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TMI Blog2024 (4) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... or discussions as the issues involved in the lead case are common and inextricably interlinked or in fact interwoven and the facts and circumstances of other cases are identical except the difference in the amount in dispute other cases. The ld. DR did not raise any specific objection against taking that case as a lead case. Therefore, for the purpose of the present discussions, the case of ITA No. 177/Jodh/2023 is taken as a lead case. Based on the above arguments we have also seen that for these appeals grounds are similar, facts are similar, and arguments were similar and therefore, were heard together and are disposed by taking lead case facts, grounds, and arguments from the folder in ITA No. 177/Jodh/2023. 4. Before moving towards the facts of the case we would like to mention that the assessee has assailed the appeal in ITA No. 177/Jodh/2023 on the following grounds; "1. The learned ITO (TDS), Bikaner was wrong in computing and levying amount of TDS u/s 201(1) and interest u/s 201 (1A) at Rs. 1,16,094/-." 5. Succinctly, the fact as culled out from the records is that the assessee deductor is engaged in the business of transportation & logistic services. A survey u/s 133A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s valid documents in light of the provisions of section 194C(6) of the I. T. Act, 1961. Thus, the assessee has not fulfilled the basic condition laid down under section 194C(6) of the Act. In view of the above discussion, as the assessee deductor has not complied with the provisions of section 194C(6) of the IT. Act, 1961, therefore, it is held that the assessee deductor is an assessee in default u/s 201(1) of the Act, 1961 and also liable to pay interest u/s 201(1A) of the IT. Act, 1961 and on that aspect of the matter a demand for an amount of Rs. 1,16,094/- for the F.Y 2015-16 relevant to A.Y 2016-17 was raised against the assessee. 6. Aggrieved from the order of Assessing Officer, creating demand of TDS along with interest for an amount of Rs. 1,16,094/-, the assessee preferred an appeal before the ld. NFAC. Apropos to the grounds so raised the relevant finding of the ld. NFAC is reiterated here in below: "3. Decision 3.1 During the course of appellate proceedings, notices u/s. 250 of the 1. T. Act were issued and served on the appellant through ITBA on 31.03.2021, 09.07.2021, 15.03.2022, 08.04.2022, 25.04.2022 and 18.10.2022. In the meanwhile, the NFAC had also enabled &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring and leasing good carriage and such contractor owns less than 10 goods carriage at any time during the year. It was further submitted by the appellant that the payment was made to the power of attorney holders on behalf of truck owners. The transactions are genuine and have been made through cheque. No contravention has been made u/s 40A(3) of I.T. Act, 1961. The use of PAN is to check the payment to the bogus persons. When payment is genuine and the owners of truck are traceable, having registration no and all details in the declaration. The only basis for producing PAN of power of attorney holders have no basis for violation of provisions of section 194C(6) of the I.T. Act, 1961. In this circumstances mentioned above the appellant should not be deemed to be default in respect to the deduction of tax and order should not be passed us 201(1) and 201(1) of the Act. 3.7 The appellant further submitted that section 139 of the Act clearly narrate the conditions for obtaining PAN. Several truck owners are not coming in the purview of aforesaid section. When a person is not liable for obtaining PAN u/s 139 of the I.T. Act, 1961, how can quote PAN. It means the section 194C(6) is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.10 It is held by the Hon'ble Supreme Court in the case of Shri Choudhary Transport Company vs. ITO (2020) 118 taxmann.com 47 (SC) that "where assessee had entered into a contract with a cement company to transport cement and for that assessee hired service of truck owners as subcontractors, assessee would be liable to deduct tax at source under section 194C from payments made to truck owners". Since the facts of instant case are identical, this decision of Hon'ble Supreme Court squarely applies to it. 3.11 In view of the above facts of the case and in law, I am of the considered view that the order passed by the A.O. treating the appellant in default within the meaning of provision u/s. 201(1) / 201 * (1A) of the I. T. Act is in accordance with law. The impugned order passed by the A.O. u/s. 201(1) / 201 * (1A) of the I. T. Act dated 26.02.2019 is therefore upheld. 4. In the result, the appeal of the appellant is dismissed." 7. As the assessee did not find any favour from the order of the ld. CIT(A), the assessee preferred the present appeal on the ground as reproduced hereinabove. The ld. AR of the assessee heavily relied upon the written submissions filed before ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings u/s 201(1) and 201(1A) may kindly be dropped." 8. Per contra, the ld. DR relied upon the orders of lower authorities and particularly he has emphasized on the facet of the matter that the vehicle owners are not having PAN and person who filed declaration are not owner of the vehicle. Therefore, the assessee is liable to make TDS and on account of such default demand has rightly been confirmed in the case of the assessee. 9. We have heard the rival contentions and perused the material placed on record. The bench noted that it is not under dispute that the assessee has furnished the declaration of the payee. But the ld. AO was of the view from the declaration so submitted by the assessee that the assessee has made the payment of Rs. 82,33,615/- to the persons who were not the owner of the vehicle. Thus, the apple of discord before us that whether the term "owns" be taken essentially to mean registered owner under Motor Vehicles (MV) Act or should it be read to mean the beneficial owner? 9.1 Since the only dispute that is made by the ld. AO and confirmed by the ld CIT(A) that the assessee has made the payment based on the declaration but the person who filed the declaration w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing goods carriage. The presumptive taxation is based on the number of goods carriage owned by the assessee. The term 'owner' has been defined in explanation to the section as under: "an assessee, who is in possession of a goods carriage, whether taken on hire purchase or on instalments and for which the whole or part of the amount payable is still due, shall be deemed to be the owner of such goods carriage" 9.3 Thus, for the purpose of section 44AE, the term owner means anyone in possession of the goods carriage and not the registered owner. This assumes importance in defining the term "owns" in section 194C(6) because, the taxation of the assessee transporter is squarely covered under the provisions of section 44AE. In addition we also take support of our view from the various judicial precedent on the issue and the apex court of the country has decide the question of ownership based on the intention of the legislature, namely "to give benefit or to tax the assessee." This view which we have taken strengthen the support this view are as under : (1) Owner for the purpose of depreciation benefit The word ownership fell for the consideration of the Supreme Court in Mysore Min ..... X X X X Extracts X X X X X X X X Extracts X X X X
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