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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI SANDEEP GOSAIN & SHRI G. MANJUNATHA
PER G. MANJUNATHA, A.M.
This appeal filed by the Revenue and the cross–objection filed by the assessee are directed against order dated 28th March 2012, passed
by the learned Commissioner (Appeals)–II, Nagpur, and they pertain
to assessment year 2008–09.
Since the appeal and the cross–objection pertain to the same
assessee involving common issues arising out of identical set of facts
and circumstances, therefore, as a matter of convenience, these were
heard together and are being disposed off by way of this consolidated
order.
ITA no.238/Nag./2012 Revenue’s Appeal – A.Y. 2008–09
The grounds raised by the Revenue are reproduced below:–
“1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in holding that only the TDS received by the assessee to the extent of ` 74,33,739 is his income.
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not upholding the disallowance of undisclosed transportation receipts at ` 1,04,73,178 made by the Assessing Officer though the deductors have rightly debited the receipts in the account of the assessee as freight charges.
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in considering that if all receipts are taken to the assessee’s receipts then the payments made by principal purchasers should also be considered as assessee’s
3 M/s. Shivprakash Rajnarayan Mishra (HUF)
expenses out of this receipt, ignoring the fact that the assessee has not claimed any expenditure in this regard in his return of income.”
Brief facts of the case are that the assessee is HUF engaged in
the business of transport commission agent under the name and style
of “S.S. Transport Company”. The assessee filed its return of income for the assessment year 2008–09 on 26th March 2009, declaring total
income of ` 1,92,600. The case was selected for scrutiny. During the
course of assessment proceedings, the Assessing Officer noticed that
the assessee has claimed TDS credit of ` 2,48,484, against gross total
receipts of ` 9,49,680 and claimed refund of ` 2,35,590. In order to
ascertain the correctness of claim of refund of TDS claimed, the
Assessing Officer called upon the assessee to file necessary evidences
along with its books of account. In response to the notice, the assessee, vide its reply dated 23rd September 2010, submitted that it
is in the business of transport commission agent facilitate movement
of goods from Southern States to Madhya Pradesh and Uttar Pradesh
by arranging trucks from Nagpur, because the truck owner of Southern
Stats is having transport permit up to Nagpur. The assessee further
contended that the transport operator from Southern State provide
transportation till Nagpur and thereafter it used to engage the trucks
on hire on behalf of principal purchaser (consignee) at Nagpur and
prepared the bilty from Nagpur to Uttar Pradesh / Madhya Pradesh.
4 M/s. Shivprakash Rajnarayan Mishra (HUF)
The consignee have directly paid the transportation charges to the
truck owners, however, it has paid transportation charges from Nagpur
to the respective point of delivery but the same has been reimbursed
by the consignee. The Assessing Officer after considering the
submissions of the assessee held that though the assessee has
received transportation charges of ` 1,14,22,786, has considered only
an amount of ` 9,49,680, in its return of income without offering any
proper explanation about the balance transportation charges. The
Assessing Officer further observed that the parties have deducted TDS
under section 194C of the Income Tax Act, 1961 (for short “the Act”)
@ 2% and the assessee has claimed credit for TDS without offering
corresponding receipts for taxation. Therefore, he made an addition of
` 1,04,73,178, as undisclosed transportation receipts. Aggrieved by
the assessment order so passed by the Assessing Officer, the assessee
preferred appeal before the first appellate authority.
The assessee, before the learned Commissioner (Appeals), filed
elaborate written submissions which have been reproduced from
Page–5 to 17 of the order of the learned Commissioner (Appeals). The
assessee also filed certain additional evidences including confirmations
from parties to prove that it is acted only as an agent to facilitate
movement of goods from Southern States to Uttar Pradesh and
Madhyra Pradesh from Nagpur for which they have stated that the
5 M/s. Shivprakash Rajnarayan Mishra (HUF)
assessee is acting as an agent. The learned Commissioner (Appeals)
has forwarded additional evidences filed by the assessee to the
Assessing Officer for his comments. The Assessing Officer, vide its remand report dated 19th August 2011, commented on additional
evidences filed by the assessee and its admissibility in the light of rule
46A of the Income Tax (Appellate) Tribunal Rules, 1962. The learned
Commissioner (Appeals) after considering the submissions of the
assessee held that the assessee is a commission agent and has been
helping parties in Uttar Pradesh for arranging truck at Nagpur for
which he gets his commission and also gets his money reimbursed
which he has paid to South Indian truck owners. The learned
Commissioner (Appeals) further observed that the principal purchasers
have not only reimbursed the freight paid by the assessee on their
behalf and its commission for services rendered. The principal
purchasers have deducted TDS since they have made the payment to
the assessee as per the provisions of section 194C of the Act which
mandates deduction of tax at source on any payment made to any
transporter including agent. The assessee has filed all the details
including confirmation which clearly shows that he is acting as a
commission agent for facilitating movement of goods from South
Indian truck owners to Uttar Pradesh and Madhya Pradesh States by
arranging trucks at Nagpur. Therefore, he opined that the Assessing
Officer was erred in making additions on gross receipts. However, the
6 M/s. Shivprakash Rajnarayan Mishra (HUF)
learned Commissioner (Appeals) further observed that if at all any
addition is required, the addition can be made only to the extent of
TDS claimed by the assessee but not the total transport receipts.
