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TMI Blog2013 (12) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT (A) - the expenses are not fully vouched – Decided against Assessee. - ITA No.217/Rjt/2012 - - - Dated:- 12-4-2013 - T K Sharma and D K Srivastava, JJ. For the Appellant : Shri D R Adhia, AR For the Respondent : Shri Avinash Kumar, DR ORDER:- Per: D K Srivastava: The appeal filed by the assessee is directed against the order passed by the CIT (A)-I, Rajkot on 30.09.2011, on the following grounds:- 1.1 The Ld. CIT (A) has erred in law and facts in confirming addition of Rs.5,54,579/-. The same needs deletion. 1.2 The Ld. CIT (A) has erred in law and facts in confirming the gross receipts to the tune of Rs.5,54,579/- though not pertaining to the assessee. The same needs deletion. 1.3 The Ld. CIT(A) has erred in law and facts in not accepting the following the settled law and position that in transport business, the mediatory being working as agent earns only commission and has no concern whatsoever is gross receipts which pertains to the truck owner / driver. 1.4 Without prejudice, the CIT(A) has erred in law and facts in not granting expenses out of addition sustained by him. 1.5 Without prejudice, the CIT (A) has erred in law and facts in confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al amount to the driver after deducting TDS there from. Thus, the truck belongs to the driver who runs the same on contract, receive the contract money after deduction TDS. Since the truck driver receives the gross amount, it is his gross receipts and not mine. Since, however, being mediatory the TDS vouchers are being prepared in my name. However, only commission amount is due to us which I have shown in my return 3.2 The above explanation submitted by the assessee is not correct and also not found acceptable, as all the TDS certificates are in the name of the assessee and amount of tax deducted was deposited in favour of the assessee by the deductors. More ever, the assessee has not only claimed credit of such TDS amount, but also encased refund of Rs.1,49,000/- received from the Department. Now, the assessee has simply stated that being mandatory the TDS vouchers are being prepared in my name. In fact, the assessee has to shown truck freight receipts in the books of accounts before claiming credit for such TDS amount. Therefore, total truck freight charges of Rs.79,22,550/- are received during the year under consideration is treated unaccounted income of the assessee and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs.79,22,550/- and restricted the addition to Rs.5,54,579/- and deleted addition of Rs.73,67,971/-. This huge deletion appears to have been accepted by the department. 5. Since in the line of transport contract usually 5% are being accepted, the profit determined at 7% by the Ld. CIT(A) being excessive may kindly be reduced to 3% or at a suitable % as deemed feet to the most Hon. Bench. 6. The Ld. A.O. also made addition of Rs.2,500 at 40% of office expenses of Rs.6,250/- and Rs.3148/- at 40% of fuel expenses of Rs.7,870/- on the ground that vouchers for the gross expenditure were not produced. When the Ld. A.O. accepts claim at 60%, in the same situation the disallowance at 40% itself being bad in law and ought not have been made. The same may kindly be deleted. In either case suitable reduction as deemed fit may kindly be granted. 7. Second written submissions filed by the assessee on 19.03.2013 read as under:- 1. As mentioned in the written submissions submitted earlier it may further be stated that the assessee is a commission agent. The Ld. A.O. treated the entire amount of truck freight amounting to Rs.79,22,550/- as is income. The Ld. CIT(A) tightly conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the following observations:- 5. I have carefully considered the finding given by the Assessing Officer and the contentions of the AR of the appellant. I find that the A.O. has added entire truck freight income of Rs.79,22,550/-, which is not correct. Only profit portion has to be brought to tax after considering the facts and reasonably estimating the profit margin of the appellant. In the instant case, the fact remains that the appellant has acted only as a mediator between the consigner and the truck-owner/driver and the consideration is only commission and not freight. He does not have any vehicles of his own. Therefore, the appellant is only a commission agent. I also find that, on similar set of facts, the Hon ble ITAT, Rajkot Bench, in the case of Shri Khodiyar Transport for A.Y. 2005-06 in ITA No.31/RJT/2003, dated 24.12.2009, estimated the net income of the assessee at 7% of the gross receipts of Rs.1,27,68,775/- as against 8% estimated by the A.O., which was, in turn, confirmed by the Ld. CIT(A). In view of the facts and circumstances of the appellant s case and respectfully following the decision of the Hon ble ITAT, Rajkot Bench in the case of Shri Khodiyar Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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