Vildirect: IncomeTax-caselaws-2016-VIL-979-ITAT-NGR

2016-VIL-979-ITAT-NGR

Income Tax Appellate Tribunal NAGPUR

ITA No. 333/Nag/2014

Date: 25.02.2016

ASSTT. COMMISSIONER OF INCOME-TAX

M/s CHADDA TRANSPORT

For the Appellant : Shri Narendra Kane
For the Respondent : Shri K P Dewani

BENCH

Mukul Kr. Shrawat, JM And Shamim Yahya, AM

JUDGMENT

Per: Shamim Yahya:

This appeal by the Revenue is directed against the order of learned CIT(Appeals)-II, Nagpur dated 27-03-2014 and pertains to assessment year 2007-08. The grounds of appeal read as under:

1. Whether on the facts and in the circumstances of the case, the CIT(A) has erred in deleting the addition of Rs. 24,14,44,379/- made u/s 40(a)(ia) of the I.T. Act.

2. Whether on the facts and in the circumstances of the case, the CIT(A) has erred in ignoring the practice of "oral contracts" that exist in this line of business and which are honoured by the law of land in arriving at an erroneous conclusion that provisions u/s 194C(2) are not attracted.

3. Whether on the facts and in the circumstances of the case, the CIT(A) has erred in holding that non-existence of a "formal contractual agreement" vitiates the very existence of an "oral contract", and thereby arriving at a wrong conclusion that no relationship of a contractor between the appellant and the small contractor exists.

2. Brief facts of the case are as under:

The assessee is a registered firm and derives income from transport contract business. The assessee mainly provides services to Ambuja Cement, Manikgarh Cement and Maratha Cement. These services are offered on contractual basis under a contract for work. The assessee owns some trucks and also hired trucks from the market to execute the contractual obligation. The transportation is done partly by self owned trucks and partly by hired trucks. The assessee has maintained books of account and has got its accounts audited as required u/s 44AA of the I.T. Act, 1961.

3. The assessee has debited an amount of Rs. 28,22,58,362/- to P & L a/c towards expenses on transportation payment. This amount includes an amount of Rs. 24,14,44,379/- paid to different transporters by the assessee for carrying out his contractual obligations. These transporters have performed transportation work for the assessee and the payments are made to them for performance of work.

4. The AO in his order noted that the assessee was asked to submit details to examine the extent of liability of the assessee to deduct tax from aforesaid payments made to transporters as required u/s 194C of the I.T. Act. However, the AO noted that the assessee stated that such payments/vouchers are huge in numbers and the list will be very lengthy and voluminous. The AO further noted that the ITO (TDS) had conducted spot verification on 29-01-2008 in the case of the assessee and passed order u/s 201(1)/201(1A) read with section 194C of the I.T. Act for assessment year 2007-08 on 29-04-2008. The AO further observed that during the course of spot verification and in consequence to the order passed by the ITO(TDS) Ward 2(3), Chandrapur, the assessee has deposited the amount of TDS deductible against the aforesaid payment of Rs. 24,44,379/- made to the different transporters and interest u/s 201(1A) as under:

Amount of TDS	Interest u/s 201(1A)	Date of Deposit
Rs. 2,00,000	-	10.03.2008
Rs. 1,00,000	-	13.03.2008
Rs. 70,00,000	-	29.03.2008
Rs. 4,38,587	4,44,272	07.06.2008

The AO observed that it is clear from the above fact that the aforesaid payment of Rs. 24,14,44,379/- made to different transporters was liable for TDS u/s 194C of the I.T. Act. He further found that the dates of deposit of TDS amounts as mentioned above also show that the amount of TDS deductible was deposited by the assessee beyond the time limit as prescribed u/s 40(a)(ia) of the I.T. Act.

5. The assessee in this regard explained that the assessee is a transporter doing mainly transportation of Manikgarh Cement, Ambuja Cement etc. The transportation is done partly by self owned trucks of the assessee and partly by hiring trucks from the market either through supervisors or sometime through transport brokers. Many times trucks from outstation are coming to Chandrapur with load from other cities and while going back instead of going empty they approach for return load and such trucks are being engaged by assessee for transportation of their goods. It was further stated that though there was no liability to deduct TDS the assessee deducted the TDS and paid the amount to avoid legal complications and litigations although every transport payment was not a sub contract with the truck owner. The AO was not convinced. He found that this is certainly a case of a contract for carriage of goods by truck and his work contract for the purpose of section 194C. He further discussed the assessee's plea that the trucks were hired from open market was not acceptable. He found that it is simply not possible to execute contracts worth crores of rupees without having further contractual agreements with other transporters. He further noted that the assessee has not filed any appeal against the order of ITO (TDS). Accordingly invoking the provisions of section 40(a)(ia) the AO disallowed the sum of Rs. 24,14,44,379/- towards expenses on payment made to other transporters.

