TMI Blog2016 (5) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... they are required to be examined. Before us, neither any paper book has been filed by the assessee nor any one has appeared in spite of service of notice. Therefore, we do not have any material on the strength of that we could dispute the finding of the facts recorded by the CIT(A). - Decided against assessee. - ITA.No.1839/Ahd/2012, ITA.No.2177/Ahd/2012 - - - Dated:- 7-4-2016 - SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER For The Assessee : None For The Revenue : Shri Narendra Singh, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The assessee and the Revenue are in cross-appeal against the order of the ld.CIT(A) dated 2-7-2012 passed for the Asstt.Year 2008-09. 2. In response to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 71,51,715/- to various sub-contractors exceeding ₹ 50,000/- during the year. The ld.AO has noted that the break-up of these payments in para-3 of the assessment order. The ld.AO has further observed that the assessee-firm failed to deduct TDS under section 194C of the Income Tax Act, therefore, it not entitled for the expenses of ₹ 71,51,715/-. After hearing the assessee, the ld.AO has disallowed the claim of the assessee. 6. Dissatisfied with the order of the ld.AO, the assessee carried the matter in appeal before the CIT(A). The assessee had raised various arguments including that it is not liable to deduct TDS because each contract is to be treated as sub-contract for hiring the transporter for which payments have been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of M/s. Merilyn Shipping Transports vs. ACIT (supra) lays down correct law? The Hon ble High Court has answered both these questions in favour of the Revenue. The observation of the Hon ble High Court contained in page no.39 and 40 of the judgment reads as under: 39. We answer the questions as under:- Question (1) in the negative i.e. in favour of the Revenue and against the assessees. Question (2) also in the negative i.e. in favour of the Revenue and against the assessees. 40. All Tax Appeals are allowed. Decisions of the Tribunal under challenge are reversed. In the earlier portion of the judgment, we had recorded that the Tribunal in all cases had proceeded only on this short basis without addressing oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned on GRs which are duly agreed and signed by party/person of truck owner utilized by appellant. It is only verification of this all important and meaningful document, it can be determined whether the appellant was having subcontractor relationship with these parties as per the ratio of Hon'ble supreme court judgment in the case of Associated cement (supra). As per clause and unambiguous word any work used in section 194 C of the Act, the liability to deduct IDS fastens on the appellant even if the contract is not oral or written but implied. But, the appellant except submitting the self serving contention with the help of ratio of various case laws preclude the verification of facts. As per the verification of A.O. at para 3 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return of income and payment of taxes as contended. It is therefore, appellant contention for non applicability of provision of section 194 C r.w.s. 40 (a)(ia) of the IT Act is rejected since not supported with documentary evidences and case relied on are treated as not applicable in the case of appellant. The A.O. 's action of disallowance u/s 40(a)(ia) of the Act of the payments made by appellant in excess of ₹ 50,000 in aggregate as discussed in earlier para are therefore upheld. But, the appellant in written submission contended that the applicability of disallowance u/s 40 (a)(ia)of the Act is applied only to the amounts remained payable as on 31st March of previous year in view of Hon'ble ITAT special bench order in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91,800 50,000 41,800 Tejas Roadways 81,500 10,000 71,500 7,072,115 5,165,500 1,906,615 I am inclined to accept this contention of the appellant following the ratio of Hon'ble special bench of ITAT. It is in this regards, the total disallowances which can be upheld being sustainable u/s 40(a)(ia) of the Act is ₹ 19,06,615 only. The disallowance and addition to this extent is therefore confirmed. For the balance amount i.e. ₹ 51,65,500 (70,72,115-19,06,615), the A.O. is directed to verify from case record i.e. audited P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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