are satisfied, the liability of the payee to deduct tax at source would cease. The requirement of such payee to furnish details to the income-tax authority in the prescribed form within the prescribed time would arise later and any infraction in such a requirement would not make the requirement of deduction at source applicable under sub-section (2) of section 194C of the Act. In our view, therefore, the Tribunal was perfectly justified in taking the view in the impugned judgment. It may be that failure to comply such requirement by the payee may result into some other adverse consequences if so provided under the Act. However, fulfilment of such requirement cannot be linked to the declaration of tax at source. Any such failure, therefore, cannot be visualized by adverse consequences provided under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requisite Forms Nos. 15I and 15J, as indicated above. Mr. Saraf in this regard drew our attention to the following comments made by the Assessing Officer in his remand report, which was filed pursuant to an order of the Commissioner of Income-tax (Appeals) when the assessee wanted to adduce additional evidence : "In spite of sufficient opportunities, the assessee-company could not submit the same at the time of assessment proceedings. Moreover, the learned authorised representative did not raise any voice that Form No. 15J along with Form 15J was not available. On the other hand, the learned authorised representative, vide letter dated October 29, 2010, replied that as no payment exceeding Rs. 50,000 was given to a vehicle, the provisions of section 40(a)(ia) will not be applicable. At the time of assessment proceedings for the assessment year 2007-08, the director of the company submitted, vide letter that the company did not deduct any tax at the time of payment to transporters. Next time, the authorised representative of the assessee submitted that Form No. 15J were not available due to shifting of the office. The assessee submitted Form No. 15J without For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax-III, Kolkata, the same could not be taken cognizance of. It is true that Form No. 15J is required to be filed with the jurisdictional Commissioner of Incometax, and the appellant has not claimed that such form was filed in the office of Commissioner of Income-tax-III, Kolkata, but that does not believe the fact that Form No. 15-I were received by the appellant from the transporters and on the strength of those Forms he did not deduct tax at source from payments made to them. In the instant case, there is evidence to show that the appellant had submitted Form 15J with the Department on June 5, 2008. Otherwise also, the fact that the appellant produced copy of Form 15J before me proves that the appellant had received form 15-I from the transporters to whom transport charges were paid, therefore, the appellant had rightly not deducted tax at source from those payments. Perusal of the annexures to Form 15J show that Form 15-I were received from all the transport whose names are mentioned in the assessment order. In the light of the above discussions and following the decision of the Income-tax Appellate Tribunal, Ahmedabad, in the case of Deputy CIT v. Niten Hasmukhbhai Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to section 194C read with section 40(a)(ia). Rule 46A provides for production of additional evidence before the appellate authority. Sub-rules (1) and (2) of rule 46A provide as follows : "46A. (1) The appellant shall not be entitled to produce before the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer, except in the following circumstances, namely :- (a) where the Assessing Officer has refused to admit evidence which ought to have been admitted ; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer ; or (c) where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal ; or (d) where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule ..... 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