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TMI Blog2015 (4) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not deemed to be an assessee in default under the first proviso to section 201(1) of the Act. The Tribunal dealt with the plea of the assessee that such amendment was intended to eliminate undue hardships to the taxpayers and therefore it should be held as retrospective in nature. Thus we restore the matter back to the file of the Assessing Officer to adjudicate the issue afresh in accordance with the directions of the Tribunal in the case of M/s Gaurimal Mahajan & Sons (supra) - ITA No.1708/PN/2012 - - - Dated:- 10-4-2015 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER Department by : Shri Rajesh Damor Assessee by : Shri Sharad Shah ORDER PER G. S. PANNU, AM The captioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,08,964/- remained outstanding as on 31.03.2008 and hence disallowance should have been made by the Assessing Officer only for this amount. Regarding payment of hire charges, he contended before the CIT(A) that there was no amount outstanding in the Balance Sheet as on 31.03.2008, and therefore no disallowance was required to be made. The CIT(A) agreed with the contentions of the assessee and by following the decision of the Visakhapatnam Special Bench of the Tribunal in the case of Merilyn Shipping Transports vs. ACIT, 70 DTR 81 (Visakhapatnam) (SB) directed the Assessing Officer to delete the aforesaid impugned addition. Not being satisfied with the decision of the CIT(A), Revenue is in appeal before us. 5. At the time of hearing, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) dealt with another argument of the assessee to the effect that the second proviso to section 40(a)(ia) of the Act inserted by the Finance Act, 2012 w.e.f. 01.04.2013 be applied retrospectively. Notably, the said second proviso to section 40(a)(ia) of the Act prescribes that the disallowance u/s 40(a)(ia) of the Act could not be made if an assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the Act. The Tribunal dealt with the plea of the assessee that such amendment was intended to eliminate undue hardships to the taxpayers and therefore it should be held as retrospective in nature. On this aspect, the Tribunal in the case of M/s Gaurimal Mahajan Sons (supra) referred to the decision of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed transactions, in our view, the absence of a written contract would not make any difference. In the instant case, the assessee is repeatedly given works to the polishing people and hence the terms and conditions of the work would be clearly understood by both the parties. Accordingly, we reject this contention of the assessee and hold that the provision4s of sec. 194C shall apply to the polishing works given by the assessee. 7.1 According to Ld A.R, the assessee has acted as a conduit pipe in connection with the polishing works between the customers and the person doing polishing job. Accordingly, it was submitted that there is no profit element in the said transactions. The Ld A.R further submitted that the assessee has included the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of CIT Vs. Sikandar Khan N Tunvar (357 ITR 312) and the Hon'ble Calcutta High Court in the case of CIT Vs. Crescent Export Syndicate (ITAT 20 of 2013) have held that the decision rendered by the Special Bench in the case of Meryline Shipping Transports is not a good law. The Ld A.R, however, placed reliance on the decision of Hon'ble Allahabad High Court in the case of Vector Shipping Services (357 ITR 642). On a careful perusal of the decision given by Hon'ble Allahabad High Court, we notice that the High Court has decided the issue referred to it on a different footing and has made a passing comment about the decision rendered by the Special Bench. Thus, the ratio of the said decision is different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in effect, rejected all the contentions of the assessee except the ground relating to applicability of the second proviso to sec.40(a)(ia) of the Act to the year under consideration . 8.3 Since the above arguments are being advanced before the Tribunal for the first time and the correctness of the contention has not been examined by the tax authorities, therefore, respectfully following the decision of the Cochin Bench of the Tribunal cited (Supra) and in the interest of justice, we restore this issue to the file of the Assessing Officer with a direction to examine the above contention of the assessee and decide the issue afresh and in accordance with law. Needless to say, the Assessing Officer shall give due opportunity of being hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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