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Facts
The assessee, a proprietor engaged in trading betel nuts, faced disallowance of clearing and forwarding charges (Rs. 33,49,590) and commission expenses (Rs. 9,63,914) for non-deduction of TDS under sections 194C and 194H of the Income Tax Act, 1961. The AO disallowed the entire amount, which was upheld by the CIT(A) except for certain interest disallowances.
Held
The Tribunal held that the disallowance for clearing and forwarding charges was justified as the payments included truck fare and detention charges, not just reimbursement, attracting TDS under Section 194C. For commission expenses, the assessee's concession to the AO was noted. However, relying on the Vatika Township case, the amendment to Section 40(a)(ia) was held to be retrospective, limiting the disallowance to 30% of the impugned amount for both clearing and forwarding charges and commission expenses.
Key Issues
Whether disallowances under Section 40(a)(ia) for non-deduction of TDS are applicable to reimbursement expenses and whether the amendment to Section 40(a)(ia) is retrospective in nature.
Sections Cited
143(3), 250, 40(a)(ia), 194C, 194H, 44AB, 143(2), 142(1), 271(1)(c), 113
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Income Tax Appellate Tribunal, KOLKATA ‘C’ BENCH, KOLKATA
Before: SHRI GEORGE MATHAN & SHRI RAKESH MISHRA
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)-NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2014-15 dated 23.09.2022, which has been passed against the assessment order u/s 143(3) of the Act, dated 29.12.2016. I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka.
The assessee is in appeal before the Tribunal raising the following grounds of appeal:
“1. For that on the facts and in the circumstances of the case, the Ld. CIT(Appeals)NFAC, was vehemently wrong and unjustified in confirming the disallowance of expenditure of clearing and forwarding charges amounting to Rs. 33,49,590/- made u/s. 40(a)(ia) r.w.s. 194C of the Income Tax Act, 1961, even when the charged provisions were not applicable in the present facts of case. Relief Claimed: The disallowance of expenditure to the tune of Rs 33,49,590/- is liable to be deleted.
Without prejudice to above, for that on the facts and circumstances of the case, the Ld. A.O. as well as the Ld. CIT(Appeals)NFAC, grossly erred and failed to appreciate the fact that the reimbursement of expenses paid is not applicable under the provisions of section 40(a) (ia) r.w.s 194C of the IT Act 1961. Relief Claimed: The disallowance of expenditure to the tune of Rs 33,49,590/- is liable to be deleted.
For that on the facts and circumstances of the case, the Ld. CIT(Appeals)NFAC, grossly erred in confirming the disallowance of expenditure on account of commission expense amounting to Rs 9,63,914/- made by the Ld. A.O. by invoking the provisions of section 40(a)(ia) r.w.s. 194H of the Income Tax Act, 1961, without giving any credence to the submission made by the appellant which is in gross violation of the principles of natural justice and hence illegal, arbitrary and highly unjustified. Relief Claimed: The disallowance of expenditure to the tune of Rs 9,63,914/- is liable to be deleted.
Without prejudice to above, the Ld. CIT(Appeals)NFAC, was wrong and unjustified in not restricting the disallowance of expenditure made invoking the provision of section 40(a)(ia) of the Income Tax Act, 1961 to 30% of the total expenditure. Relief Claimed: The disallowance of expenditure to the tune of Rs 43,13,504/-(3349590+963914) should be restricted to 30%.
That the appellant craves leave to add/alter, modify, amend, delete and/or withdraw any or all of the grounds of appeal.” I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka.
