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TMI Blog2013 (11) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... TDS u/s 194C for less than and more than Rs.20,000/- is clear but what was the actual position on facts has not been addressed. It is seen that the assessee has relied upon the position of 2008-09 assessment year wherein no such addition has been made the argument of the DR that evidences filed may not have been insufficient and any way merely because the AO has not addressed the aspect and this year it has been addressed in detail and thus the argument that each year is a separate year has merit however consistency on the issue to our minds also has equal merit in the eyes of law. No specific findings has been given by the CIT(A) on this assertions. The position in law is clear but the position on fact has to be demonstrated on the ground level. Accordingly since the issue of freight payments would be a recurring issue, the past position needs to be ascertained. Accordingly on account of these factual discrepancies/deficiencies on which the Ld. CIT(A) has not come to any finding - Decided in favour Revenue - matter remanded back. - I.T.A .No.-5090/Del/2011 - - - Dated:- 24-5-2013 - Smt. Diva singh And Shri J. S. Reddy,JJ. For the Appellant : Sh. Satpal Singh, Sr. DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid account. 2.1. On a perusal of the 'Freight Account Ledger', it was observed that the assessee had charged substantial amounts of receipts on this account and the said ledger account had been credited on a daily basis. It was seen that on debit side of the account, the assessee had shown as 'cash paid' on various dates and the Freight Account was having a continuous balance and only at the end of the financial year the assessee had passed one single entry as 'cash paid' and the balance was shown as Nil as on 31.03.2005. The total Credit and Debit summation of said Freight Account was as under :- "Total Credit Summation Rs.1,57,59,933/- Total Debit Summation Rs.1,57,59,933/-" 2.2. The assessee was further required to address the position in respect of the said account. On 12.11.2007, Sh. Subhash Chand Dua, (the Director of the assessee company presented) appeared along with copy of the Freight Account. The AO again vide an order sheet entry required the supporting vouchers in support of the entries made which were not produced. The case accordingly was adjourned to the next date. On the said date a letter was filed on behalf of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To Freight A/c Cr.10,000/- To Mazdoori A/c Cr. 422/- To Commission A/c Cr. 3,575/- To party A/c (Abdul Haq) Cr.45,580/- 2.5. It was also stated that the "bilti" is returned to the sender of goods as an evidence of payment and this was done as per normal practice. As an illustration, reference was made to the position of Chartered Accountants when they go for outstation bank audit. The bill of air travels and hotels etc., it was submitted are submitted in original to the bank in order to claim reimbursement of the expense as such forwarding of the original "bilti" as an evidence of payment on behalf of the sender of the vegetables was stated to be a normal practice. 5 I.T.A .No.-5090/Del/2011 3. However, the AO was not convinced with the explanation offered for the following reasons:- "(i) He disbelieved the arguments of the assessee that the freight was paid on behalf of principal/supplier of goods since there was no confirmation from such parties. (ii) He also felt that since the freight receipts as well as payments are forming part of the Sale Advice Documents ((Bikri), it should have been made part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made prior to the year under consideration. It was further submitted that the nature of the payment has been addressed in detail in the letter dated 12.12.2007 addressed to the AO. It is seen that this letter has been reproduced in the impugned order as well as in the assessment order. The CIT(A) further records that he had called for the assessment records for the earlier years and gone through the same. This finding is recorded at para 3.8 of the impugned order. Apart from that it is seen that he also called for an information from the Agriculture Produce Market Committee (APMC), Azadpur, Delhi-110033 u/s 133(6) of the Act requiring the said Committee to clarify whether the assessee company was registered as a "licensed commission agent" and if so the details thereof were sought. Referring to the reply received from APMC vide letter No.-APMC/ADC/312 dated 18.05.2011, the CIT(A) observed that the Committee informed that the assessee was having 'B' category License No.-B-573 (i.e. commission agent) and had paid market fee charged @ 1% of the total sale value and deposited the amount of Rs.7,00,262/- on account of market fee. 4.1. On a consideration of these facts and evidences, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no need to deduct tax by invoking section 194C of the I.T. Act. The said argument was further assailed on the ground that the figure of Rs.14,091/- had been taken by the AO from schedule 'G' to the Tax Audit Report which refers only to the amounts wherein TDS had been deposited belatedly. It was submitted that the TDS amount deducted by the assessee and deposited within time was much higher and these details were never asked for by the AO and wrong conclusions had been drawn. 4.3. Reliance before the CIT(A) was also placed upon the assessment order of the subsequent assessment year i.e 2008-09 which was stated to have been passed on 29.10.2010. The said order it was stated was a scrutiny order u/s 143(3) wherein the AO has not made any addition on account of freight payment and it also gives a clear finding that the assessee is a commission agent. 5. Considering these facts and arguments, the CIT(A) came to the following conclusions:- "3.19.In the light of the above discussion, I have no hesitation in holding that the assessee has been following a consistent practice of paying freight on behalf of its principals. Freight collected from the vegetables vendors is neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditions have ever been made in the past and the assessee currently as a company and earlier as a partnership firm has been engaged in the same business conducted in a similar manner and it is a matter of trade practice that the freight payment is adjusted from the sale proceeds of the vegetables sold on behalf of the sender of the vegetables and being a commission agent the assessee is only interested in the commission and freight does not form a part of the assessee's expenses. Consequently it is not routed through the P L account. 8. We have heard the rival submissions and perused the material available on record. It is seen that the claim of the assessee has all along been that the freight payment is made on behalf of the suppliers of the goods i.e vegetables sellers who sent goods from the different parts of the country. It has also been stated that earlier the assessee was a partnership firm upto the year ending March 2001 and thereafter it converted into a company but the nature of the business has remained the same. It is seen that the CIT(A) has sought information u/s 133(6) from the AMPC, Azadpur on 06.05.2011 in response thereto he has received the following response. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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