TaxTMI 
TaxTMI 
2009 (7) TMI 175
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the assessee is that the assessee derives income from transport business. Books of accounts like cash books, ledger, journal and vouchers are maintained and audited under s. 44AB of the Act. These books were claimed to be produced before the AO. During the course of assessment proceedings, the AO claimed to have noticed certain discrepancies in the receipt declared in the account and as per the TDS certificate filed by M/s Relogestic (West Bengal) (P) Ltd., Kolkata. As per the TDS certificate, gross amount is Rs. 4.51 crores whereas as per the accounts is Rs. 4. 29 crores (declared by the assessee). This difference of Rs. 6,70,715 was reconciled but in respect of balance of Rs. 14,94,285, the assessee was not able to reconcile and there....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Tribunal has held as under: "8. After hearing the rival submissions and on careful perusal of the materials available on record, we are of the considered view that in case of the difference between the assessee's books and as per the TDS certificate, then on the said difference, the only embedded portion of the profits is to be taken into consideration. Therefore, we set aside the orders of the Revenue authorities on this issue and direct the AO to adopt the GP rate declared by the assessee for the asst. yr. 1999-2000 on Rs. 2,00,980." Similarly, our attention was drawn to the similar decision of Cuttack Bench on the issue and requested to delete the addition in question. On the other hand, the learned Departmental Representative rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osit to the Government exchequer. While coming to the said conclusion for disallowance, the AO has considered the payments made to the contractor as a sub-contractor which is not the fact. In fact, there was no sub-contractor agreement between the assessee and the transporter, assessee also relied on various case laws in his favour. Hence, he requested that provisions of s. 40(a)(ia) is not applicable to facts of assessee's case. On the other hand, the learned Departmental Representative supported the order of the authorities below. 8. We find it undisputed that the assessee is a transport contractor and in addition to its own, it has engaged other truck-owners to execute the transportation work on as and when basis without any privity o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the income chargeable under the head 'Profits and gains of business or profession'. The essential ingredients for not allowing the deduction is the existence of contract or subcontract agreement. 10. We find on similar' issue in ITA No. 95/Ctk/2008 in the case of National Transport, the Tribunal vide paras 8 and 8.1 held as under: "8. After hearing the rival submissions and on careful perusal of the materials available on record and the decision of the Hon'ble Punjab & Haryana High Court relied on by the learned counsel for the assessee, keeping in view of the fact that the Revenue could not establish that payments made to the transporters for arranging trucks, there was neither any oral or written agreement between the assessee and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ransported by different trucks, as per the details given therein. The Department has not brought any contract on record that the said goods were transported through M/s Karn Freight Carriers under an arrangement between the assessee and M/s Karn Freight Carriers. On perusal of the said pages of the paper book, viz. 1 to 37, we observe that the goods were transported by different trucks. The assessee made payments to the drivers of the trucks towards cost of transportation as per the bills. There is no material on record that the assessee made the payments for transportation of goods to M/s Karn Freight Carriers. Therefore, we find substance in the submission of the assessee that the said payment made by the assessee aggregating Rs. 4,37,388....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e and the transporters for carriage of goods nor it is proved that any freight charges were paid to them in pursuance of a contract for a specific period, quantity or price, the assessee was not liable to deduct tax under s. 194C from the payments made to the transporters.' 8.1 Respectfully following the order of the Hon'ble Punjab & Haryana High Court, we set aside the orders of the Revenue authorities on this issue and direct the AO to allow the expenditure claimed by the assessee without applying the provisions of s. 40(a)(ia) of the IT Act, 1961" 13. We also find that in ITA No. 201/Ctk/2008 in the case of Gurudeo Singh., the Tribunal, vide para Nos. 8 and 8.1, has taken the similar view in favour of the assessee. Nothing contrary....