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        <h1>Tribunal decision: Revenue appeal partly allowed, assessee cross-objection dismissed.</h1> <h3>ITO –25(3) Mumbai -400 051 Versus Smt. Ratika P. Khurana Mumbai -400067.</h3> ITO –25(3) Mumbai -400 051 Versus Smt. Ratika P. Khurana Mumbai -400067. - TMI Issues Involved:1. Disallowance under section 40(a)(ia) in respect of freight charges paid to agents of foreign shipping companies.2. Disallowance under section 40(a)(ia) being transport charges.3. Disallowance under section 40(a)(ia) being machinery maintenance charges.4. Disallowance of part of clearing and forwarding expenses under section 40(a)(ia).Issue-wise Detailed Analysis:1. Disallowance under section 40(a)(ia) in respect of freight charges paid to agents of foreign shipping companies:- Facts and Circumstances: The AO disallowed freight charges of Rs. 6,58,588/- paid to agents of foreign shipping companies due to non-deduction of TDS. The CIT(A) deleted the addition, reasoning that section 172 applies to foreign shipping companies, making sections 28 to 43 inapplicable for calculating their business income in India, and the tax on the expenditure was already paid under section 172.- Arguments: The revenue argued that section 172 does not override section 40(a)(ia) and cited a High Court decision supporting this view. The assessee countered by citing a Tribunal decision and a Supreme Court judgment indicating that TDS is not required if the recipient has already paid the tax.- Tribunal's Findings: The Tribunal noted that CBDT Circulars are binding on tax authorities but not on courts. It emphasized that Supreme Court and High Court decisions prevail over circulars. The Tribunal held that the benefit of the payee having paid tax on such income is available only when the payee is a resident. Since the payee in this case was a non-resident, the Tribunal restored the AO's disallowance.2. Disallowance under section 40(a)(ia) being transport charges:- Facts and Circumstances: The AO disallowed transportation charges totaling Rs. 2,94,192/- paid to M/s. Patil Transport Services and M/s. Shreenath Roadways for non-deduction of TDS. The CIT(A) deleted the disallowance, noting that the recipients had paid tax on the transportation charges.- Arguments: The revenue did not present any new arguments, while the assessee relied on the Supreme Court judgment in Hindustan Coca-cola Breweries (P) Ltd., which supports the deletion of disallowance when the payee has paid the tax.- Tribunal's Findings: The Tribunal upheld the CIT(A)'s decision, noting that the resident transporters had paid the tax on the received amounts. It also referenced the 2nd proviso to section 40(a)(ia), which supports no disallowance when the payee has paid the tax.3. Disallowance under section 40(a)(ia) being machinery maintenance charges:- Facts and Circumstances: The AO disallowed machinery maintenance charges of Rs. 92,700/- for non-deduction of TDS. The CIT(A) deleted the disallowance, noting that Rs. 51,000/- related to the purchase of machinery parts and the remaining amount consisted of individual bills not exceeding Rs. 20,000/-.- Arguments: The revenue did not present any new arguments.- Tribunal's Findings: The Tribunal upheld the CIT(A)'s decision, agreeing that the provisions of chapter XVII-B are not applicable to the purchase of machinery parts and that the remaining expenses were below the threshold for TDS deduction.4. Disallowance of part of clearing and forwarding expenses under section 40(a)(ia):- Facts and Circumstances: The AO disallowed Rs. 5,30,469/- on account of clearing and forwarding expenses for non-deduction of TDS. The CIT(A) deleted the disallowance of Rs. 4,19,505/- as reimbursement of expenses and confirmed the disallowance of Rs. 1,10,964/-.- Arguments: The assessee argued that the payments did not fall under section 40(a)(ia) due to no contract between the parties. The revenue countered that the services were under an agency contract, whether written or oral.- Tribunal's Findings: The Tribunal noted that the plea of no contract was raised for the first time before it and required factual determination. It upheld the CIT(A)'s decision, agreeing that the payments were based on an agreed rate/charges, constituting an agreement between the parties.Conclusion:The Tribunal partly allowed the revenue's appeal and dismissed the assessee's cross-objection. The disallowance of freight charges paid to foreign shipping companies was confirmed, while the disallowance of transport charges and machinery maintenance charges was deleted. The partial disallowance of clearing and forwarding expenses was upheld.

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