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TMI Blog2013 (11) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... irected the AO to recompute the disallowance accordingly – Decided in favor or Revenue, partly. - ITA No 2280/Kol/2010 - - - Dated:- 15-3-2013 - P K Bansal And Shri Mahavir Singh, JJ. For the Appellant : Shri K N Jana, JCIT, Sr. DR For the Respondent : Shri Arvind Agarwal, Adv. ORDER:- Per: Bench: This appeal by revenue is arising out of order of CIT(A), Asansol in Appeal No. 182/CIT(A)/Asl/W-3(1)/Asl/09-10 dated 25.10.2010. Assessment was framed by ITO, Ward-3(1), Asansol u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2007-08 vide his order dated 31.12.2009. 2. The first issue in this appeal of Revenue is against the order of CIT(A) deleting disallowance made by Assessing Officer by invoking provisions of section 40(a)(ia) of the Act in respect of transport charges paid without deducting tax. For this, Revenue has raised following Ground No. 1:- Whether ld. CIT(A), Asansol was justified in deleting the addition by A.O. u/s. 40(a)(ia) of the I.T. Act, 1961 in view of the facts and circumstances of the case and material on record . 3. We have heard rival contentions and gone through facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes, the provisions of section 194C are clearly attracted. In such a situation, i.e. when labour hired by the assessee through CDLB is considered to be in assessee s employment, the payments made to CDLB cannot be treated as payments for any work, but nevertheless these payments could still be covered by the provisions of section 194C because these are payments made for supply of labour which are specifically covered by section 194C(1). CDLB is an agent of the stevedores like the assessee in the sense that the labour is recruited by the assessee through CDLB, but when this fact does not affect the nature of payment by the assessee to the CDLB which is admittedly in the nature of payment for supply of labour. The reasoning adopted by the Commissioner (Appeals), though somewhat impressive at first glance, is fallacious. There is no cause and effect relationship between workers assigned by the CDLB having employer workman relationship with the assessee, and the payments being made by the assessee to CDLB being not in the nature of payment for supply of labour . 4. Since the facts and circumstances are exactly identical, what was before us in Kamal Mukhjerjee Co. (Shipping) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties and after going through the aforesaid provision we find that the Supreme Court by those interim orders has no doubt stayed the operation of the order of the Division Bench of this court by directing the parties to maintain status quo and at the same time, even restrained the State from inducting third parties on the lands which were the subject-matters before the Apex Court. Such interim order is binding upon the parties to the proceedings but the law is equally settled that by mere passing of an interim order staying the operation of a judgment with certain further conditions, the existence of the said judgment is not wiped out and at the same time, for such interim orders inter parties, the authority of a decision as a precedent is never undermined. Unless a decision is set aside by the Superior Court, the said decision remains binding as a precedent though may not be binding upon the parties to the proceedings where the Superior Court has granted interim order. Moreover, once a provision has been declared ultra vires the Constitution of India, the State cannot invoke the said ultra vires proceeding against the citizens of the country simply because an interim order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of Shree Chamund Mopeds Ltd. (supra), we are of the view that the decision of the special bench of this tribunal in the case of Merilyn Shipping Transports (supra) still holds ground and accordingly, TDS provisions will apply, for the purpose of invocation of the provisions of section 40(a)(ia) of the Act, only on the amounts remained payable at the end of financial year and not on the paid amounts. Hence, we direct the AO to recompute the disallowance accordingly. Appeal of assessee is partly allowed for statistical purposes. 8. The next issue in this appeal of Revenue is against the order of CIT(Appeals) deleting the addition being balance credit amount of Rs.1,18,419/- out of total sundry creditors of Rs.3,96,280/-. For this, Revenue has raised the following Ground No. 2:- Whether ld. CIT(A), Asl. was justified in deleting the addition made by A.O. on account of liability as sundry creditor to the tune of Rs.3,96,280/- in balance sheet as on 31.03.2009 in view of the facts and circumstances of the case and material on record . However, in the ground, the amount disallowed is mentioned at Rs.3,96,280/- and the disallowance is restricted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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