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2014 (9) TMI 1020 - AT - Income TaxTDS u/s 194J - disallowance u/s 40(a)(ia) - payment for consumption testing fees w/o deduction of tds - Held that:- It is well settled principles of law that once the assessee admitted for disallowance before the assessing officer on facts, the same cannot be reagitated before the appellate authorities. If it is not admitted, then, it is open to the assessee to file an affidavit before the appellate forum explaining the circumstances and on that basis the appellate forum may call for explanation from the concerned officer as to how he recorded a finding that the assessee admitted for disallowance. In this case, no such affidavit is filed. The ld.representative for the assessee also has a doubt whether such admission was made or not? In the absence of any details and the affidavit from the assessee, this Tribunal do not find any infirmity in the order of lower authority. Accordingly, the same is confirmed. - Decided against assessee. Disallowance u/s 40A(3) - Held that:- Admittedly, the assessee purchased fish by paying cash exceeding ₹ 20,000.The assessee now claims that the payment was made to a headman / tharakan. A tharakan is commonly known as a broker or a middleman who facilitate finalization of the price between the seller and purchaser. A tharakan also known as Agent who would act either on behalf of seller or purchaser as the case may be. However, headman of fishermen is part of fishermen who will sort the fish catch and sell the fish on behalf of fishermen. Therefore, it is necessary to find out the exact role played by the person to whom the payment was made by cash. Merely because the assessee has paid ₹ 1,66,59,325 by cheque to the very same person that cannot alone be a reason to disallow the claim of the assessee. When the assessee claims that the payment was made to a headman who sorts the fish catch, the assessing officer shall find out the exact role played by the person who received payment by cash. When the very same person received huge payment by cheque, it may not be difficult for the assessing officer to summon them and examine the actual role played by him. Had the assessee claimed that the fish or fish products are purchased from fisherman or producers the matter would stand on different footing. Since the fish was admittedly purchased from a person other than fisherman or producers the exact role of that middleman has to be examined in view of the circular issued by CBDT. Issue is remanded back to the file of the assessing officer to bring on record the exact role played by the person who received the payment in cash. Non deduction of tds on shipping charges - disallowance u/s 40(a)(ia) - only contention of the assessee is that the amount has already been paid and that provisions of section 40(a)(ia) is applicable only in respect of the amount remains to be paid - Held that:- By following the judgments of the Calcutta High Court in Crescent Exports Syndicate and another [2013 (5) TMI 510 - CALCUTTA HIGH COURT ] and Commissioner of Income Tax v. Sikandadarkhan N Tunvar [2013 (5) TMI 457 - GUJARAT HIGH COURT] this Tribunal is of the considered opinion that the decision of the Special Bench of this Tribunal in the case of M/s Merilyn Shipping & Transports [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] and the judgment of Vector Shipping Services (P) Ltd [2013 (7) TMI 622 - ALLAHABAD HIGH COURT] are not applicable to the facts of the case under consideration whereas the judgments of the Calcutta High Court in Crescent Export Syndicate (2013 (5) TMI 510 - CALCUTTA HIGH COURT) and the Gujarat High Court in Sikandarkhan N Tunvar (supra) are squarely applicable to the facts of the case. The dismissal of SLP by Apex Court is not a declaration of law under Article 141 of the Constitution of India. Therefore, mere dismissal of SLP by Apex Court does not mean that the Apex Court declared any law on the subject. - Decided against assessee
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