6. Upon assessee's appeal, learned CIT(Appeals) deleted the addition. Learned CIT(Appeals) observed as under:

"6.2 On the basis of bare reading of the above section 194C(2) it is evident that the provisions of section 40(a)(ia) would be attracted If all the following conditions are satisfied:

a) The appellant should be a contractor.

b) The appellant, in his capacity as a contractor should enter into a contract with a sub-contractor for carrying out the whole or any part of the work undertaken by the contractor.

c) The sub-contractor should carry out the whole or part of the work undertaken by the contract or and the payment should be made for carrying out the whole or part of the contract.

6.3 As stated above and as is evident from the material on record, the appellant has not entered Into any contract for hiring of trucks for continuous transportation of various goods with various persons whose trucks are being used for transportation of goods. Such trucks are procured on a daily basis from the local transport mandi and no evidence of any contractual relationship between the appellant and the said truck owners has been brought on record. Admittedly each of the payment made is less than Rs. 20,000/- and the appellant makes the payment to various drivers/owners of the trucks on each trip basis. Thus clearly the appellant has not entered into any contract with the said drivers/owners for carrying out the whole or any part of the work undertaken by the contractor.

6.4 I have also perused the contracts entered into by the appellant with its Principals viz. M/s Ambuja Cement, Manikgarh Cement, Maratha Cement etc. Perusal of the said contracts clearly shows that the appellant is burdened with and solely responsible for a range of actions in pursuance to the contract. The appellant is required to comply with all existing rules and regulations related to labour/traffic and transport. The appellant Is liable for losses, damages, thefts, pilferage, fire/road accidents, breakages, shortages etc. The appellant is fully responsible for safety and delivery of the goods in good condition from the time of collecting of goods from the delivery it made to the consignee. Various other responsibilities have been imposed by stringent clauses that clearly suggest that the appellant is solely responsible for all the acts and defaults committed by it and/or its employees.

6.5 On the other hand there is nothing on record to suggest that the drivers/truck owners from whom the appellant has hired the vehicles have also been fastened with similar liabilities.It is evident from the various decisions referred to in the submission of the appellant that for the purposes of section 194C(2), when a contract is sub let with the same set of conditions attached to the contractor to be executed by another person, it can be termed as sub contract. It is evident from the facts on record that the various persons to whom lorry charges have been paid, have not been fastened with various liabilities which appellant Is obliged to fulfill in terms of contracts with various clients as contractor. On above undisputed factual position, relationship between appellant being contractor and person to whom lorry hire charges are paid is not established to be that of a sub-contractor. The Ld.AO has treated transactions between the appellant and the truck owner as a sub-contract, which is erroneous in the given set of facts and circumstances, as such truck owners do not share risks of the appellant involved in transportation of goods. From the record or the findings of the Ld. AO, nowhere it is borne out that there was any kind of written or oral contract with the principals by such outside truck/lorry owners that they will share the risk and responsibility with the appellant. Further, as is evident from the facts, at most of the times the truck owners may not even be aware of the principal for which the appellant Is executing transport work and therefore it can be concluded that the truck owners have not entered into any contract either with the appellant or the principals for which the appellant is executing the work. In view of the above facts it is difficult to hold that the payment made for hiring vehicles is a sub-contract payment. Thus it can be concluded that the payments made for hiring vehicles does not fall in the category of sub-contract. Also, it is not proved that any freight charges were paid to them in pursuance of a contract for specific period, quantity or price in the present case and clearly therefore, the. appellant was not liable to deduct tax u/s 194C from the payments made to the transporters. The above view is supported by several judicial pronouncements wherein it has been held on identical facts that the payment made by the transporters to hired vehicle owners are not hit by provision of section 194C."

