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TMI Blog2018 (2) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,58,000/- made by the Assessing Officer under section 40(a)(ia) on account of payment of carriage inward charges and transport charges respectively without deduction of tax at source. 2. The assessee in the present case is an individual, who is engaged in the business of wholesale trading of pulses and other cereals. The return of income for the year under consideration was filed by him on 29.09.2011 declaring total income of Rs. 11,91,052/-. In the profit & loss a/c filed along with the said return, a sum of Rs. 42,29,997/- was debited by the assessee on account of carriage inward expenses. During the course of assessment proceedings, the said expenses were verified by the Assessing Officer and on such verification, he found that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the two involved parties. If this ingredient is absent, then the said section cannot be invoked. It is another settled principle of law that the person who asserts a proposition has to be the one to prove it. So, if an AO believes that a particular section is to be invoked because it is applicable in any case, then the onus of proving the applicability of that section lies with the AO. This is not the case of an assessee having to prove the elements of his return of income and his balance sheets where the onus lies at the door of the assessee who has made these assertions. In case, the AO disagrees with any of the elements of the returned income in the sense of the applicability, in the opinion of the AO, of any particular section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of view of the AO. Now, coming to the explanation offered by the appellant himself. He has pointed out that the transporters had to be appointed by the sellers themselves. This holds a certain reasonableness and therefore credibility in that since there are several sellers in far flung areas who would be sending their goods, definitely at times of selling of such commodities - since these sales are seasonal - when there would be rush by all purchasers to acquire these commodities - all at the same time, it would be reasonable to expect that the seller would be the ones who would pick up any transporter then available to dispatch the goods. The appellant, since he is getting these goods from several sellers, cannot be expected to have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(Appeals), the Revenue has preferred this appeal before the Tribunal. 4. We have heard the arguments of both the sides and also perused the relevant material available on record. The ld. D.R. has submitted that the disallowance made by the Assessing Officer under section 40(a)(ia) on account of transport and carriage inward charges is deleted by the ld. CIT(Appeals) on the ground that there was a failure of the Assessing Officer to dislodge the case made out by the assessee that the provisions of section 194C were not applicable in his case. He has contended that if at all there was such failure on the part of the Assessing Officer, the ld. CIT(Appeals) should have given an opportunity to the Assessing Officer to establish that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence in the form of bills raised by the suppliers, wherein the transport charges are separately charged by the suppliers to the assessee. It is thus duly established by the assessee on evidence that there was no contract between him and the concerned transporters and there was no requirement of deduction of tax at source as per the provisions of section 194C. We, therefore, find no infirmity in the impugned order of the ld. CIT(Appeals) deleting the disallowance made by the Assessing Officer under section 40(a)(ia) on account of transport charges by holding that the provisions of section 194C are not applicable and upholding the same, we dismiss this appeal filed by the Revenue. 5. In the result, the appeal of the Revenue is dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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