TMI Blog2017 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as a person in default. Hence, in our opinion, if the recipient of the payment has disclosed the impugned receipt as their income, then the assessee cannot be considered as the assessee in default in terms of sec.201(1) of the Act so as to invoke the provisions of the section 40(a)(i) of the Act. Accordingly, we remit this issue to the file of AO to examine the applicability of the said proviso to Sec.40(a)(i) of the Act and decide accordingly. Therefore, the issue is remitted to the file of AO for fresh consideration. This Ground is partly allowed. Payments made to agents of non-resident ship owners/charters - Disallowance u/s.40(a)(i) - Held that:- In this case Sec.172 only applies and there is no necessity of deduction on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are that the assessee made these payments to various resident parties without deduction of Tax Deduction at Source (TDS). The same was disallowed by the AO by invoking the provisions of the section 40(a)(i) of the Act. At the time of hearing, it was submitted before us that in view of provisions of the section 40(a)(i) of the Act where the recipient of above payments have included the same as income in their return of income and discharged their obligation by duly filing the return of income for relevant to assessment year, the disallowance cannot be made in the hands of assessee. 3.1 We find force in the argument of the ld.A.R. As held by the Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd., reported in 377 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping Corpn. Vs. ITO in 360 ITR 257 (Mad.)cannot be applied. The assessee is merely provides cargo handling and freight forwarding services as evidenced by its declaration in Form 3 CD as Service Sector and further the nature of payments, the quantum of such payments made as number of payments made throughout the year by the assessee to foreign ship owners and agents clearly show that this is only for booking cargo and not for controlling the entire vessel, crew, time and schedule (time charter) as envisaged in Poompuhar Shipping (supra). He submitted the issue may be remitted to the file of AO to examine the above facts and decide accordingly. He also relied on the order of Tribunal in the case of Sical Logistics Ltd., in ITA No.1074/Mds. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II.M/s.Hinudstan Cargo Ltd., M/s.Tiger Logistice (Inia) Ltd. 8.1 M/s.Gordon Woodroffee Logistics Ltd., This company has been rejected by the TPO on the reason that this company has been making persistent loss. However, at the time of hearing, ld.A.R drew our attention to the paper book showing that the assessee incurred loss only in the financial years 2009-10 and 2010-11. However, it made profits in the financial years 2011-12, 2012-13 2013-14. 8.2 We have carefully gone through the above submissions of ld.A.R. As seen from the financial details submitted by ld.A.R, that assessee made loss in Financial years 2009-10 2011-12 and there was a small profit of ₹ 1/- crore in financial year 2009-10. The financial year involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng inventory of commercial vehicles (paper book 2, at page No.137) and the operating expenses related to the same a page 141 of paper book. As per annual report, this company, viz. M/s.NR International Ltd. is into bulk import of coal and having different profile from the assessee which does not carry any inventory and mere handles cargo/books freight in consignments. He submitted that it cannot be compared to the assessee s case. 9.2 On the other hand, ld.D.R submitted that only segmental data was considered for comparison. As such it cannot be rejected. 10. We have heard both the parties and perused the material on record. Though the company is engaged various other business, the TPO considered the data relevant to the Cargo handlin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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