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2015 (1) TMI 919 - ITAT PANAJITDS u/s 194C - Non deduction of tds on payment of demurrages to parties in India - additions made u/s 40(a)(ia) r.w.s sec. 194C deleted by CIT(A) - Held that:- Assessee has issued cheque bearing no. 46101 dt. 16.5.2008 for total amount of ₹ 2,05,660/- which according to the Assessee includes the sum of ₹ 1,25,272/- relating to the air freight cartage. We noted that from the covering of the bill that the bill is issued by Jet Air Freighters and not by the C&F agent as contended by the ld. AR. The amount paid by the Assessee through the cheque is also ₹ 2,05,660/- and not ₹ 1,25,272/-. The invoice nowhere states that it represents reimbursement of the air freight but it is the invoice made by Jet Air Freighters. This document, in our opinion, does not prove that the Assessee has reimbursed the air freight paid by the C&F agent. The bills raised by Jet Air Freighters are directly in the name of the Assessee. In view of these facts, we do not agree with the contentions of the Assessee. The onus, in our opinion, lies on the Assessee to prove that the payment made by it to the C&F agent represents the reimbursement and not the amount paid for any services rendered by them. Board has clearly laid down in Circular no. 715 dt. 8.8.1995 that “As regards payments made to clearing and forwarding agents for carriage of goods, the same shall be subjected to tax deduction at source u/s 194C of the Act.‟ The ld. AR could also not adduce any evidence that the C&F agent deducted tax at source while making payment to the carrier so as to prove that the amount which was paid by the Assessee to the C&F agent represents reimbursement of the freight paid by the C&F agent on behalf of the Assessee to the airlines. It is not the intention of the legislature that neither the C&F agent deducts the tax when it makes the payment to the carrier nor the Assessee deducts the tax at source when it makes payment to C&F agent. If the Assessee claims that the amount paid to the C&F agent by the Assessee represents reimbursement, the onus is on the Assessee to prove that it represents the reimbursement of the claim. In our opinion, provisions of Sec. 194C are clearly applicable in the case of the Assessee. - Decided in favour of revenue
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