Learned CIT(Appeals) further referred to several case laws from the Tribunal wherein similar additions were deleted. Learned CIT(Appeals) concluded as under :

"8. On perusal of the above findings and applying the same to the facts of the appellant's case, it is clearly established that the appellant's case is not covered by the provisions of section 194C(2) of the Act. In the case of the appellant, it is not disputed that the contract for carrying out the work has been entered into between the appellant and various others parties and it is the appellant alone who is responsible for carrying out the contract work as per the terms of agreement entered into with its Principals. The Ld. AO has not brought on record any material to suggest that there was any sub-contract, either written or oral with the outside truck/lorry owners whereby the risk and responsibility, which are associated with a contract, has also been passed on to these outside parties.

8.1 The provisions of section 194C(2) would not be applicable as the risk and responsibility of fulfilling of various terms and conditions of the contract remain with the appellant. The appellant has merely taken on hire the vehicles and the same cannot be said to be a sub-contract and therefore the provisions of section 194C, as applied by the ld. AO are not applicable in the case of the appellant. The case of sub contract can be made out only when the appellant off-loads a defined part of the contract work to the said lorry/contract owners by way of a written or oral wherein the risk and responsibility are also transferred.

8.2 In view of the above facts and the clear findings in Mythri Transport Corporation v. Asst. CIT (supra) and various other judicial pronouncements referred to and reproduced above, it can be concluded that the payments made for hiring vehicles does not fall in the category of sub-contract with the drivers/truck owners and in view of the same it is held that the provisions of section 40(a)(ia) r.w.s. 194C(2) are not attracted and the addition made by the Ld. AO of Rs. 24,14,44,379/- is unjustified and unsustainable and the same is therefore deleted. These grounds are therefore allowed."

7. Against the above order, Revenue is in appeal before us.

8. We have heard both the counsel and perused the records. Learned D.R. submitted that the assessee has failed to deduct TDS on payment made to contractors as required u/s 194C of the I.T. Act. Hence he submitted that the provisions of section 40(a)(ia) are clearly attracted. He further submitted that the assessee has accepted the order of the ITO (TDS) where assessee has been held to be a defaulter for non deducting the TDS and the assessee thereafter has paid the default amount of TDS and the interest due thereon. Hence learned D.R. submitted that there is no reason why the disallowance u/s 40(a)(ia) should not be sustained.

9. Per contra Learned counsel of the assessee submitted that the assessee is engaged in activity of transportation of goods. The assessee has undertaken contracts for various corporate entities namely, Ambuja Cement, Manikgarh Cement and Maratha Cements etc. for transporting of goods of the said companies. The assessee for rendering the services has entered into agreements and aforesaid contracts provide for various stipulations which are to be strictly adhered by assessee being terms and conditions of contracts. The payment received by the assessee are contract payments as envisaged in section 194C of the I.T. Act. Learned counsel further submitted that on certain occasions assessee has to hire trucks from open market in the vicinity of various factories located for transportation of goods. The assessee has no regular contract of hiring of trucks for continuous transportation of various goods and in fact assessee has no oral or written agreement for hiring trucks for transportation of goods to perform contractual obligation undertaken by virtue of various agreements with corporate clients. The assessee alone under its control and supervision has executed whole of contract. The individual lorry owners have not carried out any part of the work undertaken by assessee. The payments made by assessee to various drivers of trucks are on each trip basis. In view of above facts payment made by assessee for hiring of trucks is not in the nature of payment made to sub-contractors on which there is obligation to deduct tax at source u/s. 194C(2). There is no material on record to suggest that the other truck owners involved themselves in carrying out any part of work undertaken by the assessee by spending their time, energy and by taking the risks associated with the main contract work. In absence of above characteristics, it cannot be said that payment made for hired vehicles would fall in the category of payments made to sub-contractor.

In this regard learned counsel placed reliance upon the following case laws :

1. Hon'ble Bombay High Court order in ITA No. 1219 of 2012 in the case of M/s Bhail Bulk Carries vide order dated 12/11/204.

