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Smt. Madhu Mehta, C/o G.P. Mehta & Co. Versus The Dy. Commissioner of Income Tax

TDS u/s 194C - reimbursement of expenses - Held that:- We hold that reimbursement of expenses paid by the assessee to S. Natesa Iyer and company for reimbursement of air freight , insurance charges and postal charges in connection with export consignment shipped from India to Lusaka(Zambia) cannot be disallowed by invoking provisions of Section 40(a)(ia) of the Act as there is no liability on the assessee to deduct tax at source u/s 194C of the Act on these reimbursement of expenses paid by the .....

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be set aside and disallowance made by the A.O. and confirmed by the CIT(A) is ordered to be deleted. - Decided in favour of assessee.

Addition of notional interest as income from other services - Held that:- Assessee which was outstanding to be receivable to the tune of ₹ 9,86,874.18 as on 31-3-2008 and ₹ 12,33,772.00 as on 31-3-2007 as per audited financial statements submitted by the assessee . The assessee’s total owned interest free funds being owned capital is ₹ .....

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as at 31- 03-2007 , whereby it could be seen that interest free funds of ₹ 34.89 lacs owned by the assessee are much more than the amount of ₹ 12.34 lacs advanced by the assessee as interest free loans and the presumption as laid down by the judgments of jurisdictional Hon’ble High Court of Bombay in the case of CIT v. Reliance Utilities and Power Limited (2009 (1) TMI 4 - BOMBAY HIGH COURT ) and CIT v. HDFC Bank Limited (2014 (8) TMI 119 - BOMBAY HIGH COURT) shall squarely apply tha .....

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countant Member This appeal, filed by the assessee, being ITA No. 579/Mum/2012, is directed against the order dated 02-12-2011 passed by learned Commissioner of Income Tax (Appeals)- 23, Mumbai (hereinafter called the CIT(A) ), for the assessment year 2008-09, the appellate proceedings before the CIT(A) arising from the assessment order dated 04-10-2010 passed by the learned assessing officer(hereinafter called the AO ) u/s 143(3) of the Income Tax Act,1961(Hereinafter called the Act ). 2. The g .....

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f the I.T. Act, 1961, were applicable to payments made to C.HA for reimbursement of expenses on account of air freight at ₹ 67,297/- and balance service Charges ₹ 4,222/-. Reasons assigned for the impugned addition/disallowance are wrong and contrary to the provisions of the Act read with judicial precedents. 04. The learned lower authorities have grossly erred in making/upholding an addition of ₹ 118,000/- on account of notional interest, even though, no provision for assessin .....

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during the year are from house property income, business and other sources. The A.O. observed from the details furnished by the assessee that she has made payment to the C & F agent of ₹ 71,519/- but the assessee has not deducted tax at source on the payment made to C & F agent which is covered by the provisions of section 194C of the Act. The assessee was specifically asked as to why the expenditure incurred on payment to C & F agent should not be disallowed u/s 40(a)(ia) of .....

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passed by the AO u/s. 143(3) of the Act. 4. Aggrieved by the assessment order dated 04-10-2010 passed by the AO u/s. 143(3) of the Act, the assessee preferred an appeal before the CIT(A). 5. Before the CIT(A), the assessee submitted that the payment for the bill of the freight and forwarding charges was paid to a shipping agent which payment was made on 16-01-2008. Thus, as at the end of the financial year, nothing is payable and / or outstanding. The assessee submitted that the provisions of s .....

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97/- relates to reimbursement of expenses being air freight and insurance incurred by the shipping agent and ₹ 4,222/- is the amount attributable to shipping agent charges and under the provisions of section 194C of the Act, what is intended to tax is only that portion of the payment which has some incidence of income. The assessee relied on the decision of the Hon ble Bombay High Court in the case of CIT v. Siemens Aktiongesellschaft 2008 TIOL 569 (Bom.HC) and ITAT Mumbai decision in Util .....

