TMI Blog2017 (5) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... been reversed by C.I.T. (A) and Tribunal. These are concurrent findings of fact and when vouchers otherwise were verifiable, we find no reason to take an otherwise view in the matter. The question formulated above is answered against appellant, i.e. Revenue. - Income Tax Appeal No. 9 of 2013 - - - Dated:- 1-5-2017 - Hon'ble Sudhir Agarwal And Hon'ble Virendra Kumar-II, JJ. For the Appellant : D. D. Chopra For the Respondent : Ashish Raj Shukla, Illigible, R. B. Shukla ORDER 1. Heard Shri Manish Mishra, for appellant and Shri R.B. Shukla, learned counsel for respondent. 2. This is an appeal filed under Section 260-A of Income Tax Act, 1961 (hereinafter referred to as Act 1961 ) arising from judgment and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 4. The A.O. has further observed that since Assessee is only a transporter and not a trader, there is only issue of freight/transportation and plea of freight becoming a part of cost of purchase does not arise. 5. On appeal preferred by Assessee, Commissioner of Income Tax (Appeal) (hereinafter referred to as ''(C.I.T.(A))' called upon Assessee to produce certain copies of challans and after verifying thereof found that Section 194-C is not at all attracted. The findings recorded by C.I.T.(A) read as under:- I have carefully considered the submissions of the appellant and gone through the documents placed in the paper book submitted to me. I have also gone through the finding and the reasoning given by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract of transportation/carriage of goods on behalf of the Principals. For the fulfillment of its transportation commitment, the appellant company besides using its own trucks and lorries is also hiring trucks and lorries from other owners or directly from the drivers available in the market or through brokers on the random basis as and when required ,on freight to freight basis. In such a case of hiring from outside, the responsibility of successful completion of transportation work is on the appellant company vis-a-vis its principals. The appellant has paid lorry hire charges to these transporters or truck owners directly, without there being any written or oral contract, vis-a-vis its principals. The payment of lorry hire charges to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Principals. There has to be something on record to show that there was some kind of oral or written agreement to carry out work along with the responsibility and liability which is associated with the contract with the individual truck owners and drivers taken from the market on random basis. 7.(3)(iv) The observation of the Assessing Officer that the assessee will not prefer a written contract if is perceived as detrimental to his/its business functions and in the case there does exist an oral contract, it becomes matter of absolute discretion of the two consenting parties and nothing can be brought on record to prove such a contract , is an opinion devoid of any consideration in Law. No enquiries have been made with the said pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961. Once this is an accepted fact the disallowance under section 40(a)9ia) of the Income Tax Act, 1961 cannot be made. 6. Tribunal has affirmed the aforesaid findings in appeal preferred by Revenue and rejecting Revenue's appeal on this ground, has recorded a finding that Section 194-C does not apply and in absence of anything to show otherwise, the said findings of fact are confirmed. 7. Before this Court also, learned counsel for the appellant could not show that A.O. while taking a view against Assessee by reference to Section 194-C recorded its findings based on any evidence whatsoever and we find that it was only on assumption. It is for this reason A.O.'s findings have been reversed by C.I.T. (A) and Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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