TMI Blog2015 (3) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for by the assessee is added as income of the assessee then corresponding deduction on account of expenses has to be allowed, which has not been allowed by the Assessing Officer. He has noted that such expenses were in fact not incurred by the assessee but by the tanker owners. No such fact has been brought on record by the Assessing Officer that the assessee was in fact not working as commission agent but as a transport operator. Hence, even if the receipts as per TDS certificate are to be considered as income of the assessee then the payment made by the assessee has to be allowed as expenses and it will not result in addition in the hands of the assessee. - Decided in favour of assessee. Non deduction of TDS on payments made to vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner of Income Tax (Appeals)-II, Kanpur erred in law and on facts in deleting the addition of ₹ 22,69,756/- made by the Assessing Officer on account of 'Nondeduction of TDS on payments made to various parties', without appreciating the facts brought on record by the Assessing Officer during the course of assessment proceedings. 3. That the order of the learned Commissioner of Income Tax (Appeals)-II, Kanpur dated 20/06/2011 needs to be quashed and the order passed by the Assessing Officer dated 30/12/2008 be restored. 3. Learned D. R. of the Revenue supported the assessment order whereas learned A. R. of the assessee supported the order of learned CIT(A). He also placed reliance on a judgment of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made payment to the appellant. Such freight amount was payable to the tanker owners and the same was paid from time to time. The only basis adopted by the Assessing Officer in making an addition of ₹ 24,63,336/- is TD5 certificates issued by the parties in the names of the appellant on account of payments of freight made directly to the drivers of the tanker owners or to the appellant firm. The Assessing Officer has assessed the entire gross receipt as income of the appellant. Even the element of any deduction relating to plying of tankers incurred by the tanker owners has not been considered by him. I fail to understand as to how the freight receipt which belongs to the tanker owners can be considered as income of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds that the Assessing Officer made enquiry u/s 133 (6) of the Act from various owners of the tankers engaged by the appellant. All the parties had filed their replies confirming that the appellant firm was doing business of commission agency in transportation work and their vehicles were engaged in such business. All the parties confirmed their balances outstanding in the books of the appellant. Further, the verifications u/s 133(6) have also been done by the Assessing Officer during the course of assessment proceedings. Now the question to be decided is as to whether the provisions of section 194C were applicable in the case of the appellant. For the applicability of these provisions it is to be seen as to whether the appellant can be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the assessee and the corresponding amount credited by the assessee and freight short credited in the books of the assessee. The Assessing Officer came to a total of ₹ 24,63,336/- as freight short credited in the books of the assessee. As per the same chart, the total of column with the heading amount of freight credited in the books, comes to ₹ 14,21,742/-. The Assessing Officer is also saying that the assessee has made payment of freight without TDS of ₹ 22,69,756/-. We fail to understand that when the assessee has accounted for the freight receipt of ₹ 14,21,742/-, how the assessee can make payment of freight of ₹ 22,69,756/- and still the assessee can show an income of ₹ 1,30,515/-. Be that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission agent but as a transport operator. Hence, even if the receipts as per TDS certificate are to be considered as income of the assessee then the payment made by the assessee has to be allowed as expenses and it will not result in addition in the hands of the assessee. 6. Regarding the second aspect i.e. disallowance of ₹ 22,69,756/- on the basis that no TDS was deducted by the assessee, we find that the judgment of Hon'ble Delhi High Court rendered in the case of Hardarshan Singh (supra) supports the case of the assessee. In that case also, the assessee was engaged in lorry booking business. In that case also, the assessee was collecting freight charges from clients who intended to transport their goods through separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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