TMI Blog2011 (9) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... . Surana, A.R. ORDER Per Shri S.V. Mehrotra, Accountant Member The Department has filed this appeal for assessment year 2006-07 against order of ld. Commissioner of Income Tax (Appeals)-XX, Kolkata dated 05.04.2011 on following grounds :- (1) For that on the facts and circumstances of the case, ld. CIT(A.) was not justified in giving relief of ₹ 69,32,084/- which was added under section 40(a)(ia) of the Act. (2) For that on the facts and circumstances of the case, ld. CIT(A.) erred in giving relief of ₹ 17,36,100/- out of (1) above by not considering the necessity of filing Form 15J by the assessee to the prescribed authority for non-duction of tax. (3) For that on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of ₹ 69,32,084/-. 3. Before the ld. CIT(Appeals), it was submitted that as regards the payments of ₹ 17,36,100/- made to truck owners, they had submitted Form No. 15I to the assessee and, therefore, there was no obligation to deduct tax at source in view of the second proviso to section 194C(3). It was pointed out that the Assessing Officer made disallowance on the ground that Form No. 15J was not submitted to the prescribed authority. It was further clarified that Assessing Officer wrongly stated in the remand report that Form No. 15I obtained from the truck-owners was not produced at the assessment stage. As regards payments of ₹ 51,95,984/- made to transporters without deducting tax at source under section 194C, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of section 194C are applicable only where the payments are made in pursuance of contract. But the Assessing Officer had brought no material on record to show that there was any contract between the assessee and the transport operators or individual truck owner. 5. Learned Departmental Representative for the Revenue relied on the assessment order and submitted that before the Assessing Officer it was not contended that individual truck owners had filed Form 15I. It was produced before the ld. CIT(Appeals) for the first time. Ld. counsel referred to page 6 of ld. CIT(Appeals) s order and pointed out that assessee had specifically refuted the contention of Assessing Officer that Form No. 15I was not produced at the assessment stage. He r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect with reference to remand report of Assessing Officer. He observed in para 7 that assessee had clearly mentioned in its letter dated 10.12.2008 filed at the assessment stage that the truck owners had submitted Form No. 15I, which has also been acknowledged in the remand report. Under such circumstances, it cannot be doubted that assessee had obtained Form No. 15I from the truck owner.. In the backdrop of this factual position, we find that the issue is squarely covered by the decision of ITAT, Mumbai Bench in the case of Shri Vipin P. Mehta vs.- ITO in ITA No. 3317/Mumbai/2010 vide order dated 20.05.2011, wherein it has been held as under :- .All these provisions indicate that the failure on the part of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion vs.- ITO in ITA No. 1753/Kol./2009 for the assessment year 2006-07, order dated 11.08.2011, disallowance was not warranted. In the result, Ground No. 2 of the appeal is dismissed. 7. As regards Ground No. 3, in which the deletion of disallowance of ₹ 51,95,984/- is assailed, it is not disputed that no sub-contract agreement, either written or oral, existed between the assessee and the truck operators or individual truck owners. Further, it is also not disputed that the services of different transport operators were taken merely for arranging the trucks on hire. But the payment was made directly to the truck owners. Under such circumstances, it could not be said to be a case of sub-contract being assigned to transport operator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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