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TMI Blog2012 (5) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, that too on his own risks and perils and also where the out sourced transporters are not binding the assessee’s customers. - Decided in favor of assessee. - ITA No.2336/Mum/2011 - - - Dated:- 13-4-2012 - Shri G.E.Veerabhadrappa, Shri Vivek Varma, JJ. Appellant by : Shri Kishore K.Poddar Respondent by : Shri Paven Ved O R D E R Per Vivek Varma, JM : The appeal is against the order passed by CIT(A) 33, Mumbai, dated 21.02.2011, wherein the CIT(A) has sustained the addition of ₹ 2,74,91,238/- on account of non deduction of TDS u/s 40(a)(ia) of the Income Tax Act. 2. The facts as seen from the orders of the revenue authorities and submitted before us are that the assessee being an individual has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement referred to above. However, out of the total amount of Rs. 2,80,05,170/- paid to the sub contractors mentioned the details filed were paid more than Rs. 50,000/- in a year and aggregate payment is Rs. 2,41,46,740/-. These 103 sub contractors were continuously transporting goods for and behalf of assessee as can be seen from the bill numbers issued by the subcontractors to the assessee. It has been clarified by the CBDT in Circular No. 715 that if the goods are transported continuously in pursuance of a contract for a specific period or quantity, each GR will not be separate contact and all GRs relating to that period or quantity will be aggregated for the purpose of TDS. Since these 103 subcontractors have transported goods r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reater than Rs. 20,000/- but less than Rs. 50,000/- to sub-contractors in a year amount to Rs. 7,08,105/- and on which tax was required to be deducted. Since as admitted, no tax has been deducted on this amount of Rs. 7,08,105/-, the same is not allowable as a deduction under clause (ia) of clause (a) of Sec.40 of the I.T. Act, 1961. Assessee has contended that loading and unloading charges of Rs. 17,71,013/- included in the bills by the sub contractors and reimbursed by the principals are not liable for deduction of tax at source. The contention of the assessee is not acceptable for the reason assessee has been charged by the sub contractors with the loading and unloading charges in their bills issued to the assessee and in turn assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -------------------- Accordingly, Rs. 2,74,91,238/- are added back out of Motor fleet Hire Charges on account of non-deduction of TDS under clause (ia) of clause(a) to section 40 of the I.T. Act, 1961.. 4. The CIT(A) upheld the view of the AO and sustained the addition on account of non deduction of TDS at Rs. 2,74,91,238/- u/s 40(a)(ia). 5. The assessee, being aggrieved with the order of the revenue authorities is now before the us. 6. Before us, the AR, appearing on behalf of the Assessee submitted that the assessee has been running lorries, trucks and container to and from ports and other destinations on behalf and instructions of its customers at pre determined rates. He further submitted that there are times, when the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, should enter into a contract with a sub-contractor for carrying out the whole or any part of the work undertaken by the contractor. (c) The sub-contractor should carry out the whole or any part of the work undertaken by the contractor. (d) Payment should be made for carrying out the whole or any part of the work. 7. The AR has also placed reliance on the decision by Hon ble Cuttuck Bench of I.T.A.T in RR Carrying Corp. V/s ACIT ITA No. 179/Ctk/2009, reported in 126 TTJ 240, wherein on similar facts as that of the assessee, i.e. there was no contractor or sub-contractor relationship between assessee and other transporters and therefore assessee was not liable to deduct tax at source from the payments made to other transporters and, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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