TMI Blog2016 (10) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... w of above, we find that as no part of the contract of the assessee was transferred to the lorry owners / sub-contractors. The role of the lorry owners was very limited to the extent of carriage of goods without any other liability. Therefore, they cannot be considered as subs-contractors of the assessee. Considering the facts and circumstances and cited case law, we reverse the orders of authorities below. - Decided in favour of assessee. - ITA No.1670/Kol /2009 - - - Dated:- 26-8-2016 - For The Appellant Shri S.M.Surana, Advocate For The Respondent Shri Debasish Banerjee, JCIT-SR-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is arising out of order of Commissioner of Income Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee is that ld. CIT(A) erred in confirming the order of the AO by sustaining the disallowance of transportation charges paid by the assessee without deduction of TDS amounting to ₹ 52,82,320.00 only. 3. The facts in brief are that the assessee has paid transportation charges to various parties during the year. The AO during assessment proceedings observed that assessee on certain payment to the parties deducted the TDS but at the same time on certain payment to the same party the TDS was not deducted whereas the payment was more than ₹ 50,000/- in a year. The assessee could not produce any documents as an evidence as to why this amount should not be disallowed for the violation of provisions of sec 40(a)(ia) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en on hire. Ld. AR submitted that Ld. CIT(A) has assumed or has held that the assessee ought to have deducted tax u/s. 194C(2) and on that basis he has confirmed the addition made by AO except allowing a minor relief. But he has simply presumed that parties who have placed trailers on hire, are sub-contractors of assessee without an iota of evidence as to existence of any oral or written contract on record. Ld. AR stated that the point was raised as to why in case of same party TDS has been deducted on part of payment and not on full payment as detailed by AO in is assessment order in form of a chart and the fact no TDs was deductible on any amount and the reason for deducting on part and not on full payment is the lack of full knowledge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porters at Sl. No. from 4, 5 18 to 26 and 40 to 71 (pages 2 and 3 of the assessment order) the assessee has itself deducted tax at source on some amount but has failed to deduct tax on the remaining amount. This clearly indicates that the assessee is very much aware of the TES provisions but on certain payments the assessee has failed to deduct tax at source and therefore the provisions of Sect. 40(a)(ia) are clearly attracted. Again Ld. DR stated that transportation charges paid by assessee to the transporters may be relatively a small amount as compared to the value of goods transported. It is not possible that the assessee will hand over the goods worth lakhs of rupees to anybody and everybody. In the transportation industry the GR (or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is urged before us that the learned Tribunal ought not to have accepted the judgment and order of the CIT (Appeal) who has quashed the disallowance of deduction of ₹ 41,33,710/- and on account of tax deduction at source. The learned Tribunal has recorded the fact that the department has not been able to bring any material on record to show that the assessee has made the payment to the transporters in pursuance of contract for carriage of goods of the assessee and the question of deduction at source under section 194C does not and cannot arise. In the absence of evidence of payment made by the assessee to the transporters, the assessee cannot be saddled with the liability of deducting tax at source. Before us no other point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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