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TMI Blog2017 (11) TMI 1676X X X X Extracts X X X X X X X X Extracts X X X X ..... s for arranging the truck for transportation. - decided in favour of assessee - D.B. Income Tax Appeal No. 63/2016, 215/2016 - - - Dated:- 7-11-2017 - Mr. K.S. Jhaveri And Mr. Vijay Kumar Vyas JJ. For the Appellant(s) : Mr. Prateek Kedawat with Mr. K.D. Mathur for Mr. R.B. Mathur For the Respondent(s) : Mr. P.K. Kasliwal JUDGMENT 1. In both these appeals common question of law and facts are involved hence they are decided by this common judgment. 2. By way of these appeals, the appellant has assailed the judgment and order of the tribunal whereby the tribunal has allowed the appeal of the assessee and reversed the view taken by the AO as well as CIT(A). 3. This court while admitting the appeals framed following substantial question of law:- 3.1 Appeal No.63/2016 admitted on 26.4.2016 Whether on the facts and in the circumstances of the case and in law the ITAT has erred in deleting the addition of ₹ 8797747/- u/s 40(a) (ia) of the Act considering that assessee was not liable to deduct the tax at source u/s 194C(2) of the IT Act. 3.2 Appeal No.215/2016 admitted on 2.5.2017 Whether on the facts and in the circumstances of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following documents were received in the office of Addl. CIT, Range-4, Jaipur on 30.6.2008 as per the entries in the receipt register. The same is marked as Annexure-B of this appellate order. S.No. Receiving Date Receipt No. Subject 1 30.06.2008 643 Filing of appeal in the case of M/s. Ceramic Industries for AY 2005-06. 2 30.06.2008 644 Filing of appeal in the case of M/s. Darshan Art Exports for AY 2004-05. 3 30.06.2008 645 Filing of appeal in the case of Sh. Vinod Bothra for AY 2005-06. 4 30.06.2008 646 Approval for issue of refund in the case of Sh. R.K. Gupta for AY 2006-07 5 30.06.2008 647 Training cancellation letter 6 30.06.2008 648 Central scrutiny report in the case of Sh. Fauza Singh Dadiala for AY 2005-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck owners was to be paid the amount of TDS by the assessee. The assessee got the refund and adjust the refund against the payment made by him to the truck drivers. The assessee has not debited any expenses on account of freight charges in the P L account. Therefore, Section 40(a)(ia) is not applicable and is also not liable to be deducted TDS U/s 149C of the Act. The case laws referred by the assessee are squarely applicable on it. The assessee also had filed Form No. 15J before the Addl.CIT and at the time of assessment proceedings before the Assessing Officer, which has not been controverted by the DR. if the assessee has produced the evidence regarding submission of Form No. 15-J before the lower authority, in which some fault had been found on the ground that no signature, number of receipts has been provided by the Range office, is not any fault on part of the assessee. The assessee has furnished the Form No. 15-J in the office of the Commissioner. Various Courts also even considered and held justified Form No. 15-J before the Assessing Officer at the time of assessment proceedings. Therefore, we reverse the order of the ld CIT(A). Accordingly, this appeal is allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt upheld the decision of the Tribunal in holding the assessee was not liable to deduct tax u/s 194C from the payments made to the transporters in absence of oral or written agreement between the assessee and the transporters for carriage of goods nor was it proved that any freight charges were paid to them in pursuance of a contract for a specific period, quantity or price. The l.d. CIT(A) was thus not correct in fixing liability on assessee for non making TDS on the payments of ₹ 30,99,661/- as freight by Mangalam Cement Ltd. to the truck owners. We order accordingly, while deleting disallowance of ₹ 30,99,661/- made by the l.d.CIT(A) in this regard. The ground no.1 of the appela preferred by the revenue is thus rejected and ground of the appeal preferred by the assessee is allowed. Consequently, ground no 2 of the appeal preferred by the revenue is rejected as having become infructuous in view of our finding in ground of appeal preferred by the assessee on the issue. 13. In view of the observations made by the Tribunal, he contended that the order passed by the tribunal is just and proper. 14. He also invited our attention to the contract which was entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act supersedes all our previous contracts. Please give our acceptance on the copy of this contract. 14.1 In support of his submission he relied on decision of Calcutta High Court in Hightension Switchgears (P.) Ltd. vs. CIT, reported in (2016) 385 ITR 575 (Calcutta) wherein it has been held as under:- 9. From a combined reading of the provisions set out above, it would appear that any person responsible for paying any sum to any resident on account of carriage of goods shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, [deduct an amount equal to - (iii) one per cent in case of advertising, (iv) in any other case two per cent, of such sum as income-tax on income comprised therein.] Therefore, the relevant question to be asked is, who was responsible for paying any sum to any resident for carriage of goods? The answer obviously is that it was the seller who was responsible for paying and the seller admits to have done that. Therefore, the liability to deduct tax was that of the seller. In case seller is unable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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