Brief facts of the case are that the assessee is an individual and is the owner of proprietorship business M/s. Ganpati Exim and during the under consideration he was engaged in the trading business of importing betel nuts and selling them locally and the accounts are stated to be audited under section 44AB of the Act. The assessee had e- filed the return of income for the relevant assessment year on 30.11.2014 declaring total income of Rs. 6,80,980/- comprising of income from salary, house property and business or profession. The case of the assessee was selected for scrutiny through CASS, the reasons being large commission expenses and low net profit and low net profit or less shown from large gross receipt. Accordingly, statutory notices u/s 143(2) and 142(1) of the Act were issued and duly served upon the assessee which were complied with. The assessee filed various documents such as copy of income tax return, profit and loss account, balance sheet, detailed document of custom duty paid, sales tax paid, documents of transport and clearing & forwarding expenses. The Assessing Officer (hereinafter referred to as ld. 'AO') noted that the assessee had fabricated the documents for clearing and forwarding charges and for the commission expenses, the assessee conceded vide a statement submitted before the Ld. AO that the proposal for disallowance of payment of commission of Rs. 9,63,914/- was justified as per rule as the TDS of Rs. 96,391/- remained outstanding in the balance sheet as on 31st March, 2014 and was not deposited till the date of hearing before the Ld. AO. Accordingly, the Ld. AO disallowed the claims of the assessee and assessed the total income u/s 143(3) of the Act amounting to Rs. 50,00,667/- including other additions as well. Penalty proceedings u/s 271(1)(c) of the Act were also initiated separately. I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka.
Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who, vide order dated 23.09.2022, partly allowed the appeal of the assessee. The disallowances on account of interest on credit card payment and interest and late fee of CST/VAT payment were deleted, but the disallowances on account of clearing and forwarding charges and commission charges were confirmed. The relevant extract from the order of the Ld. CIT(A) for confirmation of additions is as under:
“5. I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order. The contentions/submissions of the appellant are being discussed and decided as under:- . .
3 Ground No. 3: Disallowance of clearing and forwarding charges of Rs. 33,49,590/-. The AO has disallowed these expenses u/s 40(a)(ia) of the IT Act, 1961 for violation of provision u/s 194C. The appellant submitted that the payment of Rs. 33,49,590/- includes few expenses which are reimbursement in nature and does not attract liability of TDS. The AO found that assessee made payment to his contractor agent. He held that the claim of the assessee regarding reimbursement is baseless. It is noted that the assessee has paid Rs. 3349590 to Preeti Enterprises (CFA Agent). These expenses included labour, detention, parking and as clearing and forwarding charges other charges. The bills show that these are for truck fare and detention charges mainly. As per Circular No. 715 Dated 08-08-2015, any payments made to clearing an forwarding agents for carriage of goods shall be subjected to deduction of tax at source under section 194C. The activities carried out by clearing and forwarding agent (C&F Agent) from one composite "Work", and Any Payments to such agent will attract deduction of tax at source only under section 194C of the Act. It was held that such payments could not be treated as fees for professional or technical services and subjected to tax deduction at source under section 194J, since the nature of the service were in pari materia with the nature of services as contemplated in section 194C- Glaxo Smithkline Consumer Healthcare Ltd. Vs. ITO (2007) 12 SOT 221 (Delhi- Trib.) I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. The claim of the assessee that there was an agreement with the agent that only commission at the rate of Rs. 3000/- per bill will be paid and all other expenses will be reimbursement. Any such agreement cannot prevail over the existing provisions of the law. The assessee was liable to deduct TDS on the clearing and forwarding charges of Rs 33,49,590/-. He failed to deduct TDS. Therefore, the Assessing Officer has correctly disallowed the payment/expense as per section 40(a)(ia) of the I. T. Act. The ground of appeal no. 3 is dismissed.
4 Ground No. 4: Disallowance of commission charges of Rs. 9,63,914/- u/s 40(a)(ia) of the I. T. Act for violation of section 194H. The AO has noted on page 4 of the order that in response to the show cause notice, the assessee has accepted that the proposal for disallowance of payment of commission of Rs. 9,63,914/- is justified as per rule. No new facts has been brought in the appeal. Therefore, the ground of appeal no. 4 is dismissed.
5 Ground No. 5 is general in nature and needs no adjudication, therefore it is dismissed.
In the result, the appeal of the appellant is Partly allowed.”
Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.
