Ii.whether On Facts And In Law The Tribunal Is Rightin Not Considering The Decision Of Hon’blerajasthan High Court In The Case Of Chhogmalchiranji Lal v. Cit (2002) 257 Itr 51 (Raj),Relied Upon By The Cit (Appeals), Wherein, It Hasbeen Held That If Law Provides For Doing A Thingin A Particular Manner, Then It Has

IN THE HIGH COURT OF KARNATAKADHARWAD BENCH DATED THIS THE 13 DAY OF JANUARY 2017 PRESENT THE HON’BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR I.T.A. NO. 100026/2015 BETWEEN : 1.THE COMMISSIONER OF INCOME TAX, DR. B.R.AMBEDKAR ROAD,BELAGAVI.BELAGAVI. 2.THE INCOME TAX OFFICER, WARD-2(1), BELAGAVI. ... APPELLANTS (BY SRI Y V RAVIRAJ, ADVOCATE) AND : SHRIDHAR SHANTINATH PATRAVALI,PROPRIETOR : ARIHANT TRANSPORT,NO.1012/A, 9 CROSS,BHAGYA NAGAR, BELAGAVI.PAN: . ... RESPONDENT (BY SRIYUTHS ASHOK A. KULKARNI & H. R.KAMBIYAVAR,ADVOCATES) THIS ITA IS FILED U/SEC.260A OF THE INCOME-TAXACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIALQUESTIONS OF LAW STATED ABOVE; ALLOW THE APPEAL ANDSET ASIDE THE ORDERS PASSED BY THE INCOME TAXAPPELLATE TRIBUNAL, PANAJI BENCH, PANAJI INITA.NO.399/PNJ/2013, DATED:19.11.2014 AND CONFIRM THE ORDER PASSED BY THE INCOME TAX OFFICER, WARD-2(1),BELAGAVI. THIS APPEAL COMING ON FOR PRELIMINARY HEARINGTHIS DAY, RAGHVENDRA S. CHAUHAN J., DELIVERED THEFOLLOWING: JUDGMENT Aggrieved by the order dated 19.11.2014 passed by theIncome Tax Appellate Tribunal, Panaji Bench, Panaji,whereby the learned Tribunal has set aside the order of theCommissioner of Income Tax (Appeals) (‘CIT’, for short) andhas upheld the disallowance claimed by the assessee, theRevenue has approached this Court. 2.The Revenue has raised the following substantialquestions of law before this Court : i.Whether on facts and in law the Tribunal is rightin ignoring the provisions of second and thirdprovisos to section 194C(3), as per which theassessee respondent was under obligation tofurnish particulars of the declaration filed by thesub-contractors in Form No.15-I within due datei.e., 30.06.2008, in the manner prescribed i.e.,Form No. 15J, to the prescribed authority andfailure to do so, attracts violation of provisions ofSection 194C(3) viz., disallowance under Section40(a)(ia)? ii.Whether on facts and in law the Tribunal is rightin not considering the decision of Hon’bleRajasthan High Court in the case of ChhogmalChiranji Lal vs. CIT (2002) 257 ITR 51 (Raj),relied upon by the CIT (Appeals), wherein, it hasbeen held that if law provides for doing a thingin a particular manner, then it has to be done inthat manner alone? 3.Briefly the facts of the case are that the assessee,Mr. Shridhar S. Patravali, the Proprietor of ArihantTransport, is engaged in the business of hiring/plying oftrucks for transporting the goods. For the assessment year2008-09, the assessment was completed under Section143(3) of the Income Tax Act, 1961 (‘the Act’, for short).However, subsequently, the Commissioner of Income Taxinitiated the proceedings against the assessee under Section263 of the Act, ostensibly on the ground that the assessmentorder passed by the Assessing Officer was found to beerroneous as well as prejudicial in the interest of Revenue.Since the assessee had paid truck hire charges ofRs.30,35,515/- to one Mr. Shantinath B. Patravali, and hadalso paid Rs.17,80,639/- to Smt. Savita S. Patravali, the assessee was required to submit Form No.15J before theappropriate Authority. However, as the assessee had failedto submit the said Forms before the appropriate Authority, itwas felt that the payment made to these two persons was inviolation of Section 194C(3) of the Act. 4.After the issuance of notice, the assessment wascompleted under Section 143(3) read with Section 263 of theAct by determining the revised income at Rs.57,56,290/- ,along with other additions, an addition of Rs.48,61,154/-was also made to the total income of the assessee. The latteramount is the amount of disallowance under Section40(a)(ia) of the Act. By order dated 21.01.2013, theAssessing Authority observed that since the assessee hadfailed to file the Form No.15J, the requirement of Section194C(3) of the Act had not been fulfilled. Therefore, the saidamount was disallowed under Section 40(a)(ia) of the Act. 4.After the issuance of notice, the assessment wascompleted under Section 143(3) read with Section 263 of theAct by determining the revised income at Rs.57,56,290/- ,along with other additions, an addition of Rs.48,61,154/-was also made to the total income of the assessee. The latteramount is the amount of disallowance under Section40(a)(ia) of the Act. By order dated 21.01.2013, theAssessing Authority observed that since the assessee hadfailed to file the Form No.15J, the requirement of Section194C(3) of the Act had not been fulfilled. Therefore, the saidamount was disallowed under Section 40(a)(ia) of the Act. 5.Since the assessee was aggrieved by the assessingorder, dated 21.01.2013, he had filed an Appeal before theCAT. By order dated 09.10.2013, the learned CAT dismissedthe appeal filed by the assessee. 6.Therefore, the assessee further filed an appealbefore the learned Tribunal. By the impugned order, dated19.11.2014, the learned Tribunal has permitted thedisallowance as claimed by the assessee. Hence, the presentappeal before this Court. 