2012 (11) TMI 796 - AT - Income Tax

Disallowance u/s 40a(ia) alleged that the appellant should have made deduction of TDS @ 2% as against 1% deducted by the appellant from freight payments Held that - Payment made by it to the truck operators was in the nature of sub contract and hence was rightly subjected to TDS @ 1% - assessee was required to deduct TDS at the rate of 1% only as in assessee s case the provisions of section 194C(2) are attracted - there is no violation of section 40a(ia) on the part of the assessee. This ground of the assessee is allowed. Disallowance on account of amount paid towards Crossing Bhada Secondary Freight u/s 40a(ia) alleged that no TDS has been deducted by the delivery agent to the trucks owners while making payment to them Held that - Full details/facts in respect of these two grounds are not on record - restore these issues to the file of the AO Disallowances u/s 40a(ia) on account of non-deduction of TDS on primary freight payment Held that - Payments related prior to 1s t October, 2004, are covered by the first proviso to section 194C(3) as it stood prior to substitution by the Finance (No.2) Act,2004 and were not therefore liable to deduction of tax at source - there is no violation of section 40a(ia) of the Act and therefore this ground of the assessee is also allowed

Issues Involved:
1. Disallowance under section 40a(ia) for TDS deduction rate.
2. Disallowance for Secondary Freight under section 40a(ia).
3. Disallowance for Previous Freight under section 40a(ia).
4. Enhancement of disallowance for Primary Freight under section 40a(ia).
5. Applicability of section 40a(ia) to amounts payable at year-end versus amounts already paid.

Issue-wise Detailed Analysis:

1. Disallowance under section 40a(ia) for TDS deduction rate:
The learned CIT(A) confirmed the disallowance of Rs.37,98,977/- under section 40a(ia), holding that the appellant should have deducted TDS at 2% instead of 1% from freight payments. The appellant argued that the payments to truck operators were sub-contracts, thus subject to a 1% TDS rate. The Tribunal previously restored this issue to the AO, who, after detailed inquiries, concluded that the truck owners were sub-contractors, making the 1% TDS rate applicable. The Tribunal allowed this ground, finding no violation of section 40a(ia).

2. Disallowance for Secondary Freight under section 40a(ia):
The learned CIT(A) disallowed Rs.32,21,551/- for Secondary Freight, stating that no TDS was deducted by the delivery agent when paying truck owners. The Tribunal noted that full details were not on record and restored the matter to the AO for fresh adjudication, requiring all necessary details to be brought on record.

3. Disallowance for Previous Freight under section 40a(ia):
The learned CIT(A) disallowed Rs.7,64,737/- for Previous Freight, as the required TDS was not deducted. Similar to the Secondary Freight issue, the Tribunal restored this matter to the AO for fresh adjudication due to incomplete details on record.

4. Enhancement of disallowance for Primary Freight under section 40a(ia):
The learned CIT(A) enhanced the disallowance by Rs.64,82,238/- for Primary Freight, arguing that the law was amended to require TDS for transport contracts exceeding Rs.20,000 per contract from 1-10-2004. The Tribunal found that the AO, after detailed inquiries, concluded that the payments were covered by the First Proviso to section 194C(3) as it stood before its substitution by the Finance Act, 2004, and were not liable for TDS. The Tribunal allowed this ground, finding no violation of section 40a(ia).

5. Applicability of section 40a(ia) to amounts payable at year-end versus amounts already paid:
The appellant argued that section 40a(ia) applies only to amounts payable at the year-end, not to payments already made. However, this ground was not pressed by the appellant's counsel during the hearing and was thus dismissed by the Tribunal.

Conclusion:
The appeal was partly allowed for statistical purposes, with the Tribunal restoring certain issues to the AO for fresh adjudication and allowing other grounds based on detailed inquiries and findings.

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