TMI Blog2018 (2) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... rebut the same was shifted to the AO. He, however, failed to discharge the said onus and proceeded to make a disallowance under section 40(a)(ia) on the ground that the relevant freight charges were finally debited in the assessee’s account. In these facts and circumstances, if the matter is restored to the file of the Assessing Officer for giving an opportunity to the Assessing Officer to rebut the stand of the assessee as sought by the ld. D.R., it will result in giving a second innings to the Assessing Officer, which is not permissible. The assessee that the transport charges were initially paid by the suppliers and the same were subsequently reimbursed by the assessee is duly supported by the relevant documentary evidence in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidual, who is engaged in the business of wholesale trading of pulses and other cereals. The return of income for the year under consideration was filed by him on 29.09.2011 declaring total income of ₹ 11,91,052/-. In the profit loss a/c filed along with the said return, a sum of ₹ 42,29,997/- was debited by the assessee on account of carriage inward expenses. During the course of assessment proceedings, the said expenses were verified by the Assessing Officer and on such verification, he found that the assessee was liable to deduct tax at source from the payments made on account of carriage inward charges and transport charges aggregating to ₹ 35,64,445/- as per the provisions of section 194C. Since the assessee had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove it. So, if an AO believes that a particular section is to be invoked because it is applicable in any case, then the onus of proving the applicability of that section lies with the AO. This is not the case of an assessee having to prove the elements of his return of income and his balance sheets where the onus lies at the door of the assessee who has made these assertions. In case, the AO disagrees with any of the elements of the returned income in the sense of the applicability, in the opinion of the AO, of any particular section or sections of the Act, then the responsibility of proving that the said section is applicable beyond doubt, lies with the AO. In the instant case, the appellant has submitted a set of books of account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leness and therefore credibility in that since there are several sellers in far flung areas who would be sending their goods, definitely at times of selling of such commodities - since these sales are seasonal - when there would be rush by all purchasers to acquire these commodities - all at the same time, it would be reasonable to expect that the seller would be the ones who would pick up any transporter then available to dispatch the goods. The appellant, since he is getting these goods from several sellers, cannot be expected to have contracts with transporters in all the cases. The preponderance of probability is towards the sellers appointing the transporters. This has also been borne out by the fact that in some cases, it was found by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. has submitted that the disallowance made by the Assessing Officer under section 40(a)(ia) on account of transport and carriage inward charges is deleted by the ld. CIT(Appeals) on the ground that there was a failure of the Assessing Officer to dislodge the case made out by the assessee that the provisions of section 194C were not applicable in his case. He has contended that if at all there was such failure on the part of the Assessing Officer, the ld. CIT(Appeals) should have given an opportunity to the Assessing Officer to establish that there was a contractual relationship between the assessee and the transporters attracting the provisions of section 194C. We are unable to accept this contention of the ld. D.R. As rightly submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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