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TMI Blog2015 (10) TMI 2554X X X X Extracts X X X X X X X X Extracts X X X X ..... ower authorities are against principles of natural justice. Appellant was not confronted with the material used against the appellant and was not given opportunity of rebuttal." 2. The assessee is a transport contractor filed its return on 31/3/2009 declaring total income of Rs. 3,68,633/-. The case was scrutinized U/s 143(3) of the Income Tax Act, 1961 (in short the Act). The assessee is an individual and enjoys income from commission agency in the name and style of M/s Sikar Ludhiyana Road Lines. During the assessment proceedings written submissions were filed and books of account were produced, which were examined on text check basis by the Assessing Officer. 2.1 All the four grounds of appeal are interlinked and are against not deducting TDS on payment of Rs. 87,97,747/-, payments to drivers U/s 194C(2) of the Act. The ld Assessing Officer observed that on verification of books of account, it was found that the assessee had shown gross receipts at Rs. 7,35,550/- on account of book receipts. Whereas, as per TDS certificates claimed by the assessee, his gross receipts were Rs. 1,01,08,222/-. Therefore, the ld Assessing Officer gave show cause notice on him. The assessee submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. assessee. There are so many trucks which had been engaged by the assessee repeatedly during the year under reference and hence by conduct of both the parties, existence of contract between them cannot be denied. It is settled legal position that there need not be a written agreement so as to prove existence of contract. The existence or otherwise of a contract was to be seen from the conduct of both the parties. In case there were frequent dealings to render transport services between the assessee and truck owners and hence it does tantamount to contract. This work is again sublet by the assessee to different truck owners engaged from the market repeatedly. The assessee is liable to make TDS U/s 194C(2) of the Act, which he had failed to deduct TDS, therefore, he applied provisions of Section 40(a)(ia) of the Act. In view of the above facts and circumstances, the assessee had committed default he made payment exceeding Rs. 50,000/- during the year and where a single payment exists Rs. 20,000/- had been annexed as per Annexure A to the assessment order. Total of such payments made out by the Assessing Officer at Rs. 87,97,747/- and same was added U/s 40(a)(ia) of the Act. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hiring the same trucks and therefore conduct of both the parties revealed that there existed a contract between the assessee and various truck owners. The ld CIT(A) further held that the assessee had not filed Form No. 15-I before the Assessing Officer or CIT(TDS) on or before 30/06/2008 for relevant to assessment year 2008-09. The Form No. 15-J was dated 29/06/2008, however, it did not bear the stamp and signature of concerned receipt clerk. The Form No. 15-J therefore had no legal sanctity. The annexure forming part of Form No. 15-J contained the details of individual truck owners and the amount of freight credited to their accounts. The alleged Form No. 15-I were predated so as to given shade of genuineness to the alleged documents. Therefore these documents are liable to be rejected. Photo copy of the Form No. 15-J filed during the course of appellate proceedings, which was originally to be filed before the Addl.CIT, Range-4, Jaipur on 30/06/2008, which was adjudicated by the ld CIT(A) as additional evidence under Rule 46A of the I.T. Rules. On perusal of the Form No. 15-J, it was baffling to note that it did not contain any receipt number, which is always allotted at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is in appeal before us. The ld AR of the assessee has submitted that the assessee is running a transport agency in the name of M/s Sikar Ludhiyana Roadlines at Sikar Road, VKI, Jaipur. The nature of business activity undertaken by the assessee as under:- (a) Arrange trucks from open market (mostly individual truck owners) for customers who require transportation services for their goods; (b) Settle the freight amount between the customers and truck owners and; (c) Issue Goods receipt (G.R.) for the goods transported. (d) In consideration of this service rendered by him, assessee charges commission from the customers. (e) In case, where the G.R. is- "freight paid", the payment of advance amount is made directly to the truck driver/owner of the vehicle by the customer/consignor. And, in case, where the G.R. is-"freight to pay", the freight/advance is collected by the truck owners from the consignee at the time of delivery of goods and balance amount, if any, is received by the truck owners on presenting the delivery receipts to the consignor. (f) Thereafter, the assessee collects his commission from the truck owner. Therefore, from a perusal of the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I from the truck owners, therefore, any payment made to the truck drivers/owner is not liable to be deducted tax at source. Therefore, there is no violation of Section 40(a)(ia) of the Act. These evidences were submitted before the Assessing Officer, who rejected the assessee's claim on the ground that they were not submitted on 30/06/2008 in the prescribed Form 15J. Further the assessee had also submitted Form No. 15-I during the course of assessment proceedings before the Assessing Officer, for which he relied on the decision of Hon'ble ITAT, Jaipur Bench, Jaipur in the case of Shri Ashok Kumar Jain, Jaipur Vs ITO, Tonk, Rajasthan in ITA No. 1018/JP/2010 wherein it was held that submission of Form No. 15-J by the parties, the borrower is not liable to deduct tax at source. Therefore, order of the ld CIT(A) is deserved to be deleted. Further he relied on the decision of Hon'ble ITAT, Mumbai Bench "E" decision in the case of M/s Travels and Shipping Pvt. Ltd, Vs. ITO in ITA No. 3854/Mum/2011 wherein it has been held that the same is recovered from its client on payment on actual basis, such payments made on their behalf has neither been debited nor claimed as expenses in the profit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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