TMI Blog2013 (12) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... allen into the mischief of Sec. 40(a)(ia) for the disallowance of its alleged payments to lorriwalas without appreciating that there was no contract between the Appellant and the truck drivers and as the Appellant had earned only commission as an intermediary, the disallowance u/s. 40(a)(ia) r.w.s. 194C is uncalled for and therefore, the same may be deleted. b) The Id. CIT(A) failed to appreciate that in the event there is nothing remaining payable at the end of the year, the provision of Sec. 40(a)(ia) is not attracted and the disallowance u/s. 40(a)(ia) r.w.s. 194C in uncalled for and the same may be deleted in view of the ITAT Special Bench decision of M/s. Merilyn Shipping Transports. c) The Id CIT (A) ought to have appreciated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from indifferent health on account of cutting of foot finger as he was a chronic diabetic. He did not inform the assessee regarding collection of the order from the office of the CIT(A) and when the partner of the assessee firm met him on 4th June, 2012, the order was handed over to the partner and after receipt of the such order, appeal was filed before the Tribunal on 16th July, 2012. 5. We have heard both the parties on this issue and after considering the contents of the application filed for condonation of delay, which is supported by an affidavit, we condone the delay and proceed to decide the present appeal. 6. On the appeal, at the outset, it was pointed out by the learned AR that this issue was raised by the AO in earlier yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding ₹ 50,000/- in an year confirmed the amount to the tune of ₹ 1,16,38,870/-. We are afraid we cannot uphold the findings of the CIT (A) for the reason that there is no evidence on record that assessee is entering into a contract with any truck owner while arranging the trucks for transportation of goods.The Hon'ble Madras High Court in the case of CIT vs. Poompuhar Shipping Corporation Ltd. (2006) 282 ITR 3 (Mad) has held that mere introduction of truck drivers to transporters would not amount to a contract for carrying out any work of transporters as admissible in section 194C. However, these principles can only be applied, if it is established that assessee is not in the business of transportation. The details filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rified. Further whether mere arrangement of trucks resulted in any contract is to be examined as AO has not invoked the provisions of section 194C nor disallowed amounts u/s.40(a)(ia). Assessee is also contending that there is no outstanding amount payable as on 31/03/2007, so the Special Bench decision in the case of M/ s. Merilyn Shipping Transports vs. ACIT (supra) will apply as there are no outstanding payment so as to come under the provisions of section 40(a)(ia). Since these aspects are not examined by AO in its correct perspective, we are of the opinion that the appeal cannot be decided on legal principles alone without examining the facts. For this purpose, we set aside the assessment to the file of AO to examine the above issues ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. iii) (2013) 33 taxmann.com 250(Cal)(CIT Vs. Crescent Export Syndicate). 9. We have heard both the parties on the issue. The issue raised by the assessee in the present case is identical to the issue raised by the assessee before Tribunal in respect of assessment year 2007-08. The conclusion of the ITAT on the issue has already been reproduced in the above part of the order. Hence, respectfully following the aforementioned order, we pass similar order with the modification that the AO may also take into consideration other decisions which are available on this issue. After giving the assessee a reasonable opportunity of hearing, the AO will readjudicate the present issue as per provisions of law. We direct accordingly. 10. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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