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TMI Blog2013 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... 40(a)(ia) - TDS not deducted - Tribunal held A.O. failed to establish how Section 40(a)(ia) is applicable therefore deleted disallowance - Held that:- AO could not point out any subcontractor in whose case the charges were made in excess on an individual transaction - assessee had produced copy of the accounts of carting paid - On the basis of such document, he had from the outset contended with the Assessing Officer that no individual payment exceeded Rs.20,000/- at a time nor the total to an individual pay exceeded Rs. 50,000/- in a year. The Assessing Officer, without discarding such stand of the assessee, proceeded to make disallowance under Section 40(a)(ia) of the Act on the premise that tax was not deducted at source - Decided agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged his burden to establish the identity, creditworthiness and genuineness of the gift. 3. These observations and conclusions of CIT(A) were confirmed by the Tribunal in the impugned judgement. The Tribunal observed as under: "8. We have heard learned representatives of the parties and perused the records. On consideration of facts of the case and contention of the Ld. DR it has been noticed that the only grievance of Revenue is that the CIT(A) has deleted the addition without providing opportunity of hearing to the AO and not calling for the remand report from the A.O. The scheme of the Act requires that assessment order of the AO should be a speaking order containing all detailed facts supporting the reasons which are mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO wants to take action in accordance with the provisions of section 68 of the Act. The CIT(A) found that the assessee has furnished sufficient material to satisfy all the conditions laid down in section 68 of the Act before deleting the addition. The facts recorded by the CIT(A) after examining and verifying the relevant records, are required to be taken as correct facts as no contrary material to the facts used by CIT(A) has been pointed out by Revenue. Rule 10 of (Income Tax Appellate Tribunals) Rules,1963 provides where the fact which cannot be borne out by or is contrary as alleged it shall be stated clearly and consciously and supported by CIT(A) has not been challenged by Revenue by filing such affidavit. In addition to above it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- in each transaction or in whose case charges consolidately paid Rs. 50,000/- and above during the previous year relevant to assessment year. Therefore, in absence of these findings, making disallowance of entire transport charges u/s. 40(a)(ia) is not correct." 7. Revenue carried such matter in appeal before the Tribunal. The Tribunal, by the impugned judgement, rejected the revenue's appeal making following observations: "11. We heard the Learned Representatives of the parties and perused the records. We find that the issue under consideration is in respect of appreciation of facts. The AO disallowed the claim of the assessee u/s. 40(a)(ia) on the ground that the assessee did not deduct tax at source. On perusal of the order of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing: "As per the profit and loss account, you have paid from the charges of Rs. 109.68 lacs. On this amount we have not deducted TDS. Therefore, an amount of Rs. 109.68 lacs required to be added to or total income." 9. In this respect, the assessee gave its detailed explanation as under: "2. I would like to inform your goodself that during the year under assessment, I was engaged in the business of Transportation of Lignite from Panondhro (Kutch) to destination where the lignite was to be transported. We would like to inform your goodself that we do not own any truck for transportation purpose. We give the carting contract to the persons (Truck Drivers/Owners) available at site on terms and conditions decided there itself based on we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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