Rival submissions were heard and the record and the paper book and the submissions made have been examined. The Ld. DR relied upon the order of the Ld. CIT(A) and requested that the same may be upheld. Ground Nos. 1 and 2 relate to disallowance of expenditure on account of clearing and forwarding charges. It was submitted before us by the Ld. AR that the assessee had claimed a sum of Rs. 33,49,590/- under the head ‘clearing and forwarding charges’ which were disallowed by the Ld. AO u/s 40(a)(ia) r.w.s. 194C of the Act. The Ld. AO treated the same as fabricated. It is submitted that the assessee had paid these charges to the contract agent M/s. Preti Enterprise who is mainly a Customs Authorized (Land), Clearing, Forwarding & Transport Commission agent and the expenses are mostly reimbursement in nature and thus do not attract the liability of deduction of TDS u/s 194C of the Act. It was I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. further submitted that the nature of expenses, for which charges were paid to the agent are in the nature of labour charges, parking charges, truck fare & detention charges, pest control charges etc. It was further submitted that the expenses were paid to the commission agent for performing the duties mentioned in the agreement and if any expenses were incurred by the Commission agent for fulfilling his duty, the same were to be reimbursed for which the commission agent had to raise an invoice stating all the expenses which were to be reimbursed plus his commission amount separately. The copies of such invoices were filed in the paper book filed. Our attention was drawn to page 53 of the paper book which is a copy of the agency agreement (Freight Forwarders) between Ganpati Exim Prop Sri Murari Lal Murarka, son of Late Parmeshwar Lal Murarka and Preti Enterprise of Sri Tapas Mazumdar, son of Late H.K. Mazumdar. It is mentioned at page 54 that the party of the second part i.e. Sri Tapas Mazumdar shall raise and expend on behalf of the party of the first part freight charges, parking charges, detention charges, labour charges, documentation and processing expenses and it will be reimbursed by the Party of the first Part to be applied for sales lead shipment, joint secured shipment and routing order shipment. At page 56 of the paper book details of 10 transactions totalling to Rs. 33,49,590/- with the breakup of agency commission and reimbursement of labour charges, detention charges and parking charges and other charges have been filed which amount to Rs. 33,49,590/- for 10 transactions. The bills from M/s. Preti Enterprise being the C & F agent are also stated to be enclosed at pages 57 to 65 of the paper book. It was stated that the assessee had also filed Form No. 26 of the agent and only commission of Rs. 30,000/- was paid on which there was no liability for deduction of TDS as TDS was liable to I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. be deducted if the amount exceeded Rs. 30,000/- or the aggregate amount of such amount exceeded Rs. 1 Lakh during the financial year and since the rest of the amount was in the nature of reimbursement of expenses, no TDS liability was arising and, therefore, the same was not liable to be disallowed. We have noted, however, that the Ld. CIT(A) has referred to the Circular No. 715 dated 08.08.2015 and a perusal of the order of the Ld. CIT(A) shows that these are truck fare and detention charges mainly whereas in the agreement no such payment for truck charges is mentioned. The Ld. AR also argued that this did not amount to a composite supply which had been treated as ‘work’ by the Ld. CIT(A) and who, relying upon the case of Glaxo Smithkline Consumer Healthcare Ltd. Vs. ITO (2007) 12 SOT 221 (Delhi-Trib.), confirmed the addition. It was submitted that the assessee through his legal advisor had sent a letter to the concerned party on 30.12.2023 through Speed Post and in response to that letter the party had sent its ITR acknowledgment copy along with financial statement. However, the same was neither filed before the Ld. AO nor before the Ld. CIT(A) and is an additional document. The assessee also relied upon the decision of ITAT ‘C’ Bench Kolkata in the case of M/s. Umananda Rice Mill Ltd. Vs. ACIT, Circle-2, Burdwan in ITA No. 615/Kol/2020 A.Y. 2011-12; order dated 03.11.2022 in support of the claim that since the payment made by the assessee to the said concern had duly been shown in the return of income and due tax was also paid, no disallowance can be made u/s 40(a)(ia) of the Act.
