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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 ..... gainst 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 circumstances of the case. At the outset, it is seen that assessee has paid Dumper hire charges amounting to Rs.36,37,815/- to ten different parties. According to Assessing Officer, no TDS has been deducted on these payments, though these w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, following Smt. J. Rama's case of Hon'ble Karnataka High Court (supra), we have taken a decision dated 17.02.2012 of ITAT, Kolkata Bench in ITA No. 199/Kol/2010 in the case of DCIT, Circle-9 -vs.- Kamal Mukherjee & Co. (Shipping) (P.) Ltd., wherein it is held as under :- (From Head notes) .......Undoubtedly, these decisions do indicate that there is a workman employer relationship between the dock workers and the stevedores like assessee when they employ those workers, but be that as it may, the fact remains that the assessee has made payments to the CDLB for supply of labour, even when this labour may be treated as employed by the assessee for all practical purposes, the provisions of section 194C are clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer and reverse the order of CIT(Appeals). However, as regard to alternative arguments made by ld. counsel for the assessee regarding applicability of the decision of ITAT, Special Bench, Vishakhapatnam in the case of Merilyn Shipping & Transports Vs. Addl. CIT (Visakhapatnam) (SB) reported in (2012) 136 ITD 23 (SB), , wherein it is held that the disallowance will be restricted to the amount payable at the end of year and not on the amount already paid during the relevant year. Ld. counsel for the assessee before us stated that this payment was made within the due date and nothing remains payable and he relied on the decision of Special Bench of this Tribunal in the case of Merilyn Shipping & Transports Vs. Addl. CIT (V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned." 6. Even, Hon'ble Supreme Court in the case Shree Chamund Mopeds Ltd. vs. Church of South India Trust Association, Madras, AIR 1992 SC 1439, 1444 has analysed the difference between "stay of operation" of an order and "quashing" of an order and held that 'stay of order' of an appellate authority / court by a higher court means that the order passed by the appellate authority / lower court still continues to exist in law inspite of the 'stay' and its existence is not destroyed. But where the order of the appellate / lower court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord". However, in the ground, the amount disallowed is mentioned at Rs.3,96,280/- and the disallowance is restricted to Rs.1,18,419/-. 9. We have heard rival contentions and gone through facts and circumstances of the case. We find that the outstanding details of sundry creditors and total claim made reads as under:- Outstanding as on 31.03.2007 Total claim 1. Labour charges payable 69,890/- 3,15,890/ - 2. Salary & Wages 6,700/- 44,400/ - 3. Fooding Expenses payable 10,230/- 30,535/ - 4. Travelling & Conveyance 8,930/- 22,780/ - 5. Repairs & Maintenance 22,670/- 2,65,310/ - 1,18,420/- The assessee before us contented that it is following accounting system, which prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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