Accordingly, he has deleted the additions made by the Assessing
Officer and confirmed the addition to the extent of ` 2,48,484.
Aggrieved by the order of the learned Commissioner (Appeals), the
Revenue is in appeal before us.
The learned Departmental Representative submitted before us
that the learned Commissioner (Appeals) erred in deleting the
additions made by the Assessing Officer by holding that only the TDS
on gross receipts needs to be added but not the total contract receipt
ignoring the fact that the deductors have rightly debited the amount
paid to the assessee as freight charges in their books of account. The
learned Departmental Representative further submitted that the
learned Commissioner (Appeals) erred in considering that if at all the
receipts are to be taken as assessee’s receipts, then the payments
made by the principal purchasers should also to be considered as
expenditure ignoring the fact that the assessee has not claimed any
expenditure in this regard. The Assessing Officer has brought out clear
facts to the effect that the assessee has omitted to include transport
receipt in his books of account and accordingly has rightly made the
additions as undisclosed receipts and his order should be upheld.
7 M/s. Shivprakash Rajnarayan Mishra (HUF)
The learned Authorised Representative, on the other hand,
strongly supporting the order of the learned Commissioner (Appeals)
submitted that the assessee has filed necessary details before the
learned Commissioner (Appeals) to prove that it acted only as an
agent for commission which has been rightly considered in his books of
account, therefore, the Assessing Officer was incorrect in making
additions towards gross receipts on the basis of TDS certificate
ignoring the fact that the assessee has considered the amount paid by
the principal purchasers as reimbursement of expenses after
considering its commission income. The assessee also filed
confirmation from the parties where they have categorically stated
that they have paid transportation charges directly to the truck owners
and the assessee gets only commission. The learned Commissioner
(Appeals) has appreciated these facts in right perspective to delete the
additions made by the Assessing Officer to the extent of receipts
excluding TDS. However, in respect of TDS credit, the assessee has
already considered commission income in its books of account which
includes TDS deducted by the payer, therefore, further addition
towards TDS credit amounts to double addition which is incorrect.
We have heard rival contentions, perused the orders of the
authorities below and the material available on record. The assessee
has considered commission income in its books of account after
8 M/s. Shivprakash Rajnarayan Mishra (HUF)
claiming certain expenses and declared income of ` 1,92,600. The
assessee claimed TDS credit of ` 24,484, making a claim of refund of `
2,35,590. The Assessing Officer made additions towards transportation
charges on the ground that the assessee claimed credit for TDS, but
failed to consider corresponding receipts in its books of account. It is
the claim of the assessee that it has considered commission income in
its books of account as it is working as a commission agent for
facilitating movement of goods from Southern States to Uttar Pradesh
and Madhya Pradesh by arranging the trucks from Nagpur, because
the truck owners from Southern States has transport permit up to
Nagpur and they cannot travel beyond Nagpur. The assessee was
further claimed that it has paid transport charges from Nagpur to the
point of delivery on behalf of principal purchaser and the same has
been reimbursed by the principal purchaser, but TDS has been
deducted on gross payment including commission and reimbursement
of expenditure in view of specific provisions of section 194C of the Act.
But, the fact remains that it has acted only as an agent on commission
basis which has been rightly considered in its books of account.
Having heard both the parties, we find merit in the arguments of
the learned Authorised Representative for the assessee for the reason
that the assessee has filed necessary evidences including confirmation
from the consignee to prove that it has acted only as an agent for
9 M/s. Shivprakash Rajnarayan Mishra (HUF)
facilitating movement of goods from Nagpur to Uttar Pradesh and
Madhya Pradesh States on behalf of principal purchaser on commission
basis. The assessee also filed confirmations from the consignee where
they have categorically stated that the assessee is only a commission
agent. The assessee also filed other evidences to prove that though
the principal purchasers have deducted TDS on gross payment which
includes reimbursement of transportation charges paid by the
assessee on behalf of principal purchaser. The learned Commissioner
(Appeals) has considered all these facts to come to the conclusion that
the assessee acted as a commission agent and accordingly allowed
relief by deleting the addition made by the Assessing Officer towards
gross transportation charges on the basis of TDS certificate, excluding
the amount of TDS credit claimed by the assessee. Consequently, we
do not find any error or infirmity in the findings of the learned
Commissioner (Appeals) and dismiss the grounds raised by the
Revenue.
Coming to the cross–objection filed by the assessee, we find that
the assessee has filed the present cross–objection in support of the
order passed by the learned Commissioner (Appeals). Since we have
dismissed the grounds raised by the Revenue in its appeal as
aforesaid, resultantly, the cross–objection filed by the assessee
becomes infructuous and, hence, liable to be dismissed.
10 M/s. Shivprakash Rajnarayan Mishra (HUF)
In the result, Revenue’s appeal is dismissed and assessee’s
cross–objection is also dismissed.
Order pronounced in the open Court on 25.10.2018
Sd/- Sd/- SANDEEP GOSAIN G. MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER
NAGPUR, DATED: 25.10.2018
Copy of the order forwarded to:
(1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Nagpur City concerned; (5) The DR, ITAT, Nagpur; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary
(A.R./Sr. P.S./P.S.) ITAT, Nagpur