We have considered the submissions made. However, on examination of the bills of the C&F agent which have been enclosed with the paper book, specifically bills relating to dated 28.01.2014 which are 4 in numbers and 24.02.2014, it is seen that the assessee has paid I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. mainly truck fare and detention charges of Rs. 3,64,000/-, Rs. 6,24,000/-, Rs. 4,12,500/- and Rs. 4,12,500/- and the bill for detention charges and truck fare charges of Rs. 3,42,550/- paid on 24.02.2014 was not even enclosed. Thus, it is observed that the assessee is not paying merely commission to the agent but has also paid truck fare and the details of such trucks are not even mentioned. The Ld. CIT(A) has rightly held that the same were liable to be disallowed as no TDS was deducted. During the course of the hearing, the Bench was inclined to delete the addition but on perusal of the bills it is observed that these are not only for labour charges or parking charges and other charges claimed but are mainly for truck fare and detention charges for which the assessee is liable to deduct tax at source. As per CBDT Circular No. 715 dated 08.08.2015 in response to question no. 6, it is answered that as regards payments made to clearing and forwarding agent for carriage of goods, the same shall be subjected to tax deduction at source u/s 194C of the Act. The Question no. 6 and the answer reproduced as under: “Question 6: Whether payment under a contract for carriage of goods or passengers by any mode of transport would include pay-ment made to a travel agent for purchase of a ticket or payment made to a clearing and forwarding agent for carriage of goods? Answer: The payments made to a travel agent or an airline for purchase of a ticket for travel would not be subjected to tax deduction at source as the privity of the contract is between the individual passenger and the airline/travel agent, notwithstanding the fact that the payment is made by an entity mentioned in section 194C(1). The provision of section 194C shall, however, apply when a plane or a bus or any other mode of transport is chartered by one of the entities mentioned in section 194C of the Act. As regards payments made to clearing and forwarding agent for carriage of goods, the same shall be subjected to tax deduction at {Emphasis supplied } source under section 194C of the Act.” I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka.
Although the assessee has filed the copy of the return of income of the agent but no Form No. 26 evidencing that the payment has been included in the income of the agent has been filed. It is not specified as to how much amount is included in the return of the agent, therefore, the decision relied upon in the case of M/s. Umananda Rice Mill Ltd. vs. ACIT in ITA No. 615/KOL/2019 order dated 03.11.2022 does not help the assessee. Therefore, the decision of the Ld. CIT(A) that these were not in the nature of reimbursement expenses but were for contractual payment is justified and the same is hereby upheld. Hence, Ground Nos. 1 and 2 are dismissed.
Ground no. 3 relates to disallowance of commission expenses amounting to Rs. 9,63,914/-. It is mentioned by the Ld. AO in the assessment order that in response to the query as to why the commission expenses should not be disallowed u/s 40(a)(ia) of the Act for violation of provision of section 194H of the Act, the Ld. AR had responded that the proposal of the Ld. AO for disallowing commission of Rs. 9,63,914/- was justified as per Rule and on account of the concession made by the assessee the same was disallowed. Before us, in the written submission filed, the assessee has enclosed the commission sales agreement with M/s. Panna Lal Mahesh Chandra Jewellers, the commission agent. It is intriguing to note that the assessee is a trader in betel nuts but the commission has been paid to a jeweller. The assessee has also filed the ITR acknowledgement copy of the commission agent, however, no Form No. 26 evidencing that the amount has been included in the income of the agent has been filed. As per the agreement, the agent is authorized to draw commission and other incidental charges i.e. selling commission, brokerage, loading and unloading charges, bank commission, railway freight, lorry hire interest I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. etc. However, neither any copy of ledger account has been enclosed nor the bills in this regard have been filed. Since the assessee had concealed before the Ld. AO that as no TDS u/s 194H of the Act was deducted, the disallowance was called for, therefore, the assessee gets no relief and the reliance on the decision of M/s. Umananda Rice Mill Ltd. (supra) is also not of any help to the assessee.
