Pr Commissioner Of Income Tax I Ludhiana v. Baldev Singh Prop
!!"#$#%& Pr. Commissioner of Income TaxI, Ludhiana .......Appellant versus Baldev Singh, Proprietor of M/s Nankana Sahib Road Lines, G.T.Road, Ludhiana.
.....Respondent & '(
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Present:
Mr. Rajesh Katoch, Advocate, for the appellant. Mr. S.K.Mukhi, Advocate, for the respondent.
**** )*+ , ) This is an appeal against the order of the Income Tax Appellate Tribunal allowing the respondent's appeal on the ground that the Assessing Officer wrongly assumed jurisdiction under section 147 of the Income Tax Act, 1961. The matter pertains to the assessment order 200809.
2.
According to the appellant, the following substantial question of law arises:
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3.
The Assessing Officer passed an order under section 144 read with section 147 of the Act. He held that the freight payment of about 1.88 crores from 01.04.2007 to 31.03.2008 to the truck owners without deduction of tax at source was not allowable as a business expenditure. The amount was, therefore, disallowed under section 40(a)(ia) for noncompliance of the provisions of section 194(c) and added back the same to the assessee's income. The order of the Assessing Officer records that the respondent derives income by providing transport services to various concerns. The Tribunal referred to the original assessment order. It is important to note that the original assessment order was under section 143(3). Paragraph3 of the original assessment order reads as under: $ !
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> 4.
It is clear, therefore, that the Assessing Officer raised a specific query regarding the nature of the assessee's business and the same was answered in writing by the assessee. The nature of the transaction was spelt out in detail. On the basis thereof the assessee's contention that he was merely a commission agent was obviously accepted. The original assessment order proceeded on that basis. The subsequent proceedings for reopening were held to be on change of opinion. There is also held that there was no new information or material. 5.
Mr. Katoch also merely sought to analyze the evidence that was already on record. The fact that in other cases the assessee had not succeeded would not make a difference. It is necessary in each case to see whether the transaction was on principle to principle basis or merely as an agent. The reasons for reopening are only that the assessee had shown payment amounting to 1.18 crores on account of freight paid to the truck owners for which the assessee had not supplied any details. It was, therefore, presumed that the assessee was liable to deduct tax at source under section 194(c)(ii) which applies to the case of sub contractors.
6.
As we noted earlier the details in respect of transactions were called for by the Assessing Officer and the assessee furnished the same. On the basis thereof the Assessing Officer accepted the return in this respect. The Tribunal on this basis and after following the judgments of Delhi High Court in
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# $ "% and & '#( )(#*$ rightly allowed the appeal on the ground that the Assessing Officer was not entitled to assume jurisdiction under section 147 of the Act in the absence of any new information or material. We are unable to state that the finding is perverse or irrational. 7.
The appeal is accordingly dismissed.
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) *) ravinder Whether speaking/reasoned √ Yes/No Whether Reportable:
Yes/No√