TaxTMI 
TaxTMI 
2014 (5) TMI 1000
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....sessee and the payees so as to oblige the asaessee to deduct TDS on payments made to the payees. 2. The Ld. CIT(A) erred in ignoring the fact that the existence of a contract is implicit on the basis of facts and circumstances of the case which is further fortified by the act of the assessee in deducting the TDS on payments made to the payees but defaulted in deposit of the same before the specified due date. 3. The Ld. CIT(A) erred in holding that the deducted TDS deposited before due date of filing of return did not attract the disallowance u/s 40a(ia) of IT Act ignoring the fact that the amendment of the section to this effect came on the statute for A.Y 2009-10 with prospective effect. 4. The Ld. CIT(A) erred in deleting the ad....
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....disallowance u/s 40 (a)(ia)of the Act could not be made as the amount of TDS was duly deposited before the due date of filing the return of income . It was argued that this fact had been taken note of by the Assessing Officer himself in the assessment order that the assessee had deducted and deposited TDS for the period April 2008 to February 2009 before due date of filing of return u/s 139 91). Reliance was placed upon CIT VS. Virgin Creations (2011) (HC) (Kolkata) and Piyush C Mehta Vs. ACIT (2012) (ITAT Mumbai) 3. Considering the arguments advanced the CIT(A) held that since the amount of TDS was duly deposited before the due date of filing the return disallowance u/s 40(a)(ia) could not be made. Apart from that he also held tha....
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....he Assessing Officer in para 12 of his order and for the sake of brevity the same is reproduced for ready reference:- "12. During the course of assessment proceedings, while going through the details of Fixes assets schedule, it was noticed that the assessee had claimed depreciation on Trucks @ 30% of the WDV, amounting to Rs.2284973/-, instead of the allowable depreciation @15%. The AR was duly confronted on the discrepancy noticed and asked to explain the same since no income from letting these Trucks on hire was declared. In response to the same, it was stated vide letter dated 27/12/2011 that the assessee's nature of business was Contractor of Transportation including loading & unloading as well as mining and generation of Reve....
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....as unloading of iron ore, minerals etc. from the mines. It was submitted that the assessee entered into transportation contract with M/s East India Minerals Ltd. for transportation of iron ore, minerals etc. from crusher stockpile to Railway sidings. Attention was invited to the correspondence with East India Minerals Ltd.in regard thereto on the basis of these copies emphasis was laid on the fact that the payments agreed to between the parties also consisted of hire charges for transportation of material from one place to another. Reliance was placed upon Circular No. 652 dated 14/6/1993 in support of its claim that higher deprecation will be admissible on motor lorries used in the assessee's business of transportation of goods on hire. Re....
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.... business income of the assessee as the assessee has entered into a composite contract and hire charges are duly included in the business of the assessee. Reliance was also placed on Dr. K. R Jayachandran 212 ITR 637 (Ker) for the following proposition:- " Plying of the ambulance van on hire itself constituted the business of the assessee though it may be incidental to the running of the hospital. The hire charges received were assessed under the head Business. Hence the assessee is entitled to depreciation at the rate of 40%. 8. Considering the explanation offered the CIT came to the following conclusion:- " I have carefully considered the contention of the appellant as well as the case laws and circular relied upon. The contentio....
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....e/minerals etc from the crusher stockpile to the railway sidings . Accordingly, placing reliance upon the impugned order, it was his submission that the departmental appeal deserves to be dismissed. 10. We have heard the rival submissions and perused the material available on record. Considering the same wherein the facts are not in dispute in as much as that the assessee entered into a transportation contract with M/s East India Minerals Ltd. for transportation of Iron ore etc. from crusher stockpile to railway sidings which has not been assailed by the revenue by way of any argument on fact or any evidence led to show that a fact has been wrongly taken into consideration, in the absence of the same, we are unable to come to a contrary ....