TMI Blog2017 (9) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... t committed error in allowing the appeal of the assessee. The further contention by the department if it is reimbursement, it will be open for the department to examine the matter on merits and take independent view considering law prevailing on the date on which situation arises. Unexplained investment u/s 69 - Held that:- The facts of the case were rightly appreciated by the tribunal and the tribunal has not committed serious error in taking into account the stock value on the date and subsequently carried forward. - Revenue appeal dismissed - D.B. Income Tax Appeal No. 78/2016 - - - Dated:- 5-9-2017 - Mr. K.S. Jhaveri And Mr. Inderjeet Singh JJ. For the Appellant(s) : Mr. Sameer Jain For the Respondent(s) : Mr. Sanjay Jhanwar with Ms. Archana JUDGMENT 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby Tribunal has partly allowed the appeal of the assessee. 2. This court while admitting the appeal on 4.10.2016 framed following substantial question of law:- 1. Whether the Tribunal is justified in law in allowing the deduction u/a 10BA on Income of ₹ 7,80,143/- ignoring the material fact, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed over his claim from Section 80IB to section 10BA, though there was no noticeable change in the nature of assessee s business. No new undertaking was set up by the assessee in A.Y. 2006-07 to 2009-10. As is evident from the sequence of events, the same business at the same place and with same machinery had been going on for several years, in the name of M/s. Indian Art Palace. 4. It is contended that issue no.1 is squarely covered by the decision of this court in ITA No.113/2012 114/2012 (CIT Jaipur- III vs. Manoj Kumar Johari) decided on 29.8.2017 wherein it has been held as under:- By way of the appeals, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeals. This Court while admitting the matter framed the following question of law:- In DBITA No. 113/2012 In DBITA No. 114/2012 Whether the Tribunal was justified in the facts and circumstances in allowing relief of exemption under Section 10BA of the Act even when the substanttive and material conditions which was pre-requisite were not fulfilled, on the basis of appellants own case in A.Y. 2005-2006 which was based on different point and is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee against the department. 4.2 In view of the above, the issue no.1 is answered in favour of the assessee and against the department. 4.3 Regarding issue no.2, Mr. Jain has taken us to the order of the AO in para no.8 which reads as under:- 8. Disallowance U/s 40(a)(ia):- Assessee had filed the details of the payment made to M/s Sachin Cargo Movers with letter dated 20.12.2011. Perusal of such details shows tha substantial amount was paid to them as transport charges. Total of such payments for transport is ₹ 43,21,000/-. Assessee was required to deduct tax at source on such payments, however no tax was deducted at source. On being asked, it is explained that assessee did not pay any transportation charges to any transporter directly under this head and the assessee only reimburse the actual expenditure incurred by Sachin Cargo on the behalf of assessee and hence TDS provisions were not attracted on these payments as per circular No. 715 dated 08.08.1995. The explanation filed by assessee is not acceptable because assessee has not filed any details or evidence to show that M/s Sachin Cargo had passed on the entire transport charges to transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the tribunal has committed serious error in allowing the appeal of the assessee observing as under:- 4.2 Ld. Counsel for the assessee contends that the assessee paid no transport charges. The assessee appointed an agent M/s Sachin Cargo Movers, B-56, Model Town, Jagatpura Road, Jaipur for shipping the goods from factory site to inland port for onwards export out of India. The agent reimburses all expenses made by it therein and raises a bill there for which assessee reimbursed. The total charges paid are ₹ 1,23,24,384.26 which are debited in P L A/c as C F charges. The breakup of charges are as under:- (I) THC etc. charges 42,56,773.49 (ii) ICD/cfs Inland haulage charges 21,81,974.23 (iii) Transporation Handling charges 43,21,000.00 (iv) Fumigation charges 3,01,746.00 (v) GSP charges 74,400.00 (vi) Sachin Cargo Agency charges 2,66,500.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s own case for the assessment year 2008-09 by observing as under:- 10.6 We have heard the rival contentions and perused the materials available on record. In our considered view the nature of between assessee M/s. Sachin Cargo Movers, C F Agent, was for reimbursement of expenses. Besides, the TDS thereon has been deducted by the agent as mentioned above. By now, it has been settled by various Courts that reimbursement of expenses are not liable for deduction u/s 40(a)(ia) of the Act. In any case the agent has deducted the TDS a fact not disputed by revenue, in this eventuality also the case laws cited by the ld. AR supports this proposition. In view thereof, we hold that the expenses paid to M/s. Sachin Cargo Movers, C F Agent, being for reimbursement of expenses cannot be disallowed u/s 40(a)(ia) of the Act. Thus Ground No. 3 of the assessee is allowed. 4.6 He has also taken us to issue no.3 and contended that the finding recorded by tribunal with regard to Section 69 is also contrary to law and required to be reversed inasmuch as stock which was closing for the previous year, the same has been changed in the profit and loss account. 4.7 Counsel for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or paid to the account of the contractor where such sum is credited or paid exclusively for personal purposes of such individual or any member of Hindu undivided family. (5) No deduction shall be made from the amount of any sum credited or paid or likely to be credited or paid to the account of, or to, the contractor, if such sum does not exceed 86[thirty] thousand rupees 194J. (1) Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident any sum by way of - (a) fees for professional services, or (b) fees for technical services26, 27[or] [(ba) any remuneration or fees or commission by whatever name called, other than those on which tax is deductible under section 192, to a director of a company, or] [(c) royalty, or (d) any sum referred to in clause (va) of section 28,]shall, at the time of credit of such sum to the account of the payee or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to 29[ten] per cent of such sum as income-tax on income comprised therein 3. The assessee was bound to deduct TDS in lieu of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
