9911796707
TMI Blog2019 (9) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... . 24/12/2009 relevant to the Assessment Year 2007-2008. The Revenue has raised the following grounds of appeal. 1. The Ld. CIT (A) has erred in law and on facts in deleting the addition of Rs. 3,49,02,235/- made u/s.40(a)(ia) on account of non-deduction of tax u/s.194C of the Act. 2. On the facts and circumstances of the case the Ld. CIT (A) ought to have upheld the order of the Assessing Officer. 3. It is therefore, prayed that the order of the Ld.CIT(A) may be set-aside and that of the Assessing Officer be restoted. The sole issue raised by the assessee is that the Ld. CIT(A) erred in deleting the addition of Rs. 3,49,02,235/- made by the AO on account of non deduction of TDS on freight charges paid by the assessee. 2. Briefly st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CIT (A) that he is doing the business as a transporter commission agent and furnished the following evidences in support of his claim: 1) Copy of the lorry receipt showing Truck No. of vehicles. 2) Copy of cash voucher of payment for the vehicle hired. 3) Transportation charge invoice issued to the customer. 4) The margin is around 300 to 700 per truck only. 5) He does not own any truck as the same is verifiable from the Audited Balance sheet. 6) The accountant looking after the affairs was expired due to illness in 2013. Therefore it was difficult to collect all the records. 7) The assessee collected the form-I at the time of hiring of truck and before loading the goods in the truck. Therefore at the time of payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in addition to saying that TDS provisions vis-a vis sec 40(a)(ia) were not applicable in the year under consideration to the individual and HUF assessees. However, examination is restricted to only the 2 issues so as to comply with the directions of Hon'ble ITAT. The AO is right in saying that he has limited scope to examine the new evidence with the comment that circumstances to invoke rule 46A are not prevalent. However, the additional evidences are circumstantial in nature and go to the root of understanding the controversy in question. Therefore, same are decided to be admitted for sake of natural justice. Moreover, it is to be kept in mind that in this audited case u/s.44AB, addition of Rs. 3,49,02,235/- has been made by AO out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is acting as an agent and its income is limited within the range of Rs.200 to 700 per truck per trip. b. Whether the assessee has furnished form 15 I duly filled before making the payment to the truck owners. 6.3 Regarding the 1st issue we note that the assessee does not own any truck as evident from the submission of the assessee which was not controverted by the AO. The relevant submission of the assessee is reproduced as under: We further submit that the assessee is not having his own truck. He is sitting al Transportnagar, Narol. Ahmedabad and doing the business as a transport commission agent since more than 15 years. Assessee has developed contracts with the truck owners having one or two trucks of Gujarat and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote that the assessee was merely acting as an agent. Accordingly, the assessee is not liable to deduct the TDS on the payment made to the truck owners. 6.5 Regarding the 2nd controversy whether the assessee has received form 15 I duly filled from the truck owners, we note that the assessee has furnished a list of 340 parties along with their addresses, truck numbers with the date of registration and the date of form 15 I which is placed on pages 83 to 90 of the paper book. On perusal of the same, we note that all the details of the truck owners were furnished before the AO. However, the AO has not carried out any verification of such details to prove them erroneous by issuing notice to any of the party under section 133(6)/131 of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned in two provisions are different. Second proviso is to be complied with at the time of making payment to the sub-contractor, whereas compliance of third proviso can be deferred till 30th June of next financial year. In other words, the contractor can wait to comply with third proviso till 30th June of next financial year after complying with second proviso. However, the decision on deductibility of tax from the payment made to the sub-contractor cannot be deferred till 30th June of next financial year. He has to take this decision (about deductibility of tax from payments being made by it to the sub-contractors) just at the time when he is releasing the payments to the sub-contractors. It is at this point of time that second proviso wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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