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licable to reimbursement of expenses. The decision in Jaipur Vidyut Vitran Nigam Limited(supra) is given in the context of payment of transmission charges, wheeling and SLDC charges to an electricity transmission company with whom the tax-payer, an electricity distribution company entered into a transmission service agreement and the main finding was that there is no liability to deduct tax at source on transmission/ wheeling/ SLDC charges u/s.194J and 194C of the Act and the observation of the .....

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e context of DTAA, thus, section 40(a)(ia) of the Act is applicable and accordingly A.O. s action was confirmed, vide orders dated 02-12-2011. 6. Aggrieved by the orders dated 02-12-2011 of the CIT(A), the assessee is in appeal before us. 7. The ld. Counsel for the assessee submitted that there was a total amount of ₹ 71,519/- paid by the assessee to C & F agent , out of which reimbursement of air freight charges of ₹ 65021/- for export consignment to Lusaka(Zambia) from India an .....

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S. Natesa Iyer & Co. The assessee submitted copy of bill of M/s S. Natesa Iyer & Co. dated 12-1-2008 and submitted that no tax is to be deducted at source as the amount payable to M/s S. Natesa Iyer & Co. is only ₹ 4222/- towards their agency charges for handling export shipment consignment which is below the threshold limit as prescribed u/s 194C of the Act and no tax need to be deducted at source as per provisions of Section 194C of the Act. The ld. Counsel relied on the deci .....

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icate, (2015)113 DTR 311 (AP) and ITATVisakhapatnam -Special Bench in the case of Merlyn Shipping & Transporters v. Addl. CIT, (2012) 16 ITR (Trib) 1 (Visakhapatnam, [S.B.] . 8. The ld. D.R., on the other hand, strongly supported the orders of CIT(A). 9. We have heard the rival contentions and also perused the material available on record. We have observed that reimbursement of expenses being air freight of ₹ 65021/- for export consignment sent to Lusaka(Zambia) , insurance charges for .....

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licability of provisions with respect to tax deducted at source with respect to air freight on export consignment in CIT v. Opera Global Private Limited (supra) as under: 4. Section 194C was inserted by Finance Act, 1972 to mandate deduction of tax at source, on payments made to a contractor for carrying out any work including supply of labour. Tax was to be deducted by the stipulated payer at the rate of 1 or 2 per cent. 5. The expression 'carrying out any work' or the word 'work .....

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carrying out any work but had procured money for fixed deposits. The broker worked for himself and got paid. 6. In Birla Cement Works v. CBDT, [2001] 248 ITR 216/115 Taxman 359 (SC) question arose before the Supreme Court, whether deduction under Section 194C was mandated when payment was made to transporters and whether the said payments were for "carrying out any work". It was held that the expression 'any work' was wider and should not be confined to a mere 'work contrac .....

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ying any sum to any resident (hereinafter in this section referred to as the contractor) for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and- (a) the Central Government or any State Government ; or (b) any local authority ; or (c) any corporation established by or under a Central, State or Provincial Act ; or (d) any company ; or (e) any co-operative society ; or (f) any authority, constituted in India by or under .....

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tution declared to be a university under section 3 of the University Grants Commission Act, 1956 (3 of 1956) ; or (j) any firm ; or (k) any individual or a Hindu undivided family, or an association of persons or a body of individuals, whether incorporated or not, other than those falling under any of the preceding clauses whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 4 .....

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rovided that no individual or a Hindu undivided family shall be liable to deduct income-tax on the sum credited or paid to the account of the contractor where such sum is credited or paid exclusively for personal purposes of such individual or any member of Hindu undivided family. (2) Any person (being a contractor and not being an individual or a Hindu undivided family), responsible for paying any sum to any resident (hereafter in this section referred to as the sub-contractor) in pursuance of .....

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such sum as income-tax on income comprised therein. ** ** ** Explanation I.-For the purposes of sub-section (2), the expression "contractor" shall also include a contractor who is carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and the Government of a foreign State or a Foreign enterprise or any association or body established outside India. ** ** ** Explanation III.-For the purposes of this section, the ex .....