In Ground no. 4 as an alternative argument, it is prayed to restrict the disallowance to the extent of 30% u/s 40(a)(ia) of the Act. Our attention was drawn to page 12 of the paper book as also the decision of Hon'ble Supreme Court in the case of CIT vs. Vatika Township (P.) Ltd. [2014] 367 ITR 466 (SC) and it is argued that since the amendment in section 40(a)(ia) of the Act was brought to remove the hardship, the same is curative and therefore retrospective in nature and the assessee has requested to restrict the disallowance to 30% as per section 40(a)(ia) of the Act as amended by the Finance Act, 2014. 11. We have considered the submissions made. In the case of Vatika Township (P.) Ltd. (supra) the Hon'ble Supreme Court relating to interpretation for retrospectivity of the provisions have held as under: “A legislation, be it a statutory Act or a statutory rule or a statutory Notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a Court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter one is to be found in the various principles of 'Interpretation of Statutes'. Vis-à- vis ordinary prose, a legislation differs in its provenance, lay-out and features as also in the implication as to its meaning that arise by presumptions as to the intent of the maker thereof. [Para 30] I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. One principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Philips v. Eyre [1870] LR 6 QB 1 a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. [Para 31] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. [Para 32] For the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. [Para 33] In such cases, retrospectively is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to section 113 is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, one has to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by out weighing factors. [Para 34] When one examines the insertion of proviso in section 113, keeping in view the aforesaid principles, the irresistible conclusion is that the intention of the legislature was to make it prospective in nature. This proviso cannot be I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. treated as declaratory/statutory or curative in nature. There are various reasons for coming to this conclusion which are given hereinbelow: {emphasis supplied}
Further, as per the proviso to section 40(a)(ia) of the Act, if the assessee makes the payment of TDS in the subsequent year, the consequential relief would be allowed @ 30% of the amount on which TDS was liable to be made. This itself, coupled with other decisions namely Amruta Quarry Works vs. ITO in ITA No. 1481/AHD/2013 order dated 19.07.2016, justifies the claim of the assessee that the amendment to section 40(a)(ia) of the Act is to be treated as retrospective in nature as the same is clarificatory in nature. The relevant extract from the decision is as under: “6.1 Ld. Counsel for the assessee then contends that the amendment is clarificatory in nature inasmuch as in clause 14.3 of the explanatory notes in this behalf mentioned as under:- "14.3 As mentioned above, in case of non-deduction of tax at source or non-payment of tax so deducted from certain payments made to residents, the entire amount of expenditure on which tax was deductible is disallowed under section 40(a)(ia) for the purposes of computing income under the head "Profits and gains of business or profession". The disallowance of whole of the amount of expenditure causes hardship, especially in case of payment made to a resident in whose case the withholding of tax is only a mode of collection of tax and does not result into final discharge of tax liability."
2 Since the amendment has been brought to remove the hardship caused to the assessee, the amendment assumes the character of being clarificatory in nature and is retrospectively applicable. Reliance is placed on Five
3 Ld. Counsel for the assessee contends that the amendment to Section 40(a)(ia) brought in by Finance (No.2) Act, 2014 may be held as I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. retrospectively applicable; in view thereof 30% of the amount on which TDS has not been deducted may be held as disallowable u/s 40(a)(ia).
Ld. Departmental Representative is heard.
I have heard the rival contentions, perused the material available on record and gone through the orders of the lower authorities. I find merit in the contentions of the ld. Counsel for the assessee. Respectfully following the judgment of Vatika Township Private Limited (supra), the amendment brought in by Finance (No.2) Act of 2014 in Section 40(a)(ia), the same is held to be retrospective in nature; therefore, the amount to be disallowed u/s 40(a)(ia) should be restricted to 30% of the impugned amount. Thus, the assessee's appeal is partly allowed.
In the result, the appeal of the assessee is partly allowed.”
Considering the decisions relied upon and as the amendment to section 40(a)(ia) of the Act is considered to be retrospective in nature, the disallowance made u/s 40(a)(ia) of the Act for non-deduction of TDS u/s 194C and 194H of the Act is restricted to 30% of the claim, even though for the disallowance u/s 194H of the Act, the assessee had conceded the entire addition to be disallowed and Ground No. 4 of the appeal is allowed in favour of the assessee.
The other grounds of appeal being general in nature do not require any separate adjudication.
In the result, the appeal filed by the assessee is partly allowed. Order pronounced in the open Court on 20th May, 2025. [George Mathan] [Rakesh Mishra] Judicial Member Accountant Member Dated: 20.05.2025 Bidhan (P.S.) I.T.A. No.: 636/KOL/2022 Assessment Year: 2014-15 Murarilal Murarka. Copy of the order forwarded to:
Murarilal Murarka, 5C, Earle Street, Kolkata, West Bengal, 700026. 2. I.T.O., Ward-61(3), Kolkata.
CIT(A)-NFAC, Delhi.
CIT-
CIT(DR), Kolkata Benches, Kolkata.
Guard File. //// By order