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TMI Blog2012 (11) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... of stock and, therefore, is by way of transportation shortage, thus no question of application of sec. 40(a)(ia) - in favour of assessee. Transportation charges of Rs. 3,07,98,732/- Held that:- Even though the privity of contract may be between the assessee (whose obligation it is for the transportation of goods) and the transporter, rather, irrespective of whether the contract is between the assessee and the transporter or the principal and the transporter - the payment in either case being only in pursuance to a contract, the liability u/s 194C being on the person responsible for making the payment and not on the one who may finally bear it, so that it (the payment) could be on account of a different person, as the assessee's principal in the instant case, the disqualification and the consequential disallowance under section 40(a)(ia) would apply only where the claim for expenditure is preferred in its respect by the assessee. The matter, therefore, as in the case of other expenses forming part of the assessee's appeal, is restored back, on identical terms and scope, to the file of the Assessing Officer - in favour of revenue for statistical purposes.. - IT APPEAL NOs. 852 AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Form 15-I by the individual transporters to the assessee-company, and of Form 15-J (an annual statement based on Form/s 15-I) by the assessee to the Revenue. As regards other charges, the issue has been restored back by the Tribunal for the other years (i.e., AYs 2006-07 and 2008-09), to examine if the impugned payments are in the nature of reimbursements, with the further direction that where so, no disallowance under section 40(a)(ia) would ensue. The same, it was prayed, be followed. 2.3 The ld. DR would, in response, submit that there is no question of the matter being considered as covered by the order by the Tribunal even though it is in the assessee's own case. As would be apparent therefrom, the only basis of the acceptance of the assessee's claim qua transportation charges in that case was the filing of Form 15-J by the assessee, so that no TDS on the said payment was in fact payable. In the instant case, on the other hand, the assessee's claim for filing Form 15-I or 15-J has been specifically contested and assailed by the AO (refer page 3 of the assessment order). With regard to the other payments also, it stands abundantly clarified that the privity of contract is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o go back to the Assessing Officer in view of the order by the Tribunal in the assessee's own case for assessment years 2006-07 and 2008-09 (supra). We do observe that the matter stands decided by the Revenue authorities on due examination of the assessee's records and explanations, with the Assessing Officer also submitting a remand report to the ld. CIT(A), and which stands considered by the latter. In fact, it is indeed surprising that the matter should continue to be disputed and unresolved even up to the second appellate stage, and that too from year to year. This is particularly so as the issue is essentially a simple matter, given that the accounting procedures and methods are well-settled, so that the entries passed in the books of account should ordinarily remove the matter beyond the realm of any doubt. When a payment/s is made, as claimed, for and on behalf of another, the same would only, or at least ordinarily and in the normal course, stand to be debited to the account of the latter, as the same only would reflect the true state of affairs. There would thus be no scope for it being charged to the operating statement of the payer and, thus, being claimed as an expense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y third party, but only represents the deduction made by the principal on account of short delivery of stock and, therefore, is by way of transportation shortage. There is no question of application of sec. 40(a)(ia), and stands rightly deleted by the ld. CIT(A). We decide accordingly. 3.3 With regard to the former claim (i.e., for Rs. 307.99 lakhs), we are not at all impressed with the basis on which the first appellate authority has allowed relief to the assessee. The findings by the Assessing Officer in this respect are definite and uncontroverted. When the transporters had not issued Form 15-I to the assessee, where is the question of its filing Form 15-J to the Department, of which the former are but an integral part. And, even if filed, would be only a false claim, leading to the charge of perjury. Also, as found by the Assessing Officer, and again to no rebuttal, that Form 15J, i.e., treating it as having been filed, is not with the concerned authority and unaccompanied by Form 15-I, i.e., the declarations for non-deduction of tax at source from the individual transporters, on the basis of which only the assessee can claim to be free from the obligation of deduction of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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