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not exceed twenty thousand rupees : Provided that where the aggregate of the amounts of such sums credited or paid or likely to be credited or paid during the financial year exceeds fifty thousand rupees, the person responsible for paying such sums referred to in sub-section (1) or, as the case may be, sub-section (2) shall be liable to deduct income-tax under this section : ** ** **" 8. Explanation III in clause (c) states that the "work", for the purpose of Section 194C, shall a .....

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aid circular read as under: "Question 6: Whether payment under a contract for carriage of goods or passengers by any mode of transport would include payment made to a travel agent for purchase of a ticket or payment made to a clearing and forwarding agent for carriage of goods? Answer : The payments made to a travel agent or an airline for purchase of a ticket for travel would not be subjected to tax deduction at source as the privity of the contract is between the individual passenger and .....

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nt/clearing and forwarding agent would be required to deduct tax at source from the sum payable by the agent to an airline or other carrier of goods or passengers? Answer : The travel agent, issuing tickets on behalf of the airlines for travel of individual passengers, would not be required to deduct tax at source as he acts on behalf of the airlines. The position of clearing and forwarding agents is different. They act as independent contractors. Any payment made to them would, hence, be liable .....

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for carriage of goods would be subjected to tax at source under Section 194C of the Act. A perusal of answer to question No.7 clarifies that travel agents issuing tickets on behalf of airlines for travel of individual persons would not be required to deduct tax at source, but in case of clearing and forwarding agents, who act as independent contractors, payment made to them would be liable for deduction of tax at source. 11. The Tribunal in the orders has held that the bills, subject matter of .....

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goods as the respondent assessee was an exporter and the consignor. Delhi High Court in CIT v. Hardarshan Singh [2013] 350 ITR 427/216 Taxman 283/30 taxmann.com 245, has held that on applying principle of privity of contract, mere reimbursement of charges would not require deduction of taxes at source. 12. The findings of the Tribunal being factual and the Revenue having preferred these appeals challenging the said findings, by the order dated 23rd September, 2013 passed in ITA 359/2012, it was .....

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ioned that the expenses amounting to ₹ 1240288/- were claimed under the head clearing and forwarding and list of 31 parties was furnished. Payments to 30 parties were below the amount on which TDS was required to be deducted. In respect of one party, the assessee had furnished a certificate issued by the Department that no TDS was required to be deducted. The assessing officer thereby did not make any disallowance on the said payments. The submission of the respondent is that addition S .....

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l file an affidavit of the Commissioner that the amounts mentioned in paragraph 8 as per the assessment order and the records, includes the commission or service charges other than freight charges. The said affidavit will be filed within a period of two weeks. Documents filed by the appellant are returned to be filed along with affidavit. The Commissioner will also state whether the invoices with regard to ₹ 1240288/- were on record and filed before the assessing officer and it will be sta .....

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sement of air freight charges paid to airlines and did not include work/service charges paid to the clearing and forwarding agents, which were to the tune of ₹ 12,40,288/- on which TDS had been deducted. 14. Commissioner of Income Tax has filed affidavit dated 21st December, 2013, in which he has accepted that 14 out of 15 parties mentioned in paragraph 8 of the assessment order also find mention in paragraph 9. Paragraph 9 refers to of 31 parties and relates to payment of ₹ 12,40,28 .....

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e Tax to file an affidavit in ITA 359/2012. In the affidavit of the Commissioner of Income tax, relating to Assessment Year 2006-07, it is stated that 41 parties had raised invoices on account of freight charges and 31 parties on account of clearing and forwarding charges 14 parties were common. Certain invoices were not available on record. 16. We are not inclined to accept prayer of counsel for the revenue of remand, on issue relating to matter of facts. Assessment years are 5 and 7 years old. .....

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ng is incorrect or perverse. 18. In view of the factual findings recorded by the Tribunal, affirming the decision of the Commissioner of Income Tax (Appeals), we hold that there is no merit in the present appeals and the same are dismissed. Thus, payment of reimbursement of air freight of ₹ 65,021/- , insurance charges of ₹ 2246/- and postage charges of ₹ 30/- to C & F agent S. Natesa Iyer and Company towards reimbursement of expenses on export consignment being sent from I .....

