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Income Tax Appellate Tribunal, DIVISION BENCH, ‘B’ CHANDIGARH
Before: SHRI SANJAY GARG & DR. B.R.R. KUMAR
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the assessee against
the order dated 25.10.2012 of the Commissioner of Income
Tax(Appeals)-II, Ludhiana [hereinafter referred to as ‘CIT(A)’].
The assessee through its grounds of appeal has agitated the
estimation of GP rate @ 20% and further disallowance made by the
Assessing officer u/s 40(a)(ia) of the Income-tax Act, 1961 (in short
'the Act').
At the outset, the Ld. Counsel for the assessee has submitted
that the assessee is involved in the business of transportation of
ITA No.1346/Chd/2017- R. Rajinder Pal Singh, Khanna 2
goods. However, the assessee does not possess any truck / vehicle.
The assessee, in fact, is a commission agent as the customers /
consignees / consignors book the trucks through assessee which
work is further outsourced to the truck owners. The consignee /
consigners while making payment deduct TDS in the name of the
assessee because the trucks are hired in the name / through the
assessee. The assessee returned his income for the year under
consideration at Rs. 1,85,300/- under the head ‘business or
profession’. The Assessing officer, however, from the TDS
certificates noted that the turnover of the assessee for the year under
consideration was at about Rs. 75 lacs. He, therefore, estimated the
income of the assessee from the aforesaid turn over @ 20% of the
gross receipts. The Assessing officer further noted that though, the
customers while making payments to the assessee had deducted TDS
for which the assessee had availed refund, however, since the
assessee had sub-contracted the work to the truck owners, hence, the
assessee was required to deduct TDS on the payments made to the
truck owners. He, therefore, made a disallowance of Rs. 8,47,618/-
and Rs. 23,97,226/- (total Rs. 32,44,844/- ) u/s 40(a)(ia) of the Act.
The assessee challenged the aforesaid additions made by the
Assessing officer before the CIT(A), however, remained
unsuccessful.
Before us, Ld. Counsel for the assessee has submitted that
though the trucks were booked through the assessee, however, the
assessee acted just as a commission agent. On the submissions of the
ITA No.1346/Chd/2017- R. Rajinder Pal Singh, Khanna 3
assessee, this Tribunal vide order dated 12.07.2016 directed the
Assessing officer to give report in respect of the above submissions
of the assessee after going through the accounts of the assessee. The
Ld. Assessing officer in her report dated 27.7.2016 has reported as
under:-
“F.No. ITO/w-3/Khanna/2016-17/684 dated 27.07.2016
The Addl. Commissioner of Income Tax (DR), O/o Commissioner of Income Tax (DR)(ITAT,) Aayakar Bhawan, Sector 17-E, Chandigarh Sir, Sub:- Appeal in the case of Sh. Rajidner Pal Singh, Khanna – PAN No. AYVPS09985P in ITA No. 136/Chd/2012 – assessment year 2009-10 – Regarding
Kindly refer to your letter F.No. CIT (DR)/ITAT/Chd/2016-17/297 dated 16.6.2016 vide which you have directed to appeal before the Hon'ble Bench on 12.7.2016.
In this regard, it is submitted that as directed by the Hon'ble Bench, the date of herring, the requisite report of accounting of TDS deducted on Freight payments in the above noted case is submitted asunder:-
2.1 The books of account alongwith relevant documents have been produced by the Shri Hukminder Sahi, CA counsel for the assessee and have been test-checked. The assessee’s counsel has also furnmished copies of the ledger accounts of ‘Freight & Octroi Patel (Modern Steel Ltd), “freight & Octroi Payable (Others), 26AS statement and ‘TDS account’ which were eto produced at the time of assessment.
2.2 On perusal of these accounts, it is found that the assessee is doing business of transport booking agent. The assessee had booked trucks and issued bills / GRs showing truck number in the name of M/s Modern Steel Ltd and other parties mentioned in 26AS Statement. These parties had deducted TDS of the assessee at the time of
ITA No.1346/Chd/2017- R. Rajinder Pal Singh, Khanna 4
payment on the basis of bills / GRs issued. After receiving the payment of freight from the dedicators, the assessee had made payments in cash to the truck owners as per the amounts mentioned against the said bills / GRs issued to the assessee. The assessee has not maintained any ledger accounts of these truck owners in his books of account. He had only maintained ‘Freight & Octroi payable’ account and ‘Commission Account’ in his books of account and booked commission @ 200/- per truck. However, on receipt of these payments from the deductors through cheques, the assessee had returned this freight amount to the truck owners as per bills / GRs and claimed TDS in his ITR for assessment year 2009-10. It is pertinent to mention here that all the payments of freight made to truck owners was below Rs. 20,000/- each and in cash mode only.
2.3 It is further submitted that the assessee has not entered any receipts of freight payments on which tax deducted made by the deductor and also not claimed any expenditure out of these receipts. Submitted of kind perusal, Sir, Yours faithfully, Sd/- (Kiran Bala) ITO, Ward-3, Khanna”
The Ld. Counsel for the assessee while relying upon the report
of the Assessing officer has submitted that the assessee was not
operating as an independent contractor but just as a booking agent.
Whatever the amount of freight was received, the assessee got just a
commission of Rs. 200 per truck. The Ld. counsel, therefore, has
submitted that the Assessing officer has erred in estimating the GP
rate on the basis of TDS certificates and further to invoke the
provisions of section 194C of the Act and holding the assessee as an
independent contractor and thereby making disallowance u/s
40(a)(ia) of the Act that too on assumption basis.
ITA No.1346/Chd/2017- R. Rajinder Pal Singh, Khanna 5
The Ld. DR, on the other hand, has relied on the findings of the
lower authorities.
We have heard the rival submission. In the peculiar facts and
circumstances of this case, in our view, the assessee would not be
termed as an ‘independent contractor’ though the payments were
made by the respective consignee / consigner in the name of the
assessee which were further paid by the assessee to the respective
truck owners. However, the element of profit making by operating
individually as a contractor was missing in these transactions. The
assessee was getting only commission at fixed rate. The operation of
the assessee was in such a manner that neither the assessee had got
chance to earn more / variable profits out of Contract or the freight
received except the fixed commission income of Rs. 200/- per truck,
nor the assessee bore any risk of loss out of the transactions
booked. In the circumstances, the assessee acted just as a commission
agent. In view of the report of the Assessing officer, the assessee
used to Rs. 200/- per truck as commission per booking. Considering
the peculiar facts and circumstances of the case and also in view of
the report of the Assessing officer, we do not find any justification
on the part of the lower authorities in estimating the gross profits of
the assessee on the basis of TDS certificates and further making
disallowance u/s 40(a)(ia) of the Act, Since, the Assessing officer in
her report has stated that the assessee only received commission of
Rs. 200 per truck, hence, there was no justification for estimating the
profit of the assessee on basis of gross receipts which, in fact, were
further paid by the assessee to the truck owners.
ITA No.1346/Chd/2017- R. Rajinder Pal Singh, Khanna 6
Considering the overall facts and circumstances, we do not find any justification on the part of the lower authorities in making the impugned additions and the same are accordingly hereby set aside. However, before parting with the order, we clarify that our above observations made in this case are on the peculiar facts and circumstances of this very case and these will neither operate as a judicial precedent nor should be taken as laying down any proposition of law. Order pronounced in the Open Court. Sd/- Sd/-
(B.R.R.KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 09.05.2018 Rkk
Copy to: • The Appellant • The Respondent • The CIT • The CIT(A) • The DR