TMI Blog2007 (9) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) was not justified in confirming the same. 2. The brief facts of the case are that during the year the assessee acted as a transporting agent. She arranged for supply of trucks from the truck operators/owners as per the requirement of the consignees. The assessee charged commission from the truck operators/owners where the freight payment was made by the consignee directly to the truck operator/ owner. The consignee deducted the tax in respect of the freight paid and issued the TDS certificates in the name of the assessee. In view of the AO the TDS deducted belonged to the truck operators/owner as having been deducted out of their freight payment yet the certificate is issued in the name of the assessee on the basis of which it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sources and has offered for assessment. He held that as the assessee has failed to comply with the requirements of s. 203 in its letter and spirits it will not justify the action of the assessee to take undue advantage by making an unlawful claim. He noted that in order to curb such kind of tendency CBDT has issued Circular No. 6 of 2006 dt. 23rd June, 2006 [(2006) 203 CTR (St) 21] wherein a duty is cast on persons deducting the tax to issue certificate in the name of transporter only failing which penalty has been prescribed under s. 272A(2)(g) of the Act. Hence, he held that the assessee was not entitled for any credit of tax deducted out of ₹ 62,89,966. 4. The learned Authorised Representative of the assessee reiterated his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the assessee. We find that it is not in dispute in the instant case that a sum of ₹ 1,32,232 was deducted from the freight payments as TDS as per provisions of s. 194C of the Act and were paid to the credit of Central Government. The claim of the assessee that as the relevant TDS certificates were in her name, the TDS amount was borne by her and no part of the same was deducted from the income of the truck operator/owner was also not disputed by the Department by bringing any material on record. It is also not in dispute that the amount in question relates to the year under consideration and the income earned by the assessee in respect of the transaction covered by the TDS certificates was disclosed by the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the difference between the aforesaid two amounts as her income as because the payments of freight were directly collected by the truck drivers. In our considered opinion, this is simply a matter of presentation of accounts and merely for not presenting in the accounts, the amount of the gross freight and then freight paid to truck operator/owner separately, the claim of TDS cannot be denied to the assessee and more so in a proceeding under s. 154 of the Act under which only an apparent mistake can be rectified. A matter in respect of which two opinions can reasonably be formed is certainly outside the jurisdiction of s. 154 of the Act. Considering the full facts and circumstances of the case, in our considered view, the withdrawing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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