TMI Blog2011 (9) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... roper evidence, we are unable to certify whether proper TDS is deducted or not in respect of contractual obligation. 2.1 The brief facts of this case are that the appellant had deducted TDS of ₹ 99,122 corresponding to freight paid of ₹ 89,07,453 only and for the balance a list of 157 parties was submitted to whom lorry hire charges were paid totaling ₹ 7,16,243. Out of this, an amount of ₹ 2,86,74,168 pertain to expenses on own lorries and not exceeding ₹ 50,000. The A.O. after reducing this amount treated the balance of ₹ 4,29,72,075 as liable for TDS deduction under section 194C and since appellant had deducted TDS of ₹ 99,122 only gave the benefit of ₹ 89,07,453 treated the appellant as in default for the remaining amount of ₹ 3,40,64,622 and disallowed this u/s 40(a)(ia) of the Act. The A.O. further observed that the list of 157 parties given by the appellant during the course of assessment proceedings, containing Form no.15I, for exemption from TDS deduction had a lot of discrepancies which rendered the declaration in Form no.15-I as invalid inasmuch as these declarations were undated and is not contain the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led, granted relief to the assessee. Aggrieved, the Revenue is in appeal Before the Tribunal. 4. Before us, learned Departmental Representative, Mr. Pradeep Sharma, on behalf of the Revenue, submitted that the auditors of the assessee had, in their audit report, clearly stated that there is no proper evidence to enable them to certify that proper TDS is deducted in respect of contractual obligations. He thus submitted that, the circumstantial evidences demonstrate that Form no.15-I, claiming exemption from TDS was not available with the assessee at the time of making of the payments under the contractual obligations. He vehemently contended that Form no.15-I, is neither reliable nor properly verified and also not substantiated. He submits that it is apparent that these forms were not taken before the payment was made as they were not even before the auditors. He claimed that there were major defects in Forms no.15-I and it is not a case of merely minor errors. He pointed out that most of the Forms no.15-I, do not contained the date of issue or the proper address. He submitted that the assessee is shifting his stands. He referred to the Circular no.715 dated 8th August 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, as per law, the assessee was required to file form no.15-I only in respect of 65 cases amounting to ₹ 44,05,281 and it was out of abundant caution that form no.15-I was collected from other truck owners, whose aggregate bill with the assessee did not exceed ₹ 50,000 per annum. He pointed out that from all the 65 parties in question, form no.15-I was obtained and filed. He submitted that just because the assessee obtained the information and filed the same with the Assessing Officer, no adverse inference can be drawn and it is wrong on behalf of the learned Departmental Representative to say that the assessee influenced the parties. Regarding provisions of section 194C(2), learned Counsel submitted that this is a legal issue and the assessee is entitled to raise the same before the Commissioner (Appeals) and no adverse inference can be drawn from the same. For the proposition that a new ground can be raised by the defence, he relied on the following case laws:- B.R. Bamasi vs CIT, (1970) 83 ITR 223 (Bom.); ITO v/s Rama Nand Co. Ors. (1987) 163 ITR 702 (P H); and CIT v/s Bhagwati Steels, (2010) 326 Itr 108 (P H) 6. Learned Counsel r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26th June 2009, and despite the same, there was no investigation or evidence brought out by the Assessing Officer. He submitted that Permanent Account Number need not be compulsorily mentioned and that this aspect is evidenced from Form no.15-I itself. He submitted that assuming without conceding that there are defects in Form no.15-I, then the correct course of action for the A.O. would be to give an opportunity to the assessee to rectify the defects for which proposition he relied on the judgment of Hon ble Madras High Court in Vijay Hemant Finance Estates Ltd. v/s ITO Anr., (1999) 238 ITR 282 (Mad.). He submitted that the assessee had filed the returns as per Rule 29, along with Form no.15-I before the Commissioner of Income Tax and the same has been accepted, though there was a delay and that no defects were pointed out in these returns or forms. He pointed out that the Assessing Officer neither rejected any of the information filed by the assessee nor took any step to examine whether this information was right or wrong and that he failed to demonstrate that the information furnished is incorrect. He filed copy of assessment orders of the subsequent assessment years and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs have not been given. Nevertheless, Col.3, of Form no.15-I, makes it clear that Permanent Account Number need not be given only in case where the truck owners has a Permanent Account Number. The assessee has also filed the return as well as form no.15-I s in terms of Rule-29 before the Commissioner, though with a delay and there is no adverse observations made by the Commissioner. In fact, all these Form no.15 s are accepted by the ld. Commissioner of Income Tax. The assessee, in this case, has obtained and submitted all the required information either before the Assessing Officer or before the Commissioner (Appeals). It is nobody s case that information has not submitted. The grievance seems to be that the assessee filed the information and not the party directly. This is no ground for rejecting a claim. The information was in fact not asked directly from the lorry owners. As rightly pointed out by the learned Counsel, if it was a case of the Assessing Officer that there are certain defects or mistakes in form no.15-I, then the Assessing Officer is duty bound to give the assessee an opportunity to rectify the defects. Without giving such an opportunity, no adverse infe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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