TMI Blog2010 (7) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in his favour. Therefore, the issue involved being legal is considered relying on the Apex Court s decision in the case of National Thermal Power Co. Ltd. v. CIT [ 1996 (12) TMI 7 - SUPREME COURT] In the result, appeal of the assessee is allowed on the additional ground and the sum of Rs. 61,63,280 disallowed u/s 40(a)( ia) is directed to be deleted. - D.K. TYAGI AND K.K. GUPTA, JJ. S.K. Tulsiyan for the Appellant. P. Kolhe for the Respondent. ORDER K.K. Gupta, Accountant Member. - The assessee is in appeal agitating the order of the learned CIT(A) observing that the assessee had not furnished Form No. 15-I before the Assessing Officer as claimed, without any basis, when copies of such forms were duly placed before the learned CIT(A) also. The assessee agitates that on the facts and circumstances of the case, learned CIT(A) erred in holding on the claim of the assessee that she had furnished Form 15J with required details before the CIT (TDS), Kolkata had not been found to be genuine, overlooking the fact that the assessee held the acknowledgement receipt in support of having filed such forms with the relevant authorities. Therefore, on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -contractor. He also noted Explanation (III) to section 194C brings the carriage of goods "work" under the ambit of sub-contract under which tax was to be deducted at source. He also stated that the provision of sub-section (3) of section 194C stipulates that TDS has to be deducted where the same is paid or is likely to be paid exceeding Rs. 50,000 during the financial year. After inviting the compliance of the said proviso, on the basis of furnishing of Forms 15-I and 15J, Assessing Officer thought it fit that as the assessee had not deducted tax at source was to be considered for disallowance under the provisions of section 40( a )( ia ). 5. Aggrieved the assessee appealed before the learned CIT(A) and submitted that however, as the assessee was not required to deduct tax from the payment made to the owner of the lorries in terms of second proviso to sub-section 194C(3), the Assessing Officer was of the view that the assessee had not complied with the provisions and in fact, the evidence of having filed Form 15J and Form 15-I available to the assessee was evident by filing the same Form 15J before the CIT (TDS) on 29-6-2006. The learned CIT(A) on his own considered that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stepping in the shoes of the main contractor and involving himself in execution of the main contract by even undertaking the risk involved in the main contract work. Coming to the case of the assessee, on the facts before the Tribunal, learned counsel submitted that the truck owners, whose trucks the assessee took on hire, from time to time, only hired out their trucks and even if there might have been some contracts between them and the assessee, they could, by no means, be considered as subcontractors in respect of the contract work undertaken by the assessee. They did not have to face the main contractee involved in the main contract work. Hence, if at all the provisions of section 194C are applied in assessee s case, it would be only section 194C(1) relating to the liability for payment made to the contractors and not section 194C(2) relating to payments made to sub-contractors. Prior to the amendment of sub-section 194C(1) by the Finance Act, 2007 with effect from 1-6-2007, an individual was not required under that sub-section to deduct tax at source in respect of payments made to the sub-contractor. The assessee s case, therefore, would be out of the ambit for the impugned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )( ia ). He, therefore submitted that the order of the learned CIT(A) be upheld. 8. We have considered the rival submissions and perused the material available on record. On careful consideration of the facts and circumstances and the additional ground raised before the Tribunal which is legally justified in any case does not dilute the proceeding oh material as already considered by the Assessing Officer and the learned CIT(A). In fact, on the basis of the assessee s repeatedly claiming that it is not covered by the provisions of section 194C(2) was negated by the Assessing Officer but to be considered under sub-section (3) when the exercise of obtaining Form 15-I from the truck owners entitling them for non-deduction, was to be considered and submitted to the CIT (TDS) in Form 15J which as per acknowledgement is placed at paper book pp. 3.7 was filed on 29-6-2006. The learned counsel before us has explained that the handling in the Department of securing the bulky document might have been misplaced could not be held against the assessee. However, on the basis of the relevant facts and the case law cited at the Bar and also on our verification of facts only lead us to hold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative could not relate the basis on which otherwise could be considered. It was not the Assessing Officer who had initiated the fact in favour of the assessee but only demolished the assessee s plea by holding the procedural non-genunity of the fact of having contravened the provisions of section 194C when the root cause for the disallowance has been considered by us in the cited decision, therefore, requires no further deliberation on the basis of learned counsel s submission for admission of the additional ground. No further controverting material has been brought out by the learned Departmental Representative on this score. The facts were already available to the authorities below. Therefore, the issue involved being legal is considered relying on the Apex Court s decision in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC). Learned counsel had made a plea for referring the issue to the file of the Assessing Officer for verification of the forms having been filed in accordance with law as per the decision of Tribunal, Jodhpur Bench in the case of Shree Choudhary Transport Co. v. ITO [2009] 7 27 SOT 76 (URO) which order has also been placed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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