7.The learned counsel for the Revenue,Mr. Y. V. Raviraj has pleaded that since Section 194C(3) ofthe Act read with Rule 29D of the Income Tax Rules, 1962,prescribes the procedure and insist that Form No.15J has tobe furnished before the appropriate Authority, the non-furnishing of the said Form before the authorised personwould not permit the assessee to claim the disallowance ofthe amount paid by him to a sub-contractor. Since in thepresent case the assessee had admittedly not submittedForm No. 15J before the concerned Authority, the learnedTribunal was unjustified in upholding the disallowances.Therefore, the two substantial questions of law, mentionedabove, clearly arise for consideration in the present appeal. 8.However, on the other hand, Mr. Ashok A.Kulkarni, the learned counsel for the assessee, submits that according to Section 292B of the Act, no return of income,assessment would be invalid merely because of any mistakein such return of income or assessment as long as insubstance and in effect the return is in conformity with oraccording to the intent and purpose of this Act. Admittedly,the assessee had submitted Form No.15J prior to the cut-offdate of 30.06.2008. However, on 09.05.2008, inadvertently,the said Form was submitted, in Bangalore, at an addresswhich was opposite of the Office of Income Tax, where theForm actually needed to be submitted. Thus, merely anirregularity had been committed by the assessee and that tooinadvertently. 9.Secondly, when the initial assessment was made byorder dated 24.12.2010, the Assessing Officer had noted thisfact and had even mentioned that the copies of Form No.15Jhave been submitted by the assessee and are being kept inthe record. Therefore, merely because an inadvertentmistake had cropped up, the Revenue is not justified inclaiming that the essential requirements of Section 194C(3)of the Act have not been fulfilled by the assessee. Relying onthe case of Commissioner of Income Tax v. Gurvinder Transport (Tax Appeal No.345 of 2013 decided by theHon’ble High Court of Gujarat on 01.05.2013), the learnedcounsel pleads that in a similar case, arising out of identicalfacts, the Hon’ble Gujarat High Court opined that theTribunal had committed an error in holding thatdisallowance under Section 40(a)(ia) of the Act was notjustified. Therefore, the learned Tribunal has rightly upheldthe disallowance. Hence, the learned counsel submits thatno substantial questions of law arise in the present case,which needs to be answered by this Court. 10.Heard the learned counsel for the parties andperused the impugned order. Transport (Tax Appeal No.345 of 2013 decided by theHon’ble High Court of Gujarat on 01.05.2013), the learnedcounsel pleads that in a similar case, arising out of identicalfacts, the Hon’ble Gujarat High Court opined that theTribunal had committed an error in holding thatdisallowance under Section 40(a)(ia) of the Act was notjustified. Therefore, the learned Tribunal has rightly upheldthe disallowance. Hence, the learned counsel submits thatno substantial questions of law arise in the present case,which needs to be answered by this Court. 10.Heard the learned counsel for the parties andperused the impugned order. 11.A bare perusal of the impugned order clearlyreveals that the assessee had paid the truck hire chargesboth to Mr. Shantinath Patravali and Smt. Savita Patravali.As mentioned above, from both these sub-contractors he hadreceived Form No.15-I. The assessee was required to submitthe Form No.15J before the Commissioner of Income Tax(TDS) at Bangalore. However, as the Office of Income Tax,and the Office of Commissioner of Income Tax (TDS) were opposite each other, on the same floor of the building,inadvertently the Form No.15J was submitted before theIncome Tax Officer, instead of Commissioner of Income Tax(TDS). Thus, a human error had occurred in submitting theForm No.15J before the concerned Authority. 12.The fact that the Form No.15J had beensubmitted before the incorrect Authority, was noticed evenby the Assessing Officer in the Assessment Order dated24.12.2010. According to the said order, copies of FormNo.15J had been received by him, and were kept in therecord. Therefore, merely a human error had occurred.Hence, clearly the case is covered by the provisions ofSection 292B of the Act. 13.Moreover, in the impugned order passed by thelearned Tribunal, the learned Tribunal has noticed thatunder Section 40(a)(ia) of the Act, payment made towardsinterest, commission or brokerage, etc., are to be disallowedwhile computing the total income of the assessee under thehead “Profits and gains of business or profession”, where thetax required to be deducted is not deducted or whereafter such deduction, the same has not been paid on or beforedue date of filing of the Income Tax return. Thus, theaddition under Section 40(a)(ia) of the Act can be made onlyif there is default in deducting tax at source under Section194C(3) of the Act. However, the assessee is not required todeduct the tax if the sub-contractors produces the necessarydeclaration in the prescribed Form and the sub-contractordoes not own more than two goods carriages during theprevious year. 14.Admittedly, the sub-contractors in the presentcase did not own more than two goods carriages during theprevious year. Thus, the assessee was not required todeduct the tax at source. Merely because the Form No.15Jwas not filed before the concerned Authority, that too due tohuman mistake, the disallowance could not be denied to theassessee. The present case is clearly covered by the decisionof the High Court of Gujarat in the case of GurvinderTransport (supra). 15.Since cogent and convincing reasons have beengiven by the learned Tribunal, the substantial questions of law canvassed before this Court do not arise in the presentcase for our consideration. For the reasons stated above,this Court does not find any merit in the present appeal; itis, hereby, dismissed. Sd/-JUDGE Sd/-JUDGE hnm