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TMI Blog2014 (2) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 40(a)(ia) of the I.T. Act, 1961 (hereinafter referred to as the "Act"). 3. The facts related to this issue, in brief, are that the Assessing Officer during the course of assessment proceedings noticed that the assessee had debited Rs.14,43,278/- under the head 'job charges' which included Rs.9,96,538/- paid to Keshriyaji Marble & Granites Pvt. Ltd. The Assessing Officer asked the assessee to show cause as to why the above expenses be not disallowed u/s 40(a)(ia) of the Act. In response the assessee submitted that the TDS was not to be deducted on job work as the assessee did not have any regular contract. It was further stated that the assessee was purchasing marble blocks from mine owners and getting it sawing on gangsaw so it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia) of the Income Tax Act, 1961 for non deduction of tax at source. We submit your honour that the appellant is doing business of marble trading and he is getting marble sawing from various gangsaw, he does not have any fixed contract with any gangsaw. It is his regular business transaction and may not be covered within the definition of works contract, hence the sec. 40(a)(ia) of the Income-tax Act may not be applicable. We further submit in the light of the decision of Hon'ble ITAT, Jaipur 'A' Bench in case of Jaipur Vidyut Vitran Nigam Ltd. Vs. Dy. CIT, reported at (2009) 123 TTJ (JP) 888 (photocopy enclosed), the appellant does not have any outstanding payment of job work at the year end. Mostly payments are made at the time of bills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apatnam in the case Merilyn Shipping & Transports Vs. Addl. CIT Range-1, Viskhapatanam in ITA No.477/Vizag/2008 Asstt. Year 2005-06 dated 09/04/2012 [70 DTR (SB] 81. In the above decision, it has been held as under: "Provisions of s. 40(a)(ia) are applicable only to the amount of expenditure which is payable as on 31st March of every year and it cannot be invoked to disallow the expenditure which had been actually paid during the previous year without deduction of TDS." In view of above discussion and the judicial decision mentioned supra, it is held that TDS provision is not applicable on the amount of job charges of Rs.9,96,538/- as the same has already been paid before the last day of the relevant previous year. Thus, the disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings noticed that the assessee had claimed depreciation of Rs.2,82,597/- @30% on the dumpers while the allowable rate of depreciation was only 15%. When asked to justify the same, the assessee submitted as under: "1. The depreciation of dumper is claimed @30% considering their motor Lorries used in a business of running them on hire. The dumpers are used to transport the material only and also it satisfied the definition of motor vehicle Act. The dumpers are also registered under the motor vehicle Act, the photocopies of registration certificates are already submitted." 8.1 However, the Assessing Officer did not find merit in the submissions of the assessee by observing that tippers were non-transport vehicles although regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation on dumper/ tipper at the rate on which depreciation was allowable on transport vehicle had been examined by the jurisdictional Tribunal in the case of Sayeed Iqbal in ITA No.39/JU/2009 for the assessment year 2005-06. The learned CIT(A), by following the decision of the ITAT Jodhpur Bench, allowed the claim of the assessee and held that the assessee was eligible for claiming depreciation at the same rate at which depreciation was allowable on motor lorries. Now the Department is in appeal. 10. We have considered the submissions of learned D.R. and carefully gone through the material available on record. In the present case it appears that learned CIT(A) has allowed the claim of the assessee by following the decision of the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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