TMI Blog2015 (10) TMI 2554X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has produced the evidence regarding submission of Form No. 15-J before the lower authority, in which some fault had been found on the ground that no signature, number of receipts has been provided by the Range office, is not any fault on part of the assessee. The assessee has furnished the Form No. 15-J in the office of the Commissioner. Various Courts also even considered and held justified Form No. 15-J before the Assessing Officer at the time of assessment proceedings. Therefore, we reverse the order of the ld CIT(A). Accordingly, this appeal is allowed in favour of assessee - ITA No. 62/JP/2012 - - - Dated:- 30-10-2015 - SHRI R.P. TOLANI, JM AND SHRI T.R. MEENA, AM For The Assessee : Shri Manish Agarwal (CA) For The Revenue : Shri Rajendra Singh (JCIT) ORDER PER: T.R. MEENA, AM This is an appeal filed by the appellant against the order dated 29/11/2011 passed by the learned CIT(A)-II, Jaipur for A.Y. 2008-09. The respective grounds of appeal raised by the appellant are as under:- 1 That the ld. Assessing Officer grossly erred in law and in facts in making addition of ₹ 87,97,747/- under Section 40(a)(ia) of the Income Tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be for which after making TDS U/s 194C, the awarder/consignor party issued TDS certificates in the name of assessee. In nutshell, the payments made by the assessee to truck owners were covered within meaning of Sub Contract making the assessee liable to make TDS U/s 194C(2) of the Act. It is further mentioned by the Assessing Officer that gross receipts of assessee as per TDS certificates in A.Y. 2007-08 were also more than the limit prescribed for carrying out audit U/s 44AB in just preceding year as required U/s 194C(2) of the Act. During the A.Y. 2007-08 his gross receipts as per TDS certificates was ₹ 1,12,21,213/-. During the year under consideration total receipts of assessee, as per GRs, were ₹ 1,49,94,496/-, but the assessee failed to get his books of accounts audited U/s 44AB, therefore, the ld Assessing Officer initiated penalty proceeding U/s 271B of the Act. During the year under consideration, the supplier of goods had made TDS from the transport agent and had also issued TDS certificate in the name of assessee. As per Assessing Officer, it is clear that contract between supplier of goods and transport agent exist, which is also evidenced from the TDS cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/06/2008. The appellant having failed to do so, therefore, the benefit of Rule 29D was not available to him. The Assessing Officer held that the form submitted after the specified date was not valid. The appellant in the present case had failed to file these documents before the ld CIT(TDS). The ld Assessing Officer placed reliance on the decision of Hon ble Jurisdictional High Court in the case of Chhogmal Chiranji Lal Vs. CIT 257 ITR 51 wherein it was held that if the assessee had not obtained Form No. 15-H at the time of making payment or before the expiry of the financial year but actually obtained them on 01/4/1999, the assessee could not contend that there had only been a technical breach since that would amount to rendering the deeming clause in Section 201 redundant. The provisions of law could never be redundant and section 201 was required to be operated against the assessee and he had to be deemed to be assessee in default. Further GR was held to be a separate contract if goods were transported at one time. But if the goods were transported continuously, all the GRs relating to that period or quantity would have to be aggregated for the purpose of TDS. The A.O. held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as it has been forged with the sole intention of fraud and evading taxes. As per Section 194C, the assessee is a contractor, who had taken the contract of transportation of goods on behalf of his principals. It is immaterial that assessee has formal written contract between awardee and assessee with sub-contractor (owners of the truck). The assessee had made payment exceeding ₹ 50,000/- during the year under consideration, therefore, he is liable to be deducted TDS U/s 194C(2) of the Act. He further given example of truck number HR-47A-9435 has continuously plied between 07/02/2007 to 26/03/2008 on 17 occasions. The truck No. HR-47A-0765 has continuously plied between 05/09/2007 to 28/12/2007 on 8 occasions. The truck number RJ-14-2G-2926 has continuously plied between 15/05/2007 to 29/03/2008 on 9 occasions. The truck No. RJ-14-GA-2603 has continuously plied between 16/01/2008 to 01/09/2008 on 14 occasions. The truck No. RJ-23G-1444 has continuously plied between 05/08/2007 to 24/03/2008 on 15 occasions. The truck number RJ-23G- 1512 has continuously plied between 15/12/2007 to 17/02/2008 on 13 occasions. On the basis of above, he held that the assessee had continuous cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct tax at source in the name of assessee and accordingly, issue TDS certificates in name of assessee. With effect of deduction of tax at source, the payment made to truck owners falls short, and such difference amount is paid by assessee to the truck owners out of his own pocket and such amount is recorded as liability in the account of respective truck owner. Upon receiving refund from the department of the tax deducted at source, the accounts of respective truck owners are settled. There was no contract of carriage of goods between the assessee and the truck owners/drivers. The ld AR further argued that the assessee is only acting as a facilitator or intermediary between the customer and truck owner and for his service rendered i.e. arranging truck from the market and issuing GR in his transport agency name, received commission income. The assessee neither received direct payment from the customer nor he made payment to the truck owners. The payment by the customer made directly to the truck owners. But it is undisputed fact that the TDS was deducted on payment of hiring charges in the name of assessee w.e.f. deduction of tax at source, the payment made to the truck o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TTJ 240 (Ctk). (3) ACIT Vs. Seaward Exports (P) Ltd. 150 TTJ 13 (JP B )(UO). (4) CIT Vs Cargo Linkers (2009) 179 Taxman 151 (Delhi). (5) CIT Vs. Hardarshan Singh (2013) 350 ITR 427. (6) ITO Vs. Harjeet Singh (ITAT Delhi Bench) ITA No. 6492/Del/2012. (7) M/s Travels and Shipping Pvt. Ltd. Vs. ITO in ITA No. 3854/Mum/2011. (8) Kuldeep Kumar Sharma (Prop. M/s KS Freight Carrier) Vs ITO ITA No. 5672/Del/10. Therefore, he prayed to delete the addition confirmed by the ld CIT(A). 5. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the material available on the record. After considering the order of ld Assessing Officer and ld CIT(A), it is found that the assessee is a transporter but did not own any truck but arrange the truck from the market. The customer is generally made contract to transporter for arranging the trucks for transportation of goods. In the present case, the assessee is an intermediary and conduit to make available the trucks from the market and issue GR in his own name but only charged commission for making builty. It is a fact that the custom ..... 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