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expenses of ₹ 67297/- paid by the assessee to S. Natesa Iyer and company for reimbursement of air freight , insurance charges and postal charges in connection with export consignment shipped from India to Lusaka(Zambia) cannot be disallowed by invoking provisions of Section 40(a)(ia) of the Act as there is no liability on the assessee to deduct tax at source u/s 194C of the Act on these reimbursement of expenses paid by the assessee company. However, payment of ₹ 4,222/- which was pa .....

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71,5119/- made by the A.O. and confirmed by the CIT(A) is ordered to be deleted. This ground of the appeal raised by the assessee is allowed. We order accordingly. 10. The second ground is with respect to upholding of notional interest amounting to ₹ 118,000/- as income of the assessee. It was observed by the A.O. that the assessee had taken a loan from 5 parties, on which the assessee was paying interest. The assessee had also given loans to two parties, i.e., Shri O.P. Mehta and Smt Vim .....

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f the assessee was not found acceptable and rejected by the A.O. The A.O. held that any prudent business man when he himself is paying interest on loans which are interest bearing should have charged interest from the persons to whom loans have been given. The A.O. accordingly worked out disallowance at ₹ 1,18,286/- as notional interest income and added the same to the total income of the assessee under the head income from other sources , vide assessment order dated 04-10-2010 passed by t .....

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he A.O. that the said loan was given by the assessee out of own resources and no interest-bearing funds were diverted for advancing these interest free loans. The assessee submitted that after verification of past records and financial statements of the assessee, the A.O. was satisfied that no interest-bearing funds have been diverted for giving these interest-free advances which is evident from the fact that no disallowance out of interest outflow has been made by him. The A.O., however, was of .....

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ssee relied on the decision of the Tribunal in the case of ITO v. C.J. Rathod 11 ITR (Tribunal) 252 (Ahmedabad), Ashok Bros v. ITO 76 TTJ (Hyd) 427. The CIT(A) after considering the submission and the A.O. s order observed that the A.O. has made addition estimating interest chargeable on the loans given to parties from whom the assessee had not charged any interest. While no addition can be made on the basis of notional interest per se, however, it is also the case that while interest on borrowi .....

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ommon pool of funds , proportionate disallowance can be made. The CIT(A) also referred to the judgment of Hon ble Punjab and Haryana High Court decision in CIT v. Abhishek Industries Limited, (2006) 286 ITR 1 (P & H Hc), wherein it has been held that there should be a nexus of use of borrowed funds for the purpose of business to claim deduction u/s 36(1)(iii) of the Act . The CIT(A) held that it is thus for the assessee to prove that funds borrowed for business were utilized for the purpose .....

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est have been disallowed by the A.O. to the tune of ₹ 1,18,286/-. The ld counsel contended that the loans have been given to the employees and his wife for buying a piece of land and constructing building there-on . The employees are relatives of the assessee. He submitted that the capital of the assessee is around ₹ 41.94 lacks while the loan have been granted to the tune of ₹ 9,86,874/- as on 31-3-2008 and the loans outstanding were of ₹ 12,33,772 as on 31.3.2007. The a .....

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also relied upon the following decisions:- 1. DCIT v. ANANDA MARAKALA, 150 ITD 323 (BANG). 2. CIT v. GAUTAM MOTORS, 45 DTR 89(DEL). 3. RELIANCE INDUSTRIES LTD v. ADDL CIT, 79 DTR 315 (MUM TRIB). 4. TATA CHEMICALS LTD v. ACIT, 138 ITD 458 (MUM) 5. VENUS RECORDS & TAPES (P) LTD. v ADDL CIT, 152 TT J (MUM) 1. 6. PRANIK SHIPPING & SEVICES PVT LTD v ACIT, 70 DTR 17(MUM TRIB). 7. GUPTA GLOBAL EXIM P LTD v ACIT , 18 TAXMANN.COM 255. 8. MADHU INDUSTRIES LTD v. ITO, 1132 TTJ 233. (AHD). 9. YAMUN .....

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