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TMI Blog2012 (11) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... s are reproduced herein below for reference: "1. On facts and circumstances of the case as well as the law on the subject, the Commissioner of Income Tax (Appeals), Valsad, has erred in confirming the order of the Assessing Officer assessing income of the appellant at Rs.1,09,03,430/- as against the returned income of Rs.3,08,610/- 2. On facts and circumstances of the case as well as the law on the subject, the Commissioner of Income Tax (Appeals), Valsad, has erred in confirming the addition of Rs.1,05,83,555/- made by the Assessing Officer by invoking the provisions of Sec. 40(a) (ia) of the Income Tax Act, 1961. 3. On facts and circumstances of the case as well as the law on the subject, the Commissioner of Income Tax (Appeals), Valsad, has erred in confirming the action of the Assessing Officer who made the addition by invoking the provisions of Sec. 40(a) (ia) of the Income Tax Act, 1961, without appreciation that these provisions are not applicable to the appellant as he is a transport commission agent and not a transport contractor. 4. On facts and circumstances of the case as well as the law on the subject, the Commissioner of Income Tax (Appeals), Valsad, has erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and made the addition of Rs.1,05,83,555/- by invoking the provisions of Sec. 40(a) (ia) of the Act. 4. The assessee carried the matter before the learned CIT(A), however the learned CIT(A) confirmed the order of the learned AO for the addition amounting to Rs.69,33,473/- with the following observations: "4.3 I have carefully considered both rival submissions and observation in support of their arguments. The essence of the various observations made by the AO in the assessment order that the appellant had violated the provisions of sec. 40(a) (ia) r. w. s. 194C are prima- facie acceptable as the appellant has not deducted tax at source on the aggregate payments of Rs.1,05,83,554/- made to transports. I am of the considered view that after the enactment of the provisions of Sec. 40(a) (ia), the decision of the Apex Court in case of Hindustan Coca Cola Beverages Pvt. Ltd. Vs CIT 293 ITR 226, as relied upon by the appellant does not have significance or baring in the circumstance of the case of the appellant as the appellant has apparently not deducted tax at source on the payments to the payees who are transport operators. I am of the considered opinion that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the latter agrees to return the property after the expiry of the agreed period. The Explanation to section 194C was introduced with effect from July 1, 1995. There is no principle of interpretation which would justify reading the Explanation as operating retrospectively, when the Explanation comes into force with effect from a future date. The assessee, a Tamil Nadu Government Undertaking, was engaged in the business of transportation of coal from the sports of Haldia, Visakhapatnam and Paradeep to Chennai and Tuticorin under contracts executed with the Tamil Nadu Electricity Board. The assessee owned three ships. Since three ships were not sufficient to carry out the contracts entered into by the assessee with Tamil Nadu Electricity Board, the assessee hired ships belonging to other shipping companies and paid hire charges to the other shipping companies for using their ships. The assessee, however, did not deduct tax under section 194C of the Income-tax Act before making payment of hire charges to the shipping companies. The Assessing Officer treated the assessee as in default and directed the assessee to pay the tax under section 201(1) of the Income-tax Act and also lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for operation are road-worthy complying with all specifications for performing such hazardous work. Item No.2 delivery carriage of goods: The appellant shall make arrangement for delivery of the cylinders within the stipulated time and shall deliver the cylinders according to the instructions of M/s. HPCL. All the specifications directed by M/s. HPCL shall be followed by the appellant. Item No.3 operation of trucks: The appellant shall obtain the requisite road permits and other permits applicable for transportation of goods. The appellant shall bear the entire operational cost of the trucks etc. Item No. 4 Loss/damages of cylinders The appellant shall be solely responsible for the safe custody of the cylinders. Item No.5: Utilization of trucks The appellant shall operate all the trucks for all the stations awarded to it and it shall inform M/s. HPCL if any truck is withdrawn. Item No.6: Loading/unloading/handling of cylinders Loading/unloading of the cylinders shall be performed by the appellant. Item No.7: Transshipment The appellant shall undertake the movement of the produce entrusted to him by M/s. HPCL without transshipping. However, is the transshipment is inevi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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