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ABDUL SAMAD Versus ASSISTANT COMMISSIONER OF INCOME-TAX

Disallowance under section 40(a)(ia) of the Act - non deduction of TDS u/s 194C on payments made to the so called transporters - Held that:- Assessing Officer failed to appreciate that there is no privity of contract between the assessee and the truck owners. He simply hired the vehicles from the owners and the entire risk of carrying the goods lies with him only and therefore privity of the contract does not lie with the assessee and the truck owners. Therefore there is no liability to deduct t .....

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s), Gwalior dated October 3, 2012 for the assessment year 2007-08. 2. The appellant raised the following grounds of appeal : "1. (a) That the learned Commissioner of Income-tax (Appeals) Gwalior has erred both in law and on facts in upholding the arbitrary and unjust disallowance of ₹ 96,58,950 under section 40(a)(ia) of the Act, made by the Assessing Officer, on the ground that the appellant failed to deduct tax at source under section 194C of the Act, on pay ments made to the so cal .....

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ns of section 194C of the Act are not applicable to him and accordingly he was under no statutory obligation to deduct tax at source from payments aggregating to ₹ 96,58,950, thus the disal lowance sustained under section 40(a)(ia) of the Act, deserves to be deleted. (d) That the disallowance of ₹ 96,58,950 under section 40(a)(ia) of the Act being made by the authorities below, by brushing aside the facts of the appellant's case, evidences/material placed on records and by misapp .....

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he Assessing Officer out of salary, telephone and mobile, truck loading and auto expenses, depreciation on cycle and car and miscellaneous expenses, even without pointing out a single instance of any alleged non-genuine or inadmissible expense. (b) That looking to the turnover, nature of expenses and legitimate business needs, the aforementioned expenses being incurred wholly and exclusively for the purposes of the business carried on by the appellant, thus these deserve to be allowed as busines .....

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mmon practice that the contractee makes deduction for loss suf fered on account of breakage and accordingly for working out the true and correct income of the appellant from business, such deduction is allowable as business loss and/or expenditure under section 28 read with section 37 of the Act. 4. That the appellate order dated October 3, 2012 is against the law and natural justice. The appellant seeks permission to modify and/or add, delete, any other ground/grounds of appeal as the circumsta .....

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dated December 27, 2010 at a total income of ₹ 1,09,19,578 by making disallowance of ₹ 96,57,950 under the provisions of section 40(a)(ia) of the Act for not deducting tax on payments made on transportation and disallowances out of expenditure of ₹ 2,09,083 and on account of breakage expenses of ₹ 3,66,285. Being aggrieved by this, the appellant filed an appeal before the learned Commissioner of Income-tax (Appeals), Gwalior who dismissed the same vide his order dated Oc .....

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hat the provisions of section 194C of the Act have no application. Finally, the argument of learned counsel was that even presuming that the provisions of section 194C are applicable since there was no payment outstanding as on March 31, 2008, the ratio of the decision of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transports v. Addl. CIT [2012] 16 ITR (Trib) 1 (Visakhapatnam) [SB] is applicable. Hence no disallowance can be made. 5. On the other hand, the learned senio .....

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