Commissioner Of Income Tax vs. Shri Satendra Singh Kushwah

1 ITA No.01/2017 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR DB: SHEEL NAGU & S.A. DHARMADHIKARI, JJ ITA No.01/2017 Commissioner of Income Tax, City Centre, Gwalior Vs. Satyendra Singh Kushwah Whether reportable :- Yes /No ___________________________________________________________ For Appellant : Shri D.P.S. Bhadauria, Advocate. J U D G M E N T (Delivered on this Day of 8th May, 2017) Per Justice S.A. Dharmadhikari Heard on the question of admission. 2. This appeal is preferred by the appellant under section 260-A of Income Tax Act, 1961 (for brevity 'Act') against the order dated 08/08/2016 passed in I.T.A. No. 367/Agra/2013, whereby, Income Tax Appellate Tribunal, Bench Agra (for brevity 'ITAT') has reversed the findings of the Assessing Officer and the Commissioner of Income Tax (Appeals), Gwalior in the matter of addition of Rs. 80, 70, 861/- qua Assessment Year 2010-11. 3. The assessee is engaged in the business of material transportation services on the basis of sub-contract with M/s. O & M Rosa Power Supply Company Limited for the purpose of transportation of material from one destination to another. 2 ITA No.01/2017 4. The assessee has filed income tax return for the assessment year 2011-12 and declared total income as Rs. 21,81,760/-. During assessment, the Assessing Officer made assessment of an amount of Rs. 80,70,861/- on various heads and assessed the total income of assessee at Rs. 1,02,52,620/-. 5. The Assessing officer made the aforesaid additions on following grounds:- i) Addition of Rs. 39,53,500/- on account of demurrage and warfage expenses; ii) Addition of Rs. 22,58,103/- on account of shortage of deduction; iii) Addition of Rs. 5,08,706/- on account of unloading charges; iv) Addition of Rs. 1,24,911/- on account of vehicle, maintenance expenses i.e. depreciation of vehicles; and v) Addition of Rs. 10,53,717/- on account of disallowance under section 40(a) (ia) of the Act as TDS was not deducted by the assessee under section 194 (I) of the Act. 6. Being aggrieved by the order of assessment, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals), Gwalior. The order of assessment was confirmed by the Commissioner of Income Tax (Appeals), Gwalior vide order dated 09/10/2013. 7. Being aggrieved, the assessee filed an appeal against the order dated 09/10/2013 passed by Commissioner of 3 ITA No.01/2017 Income Tax (Appeals), Gwalior before the ITAT and the ITAT allowed the appeal by deleting the additions made by Assessing Officer vide impugned order dated 08/08/2016, hence, this appeal has been preferred before this Court. 8. Learned ITAT in the order impugned has dealt with the aforesaid issues exhaustively from para 6 onwards and has recorded separate reasons for deleting the additions made by Assessing Officer. 9. It is the case of the appellant that ITAT has failed to consider discrepancies noted by the Assessing Officer from the return of the assessee i.e. issue with regard to demurrage and warfage, ITAT deleted the addition made by Assessing Officer holding that same was incurred by the assessee wholly or exclusively for the purpose of business. With regard to second issue i.e. shortage deduction, ITAT has deleted the addition holding that deduction is not covered under the penalty, but the expenses has been occurred during ordinary course of business. With regard to third issue i.e. addition of unloading charges, ITAT has deleted the addition stating that vouchers are self-contained, whereby, the vehicle trips have been entered and no further discrepancy has been pointed out by the Assessing Officer. With regard to addition on account of vehicle maintenance expenses, ITAT has deleted the expenses holding that on perusal of copy of vehicle maintenance, ledger account filed in the paper book most of the expenses are on account of Tyres and Tubes of the Trucks and the assessee is involved in 4 ITA No.01/2017 the business of material transportation services, therefore, expenses incurred on the vehicle kept for the business cannot be said to involve personal element. With regard to addition of disallowances under section 40 (a) (ia) of the Act, the TDS was not deducted by the assessee under section 194 (I) of the Act, ITAT has deleted the addition holding that in the present case how the provisions of Section 194 (I) of the Act has been made applicable since the trucks hired by the assessee is not anyone of the components as provided under section 194 (I) of the Act. Section 194 (I) of the Act provides for deduction of Tax at source in case of payment towards rent. The rent can be that of land, building, machinery, plant, equipments, furniture or fittings. In the present case, the provision of 194 (I) of the Act is not applicable in view of the fact that trucks hired by the assessee is not anyone of the component as provided under section 194 (I) of the Act. Therefore, it was further held that addition is not permissible as provision of Section 40 (a)(ia) of the Act cannot be invoked. 10. Having heard learned counsel for the appellant on the question of admission and on perusal of order dated 01/03/2013 passed by Assessing Officer and the order dated 09/10/2013 passed by the Commissioner of Income Tax (Appeals), Gwalior, it is seen that ITAT has allowed the appeal by deleting additions which is based on material available on record and has also assigned specific reasons for doing so in para 6 onwards in the impugned order. The 5 ITA No.01/2017 findings of ITAT is based on due appreciation of documents and material available on record which cannot be found fault with. The learned counsel for the appellant is unable to point out any substantial question of law in the instant appeal. 11. Accordingly, we do not find any substantial question of law in this appeal warranting interference by this Court and, therefore, this appeal being devoid of merit is hereby dismissed. No order as to costs. (SHEEL NAGU) (S.A. DHARMADHIKARI) JUDGE JUDGE

Durgekar*