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TMI Blog2015 (9) TMI 1491X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- paid to L & T Finance Ltd. 3.1. The Learned AR stated that the assessee is engaged in the business of carrying out transportation of coal handling and unloading and excavation job on contract basis. He informed that during the course of hearing, an addition u/s 40(a)(ia) of the act was made by the Learned AO towards non deduction of tax at source for payment of machinery hire charges to L & T Finance Ltd. He further argued that the entire sums have been paid before the end of the previous year. He prayed before us that the second proviso introduced in section 40(a)(ia) of the Act is to be construed as retrospective in operation and accordingly prayed for setting aside of this issue to the file of the Learned AO for verification of the facts whether the payee had shown the said payment as his income in its return of income and paid taxes thereon. In support of his contentions, he placed reliance on the latest decision of the Hon'ble Delhi High Court in the case of CIT vs Ansal Land Mark Township P Ltd in ITA No. 160 / 2015 & 161 / 2015 dated 26.8.2015. In response to this, the Learned DR fairly conceded to the decision quoted by the Learned AR and agreed for set aside to Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive in nature. The High Court affirmed the ratio laid down by The Agra Tribunal and held that said proviso is declaratory and curative in nature and has retrospective effect from 1st April, 2005. Respectfully following the said decision, the ground no. 2.2 is allowed in favour of the assessee. However, this ground becomes infructuous in view of our decision rendered for Ground No. 2.1." Accordingly, we deem it fit and appropriate , in the interest of justice and fair play, to set aside this issue to the file of the Learned AO to examine the issue in the light of the decision rendered by the Hon'ble Delhi High Court as stated supra and decide the issue in accordance with law. The assessee is also directed to provide necessary evidences and documents to prove that the payee had duly disclosed the subject mentioned receipt of machinery hire charges in its return and paid the due taxes thereon. If the same is proved, the assessee should be given relief. Hence the cross objection raised by the assessee is allowed for statistical purposes. Revenue Appeal in ITA No. 1591/Kol/2011 4. The first issue to be decided in this appeal is allowability of higher rate of depreciation amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded that when the dumpers are given on hire, the assessee would be entitled for depreciation at the rate of 30% . However, that is not the correct interpretation of law, because if the assessee is transporting the goods of other pesons , then also the dumper is given on hire and under such circumstances, in view of the decision of the Hon'ble Madhyapradesh High Court in the case of Anup Chand & Co. reported in 239 ITR 466 the assessee was entitled for higher rate of depreciation as the vehicles are to be considered as being given on hire for transportation of goods of other persons. The assessee was not transporting its own goods but the goods of other persons and deriving hire charges. By considering the totality of the facts and circumstances, we do not find any infirmity in the order of Ld.CIT(Appeals) on this count. Resultantly, Ground No. 1 of Revenue's appeal is dismissed." In view of the aforesaid facts and circumstances and respectfully following the coordinate bench decision in the case of Avinash Transport as cited supra, we hold that the assessee is entitled for depreciation on dumpers and pay loaders at the higher rate and accordingly we are not inclined to inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly because reply to a query under Section 133(6) has not been received it cannot be presume that a trade creditor has no creditworthiness. As stated above I do not find the facts of the cases cited by the A.O. to be applicable to the facts of the appellant's case. On the other hand reference can be made here to the decision of the Hon'ble Allahabad High Court in the case of Pancham Das Jain [205 CTR 444] wherein, on similar facts, addition of trade creditors has been directed to be deleted. Accordingly, the addition made by the A.O. is directed to be deleted. This ground of appeal is allowed." Aggrieved, the revenue is in appeal before us on the following ground:- "2. That on the facts and in the circumstances of the case, the Learned CIT(Appeal), erred in deleting the addition of Rs. 7,96,400/- as a result of disallowances made on account of Closing credit balance in respect of Bijay Hardware Stores." 5.2. The Learned DR vehemently supported the order of the Learned AO. In response to this, the Learned AR stated that the Learned CITA's order requires no interference as the assessee had only purchased certain goods from Bijay Hardware Stores and trade creditors could not be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is as to whether the Learned CITA is justified in deleting the addition of Rs. 13,37,234/- made towards excess payment of dumper and payloader charges and Rs. 1,00,000/- towards excess expenditure incurred on general account. 6.1. The brief facts of this issue is that the Learned AO found that the net income from transporting by dumper and payloader, loading and unloading charges of the assessee had increased from Rs. 591 crores to Rs. 13.32 crores resulting in an increase of 125.39% whereas the expenditure towards salaries and wages have increased by 275.37% repairs and maintenance had increased by 143.07% and dumper payloader hire charges had increased by 702%. The Learned AO also found that during the assessment year under appeal, a sum of Rs. 1.12 crores was paid to Mr. Arbind Singh who is a related party in terms of section 40A(2)(b) of the Act which admittedly constitutes 11.89% of total payment of dumper and payloader hire charges. Accordingly, he proceeded to disallow a sum of Rs. 13,37,234/- (computed at 11.89% of Rs. 1,12,45,998) and a sum of Rs. 1,00,000/- on an adhoc basis to take care of the unjustified increase in other expenditure during the assessment year ..... 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