TMI Blog2012 (7) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing on 22.02.12. 2. The Ld C.I.T. (Appeals) erred in law and on facts to uphold the disallowance of Rsl,75,337/- out of interest expenses u/s 40(a)(ia) of the Act. 3. The Ld C.I.T. (Appeals) erred in law and on facts to uphold the disallowance of ₹ 23,85,890/- out of freight and truck hire charges u/s 40(a)(ia) of the Act. 2. It was submitted by the Ld. A.R. that the entire amount on which no TDS was deducted, was paid by the assessee by the year end and no amount was outstanding as on 31.03.2008 and therefore, as per the decision of Special bench of the Tribunal rendered in the case of Merilyn Shipping Transports as reported in 136 ITD 23 (Vishakhapatnam) (SB), no disallowance u/s 40(a)(ia) is justified. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 but no evidence is available before us in support of this contention and this contention was never raised before the authorities below and hence, we feel that in the interest of justice, this matter should go back to the file of the A.O. for a fresh decision. We, therefore, set aside the order of Ld. CIT(A) on this issue and restore this matter back to the file of the A.O. for a fresh decision. The A.O. should examine the factual aspect as to whether the entire expenditure for which the disallowance was made by him u/s 40(a)(ia) was actually paid in the previous year ended on 31.03.2008 or any amount of expenditure is outstanding as on that date. We want to make it clear that the burden is on the assessee to bring evidence before the A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced. It is also noted by him that assessee has debited conveyance expenses of ₹ 22.95 lacs and salary bonus of ₹ 17.40 lacs and he treated the same on higher side because the same was not verifiable in the absence of books. Before Ld. CIT(A) or before us also, no such copy of accounts of expenses was furnished. Still Ld. CIT(A) has restricted the disallowance to the extent of 5% of these expenses only. Considering the facts of the present case, we do not find any reason to interfere in the order of Ld. CIT(A) on this issue. This ground of the assessee is rejected. 10. In the result, appeal of the assessee stands partly allowed for statistical purpose. 11. Order pronounced in the open court on the date mentioned herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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