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TMI Blog2016 (7) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract in existence entered into by the assessee. No infirmity in the order of Ld. CIT(A) - Decided against revenue - I.T.A No. 1694/Kol/2013 - - - Dated:- 15-7-2016 - Shri M. Balaganesh, AM And Shri S. S. Viswanethra Ravi, JM For the Appellant: Shri Sital Chandra Das, JCIT, Sr. DR For the Respondent: Shri Miraj D. Shah, AR ORDER Per Shri M. Balaganesh, AM This appeal by revenue is arising out of order of CIT(A)-XIV, Kolkata vide appeal No. 125/CIT(A)-XIV/11-12 dated 28.03.2013. Assessment was framed by DCIT, Circle-28, Kolkata u/s. 144 of the Income tax Act, 1961 (hereinafter referred to as the Act ) for AY 2006-07 vide his order dated 10.11.2008. 2. The only issue to be decided in this appeal of revenue is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses, tyre expenses, trip expenses and driver s salary which admittedly does not require deduction of tax at source. It was also contended before the ld. CIT(A) that no disallowance was made by the Ld. AO in AY 2005-06 under the similar set of facts and circumstances. The Ld. CIT(A) observed that there was no contract with any transporter for hiring of trucks entered into by the assessee because the assessee owned sufficient number of trucks which is evident from the depreciation schedule of the assessee. The Ld. CIT(A) thereafter placed reliance on the decision of the Hon ble Kolkata High Court in the case of CIT Vs. M/s. Stumm India in ITA No. 127 of 2009 dated 16.08.2010 wherein it was held that unless the department brings into record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT(A) from the AO. Accordingly, he prayed for setting aside the issue to the file of the Ld. AO in the interest of justice. 6. In response to this, Ld. AR argued that no fresh evidence were filed before the Ld. CIT(A) by the assessee. The Ld. CIT(A) simply verifying the P L Account of the assessee found that the Transportation Charges included fuel expenses, tyre expenses, trip expenses and driver s salary. In fact, the Ld. CIT(A) carried out the duty of the Ld. AO who ought to have framed the assessment based on the material available on record and in the form of P L Account and Balance Sheet filed along with the return of income even in the case of best judgment assessment u/s. 144 of the Act. He further argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and had come to a conclusion that the Transportation Charges includes only fuel expenses, tyre expenses, trip expenses and driver s salary. We find that the Ld. AO had not brought any material on record to suggest that there was indeed any contract or sub-contract in existence entered into by the assessee. Under these circumstances, we find that the decision of Hon ble jurisdictional High Court in the case of M/s. Stumm India, Supra clearly supports the case of the assessee wherein it was held as under: It is urged before us that the learned Tribunal ought not to have accepted the judgment and order of the CIT(Appeal) who has quashed the disallowance of deduction of ₹ 41,33,710/- and on account of tax deduction at sour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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