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TMI Blog2016 (12) TMI 1138X X X X Extracts X X X X X X X X Extracts X X X X ..... gh - CA For The Department : Shri Kailash Gaikwad - DR ORDER PER C.N. PRASAD, JM This appeal is filed by the assessee against the order of the ld.CIT(A)-22, Mumbai dated 03/02/2014 for the Assessment Year 2008-09. 2. The first issue in this appeal of the assessee is that the ld. CIT(A) erred in confirming the disallowance made by the Assessing Officer under section 40(a)(ia) of the Act in respect of reimbursement of transportation expenses. 3. Brief facts of the case are that the assessee company engaged in the business of generation and sale of electricity through wind-mill and development of housing project, filed its return of income on 27/09/2008 declaring income of ₹ 1,94,49,680/-. The assessment was completed under section 143(3) on 21/12/2010 determining the income of the assessee at ₹ 5,16,46,925/-. While completing the assessment, the Assessing Officer disallowed ₹ 1,41,49,023/- under section 40(a)(ia) of the Act on the ground that the assessee has not deducted TDS on such amount. This amount represents transportation charges paid by the assessee to M/s.SSTA Logistics (I) Pvt. Ltd. for transportation of 1000 MTS of iron ore fine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, it was the submission that the assessee has reimbursed the transportation charges to M/s. SSTA Logistics (I) Pvt. Ltd. on which no TDS is required to be made. It was the further submission that since all these payments were made within the accounting year and no outstanding amount is payable, the provisions of section 40(a)(ia) have no application. We accept the contentions of the assessee that the provisions of section 40(a)(ia) have no application for payments already made during the current year by the end of the accounting year. This aspect of the matter has been considered by various coordinate Benches of this Tribunal including the Mumbai Bench in the case of Shri Jitendra Mansukhlal Shah (supra), wherein it was held as under:- 5. We have heard both the parties and their contentions have carefully been considered. Recently, Mumbai Tribunal has decided such issue in favour of the assessee by considering the earlier decisions. Judicial Member is one of the party to the said decision The relevant observations of the Tribunal are as under: 5. We have heard both the parties and their contentions have carefully been considered. After careful consideration, respectfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact not argued either by the assessee or by the Revenue, we hold that section 40(a)(ia) is not attracted in respect of payment already made by the end of the previous year. The AO is directed to verify the claim of the assessee and if it is in line with the view taken herein the same may be considered accordingly. As regards levy of interest under section 234B and 234C of the Act, the same is consequential in nature and need not to be considered independently. 7. In the result, the appeal filed by the assessee is treated as allowed for statistical purposes 5.1 Moreover, Hon'ble Allahabad High Court in the case of CIT vs. Vector Shipping Services (P) Ltd.(supra) has held that for disallowing expenses from business and profession on the ground that TDS has not been deducted, amount should be payable and not which has been paid by end of the year. The said decision of Hon'ble Allahabad High Court was made subject to Special Leave Petition filed before Hon'ble Supreme Court and their Lordships vide their order 6 ITA NO.2293/MUM/2013(A.Y. 2005-06) ITA NO.2294/MUM/2013(A.Y. 2006-07) dated 02/07/2014 in CC No.8068/2014 have dismissed the SLP and copy of this order is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment and while making addition towards the closing stock, rejected the contention of the assessee that there is handling loss of iron ore to the extent of 0.99% while loading and unloading, storage, purchase of iron-ore in the course of trading. The Assessing Officer disallowed the entire handling loss claimed by the assessee observing that as per the delivery sheets and challans produced by the assessee, it clearly shows that there is no handling loss since the quantity loaded and unloaded at the port are more or less same. He also observed that the assessee could not furnish any evidence regarding incurring of handling loss while purchase sale. 11. On appeal, ld. CIT(A) accepted the contention of the assessee that there would be handling loss, hence, he restricted the same to 0.90% as against 0.99% claimed by the assessee. 12. The Authorized Representative of the assessee reiterated the submissions made before the authorities below and further submitted that handling loss claimed by the assessee is very much reasonable being first year and last year of trading of iron-ore. 13. Departmental Representative supported the orders of the authorities below. 14. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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