2. (2012) 50 SOT 0622 Bhai Bulk Carriers vs, ITO

3. Mytri Transport Corpn. Vs. ACIT (2010) 1 ITR 0290 (Visakhapatham)

4. Kuldeep Kumar Sharma vs. ITO (2012) 53 SOT 0230.

5. ITAT order in ITA No. 4666/Mum/2012 in the case of Jaswant P. Patel (HUF) vide order dated 19/11/2013.

6. ITAT order on OTA No. 2153/Del.2011 in the case of Shri Sujan Singh vide order dated 28/11/2013.

7. ITAT order in ITA No. 38/Agra/2013 in the case of Vicky Roadways vide order dated 31/10/2013.

8. ITAT order in ITA No. 3593/Mum/2010 in the case of Mr. Arshad Aboo Mohindeen vide order dated 29/04/2011.

9. ITAT order in ITA No. 306/Agra/2009 in the case of Shri Vipin Arora vide order dated 17/06/2011.

10. ITAT order in ITA No. 6506/Mum/2010 in the case of Shri Janardhan V. Sawant for Asstt. Year 2007-08 vide order dated 28/03/2012.

11. Mrs. Kavita Chung vs. ITO (2010) 45 DTR 0146 (Kol).

12. CIT vs. United Rice Land Ltd. (2010) 322 ITR 0594.

10. Learned counsel further submitted that the assessee in this case cannot be said to be assessee in default for the provisions of section 40(a)(ia) inasmuch as the perusal of balance sheet/profit & loss account were indicate that no amount of freight claim is payable as on 31-03-2007. Hence learned counsel pleaded that all freight amount claim is paid by the assessee and no amount is payable at the close of the accounting year. Hence he argued that provisions of section 40(a)(ia) are inapplicable to amount paid as business expenditure. In this regard learned counsel placed reliance upon the following case laws:

1. SLP CC No(s). 8068/2014 (Supreme Court) CIT vs. M/s Vector Shipping Services (Pvt) Ltd. dated 02/07/2014,

2. CIT vs. Vector Shipping Services (P) Ltd. (23013) 357 ITR 642 (All).

3. ITAT order in ITA No. 465/Nag/2014 in the case of M/s Acharya Brothers vide order dated 28/12/2015.

4. ITAT Mumbai in ITA No. 1919/Mum/2013 in the case of M/s Halani Shipping Pvt. Ltd. vide order dated 13/02/2015.

5. ITAT order in ITA No. 1871/Mum/2013 in the case of M/s Arcadia Share & Stock Brokers Pvt. Ltd. vide order dated 22/12/2014.

6. ITAT order in ITA No. 13/Mum/2013 in the case of Smt. Zeenat N. Shaik vide order dated 17/09/2014.

7. ITAT order in ITA No. 18/Del/2013 in the case of Shri Anoop Khandelwal vide order dated 17/10/2014.

11. Learned counsel further submitted that the provisions of section 194C(6) also come to the rescue of the assessee. He submitted that though the provisions of section 194C(6) were subsequently introduced they are actually clarificatory and were applicable to pending proceedings. He submitted that PAN of all the payees are placed on record. Hence there was no obligation to deduct tax at source as per the provisions of section 194C(6). Hence no disallowance u/s 40(a)(ia) is required. For this proposition, learned counsel placed reliance upon the following case laws:

1. CIT vs. Alom Extrusions Ltd. 319 ITR 306 (SC).

2. Allied Motors (P) Ltd. CTC vs. CIT 224 ITR 677 (SC).

3. ITAT order in ITA No. 63/Hyd/2013 in the case of Associated Roadways (P) Ltd. vide order dated 20-05-2013.

Learned counsel further submitted that in the case of assessee disallowance/addition made is unsustainable considering the concept of real income. Income assessed is Rs. 23.79 crores which is approximately 71.18% of receipts of Rs. 33.42 crores. Hence he submitted that addition is also not sustainable on this account.

12. We have carefully considered the submissions and perused the records. First we deal with the issue on the ground that the provisions of section 40(a)(ia) are not attracted inasmuch as the entire freight expenditure is paid and nothing is payable as on 31-03-2007. The facts in this regard are undisputed. The assessee's plea is that the entire freight amount was paid and nothing is payable as on 31-03-2007, and that this is duly reflected by a perusal of the balance sheet/profit & loss account where no amount is payable as on 31-03- 2007. In this regard learned counsel of the assessee has placed reliance upon CIT vs. Vector Shipping Services (P) Ltd. 357 ITR 642 (All.). In the said case Hon'ble Allahabad High Court has upheld the finding that when the expenses incurred by the assessee is totally paid and not remained payable as at the end of the relevant accounting period, provisions of section 40(a)(ia) are not applicable. The Hon'ble High Court in para 10 of the order has concluded as under:

"It is to be noted that for disallowing expenses from business and provision on the ground that TDS has not been deducted, the amount should be payable and not which has been paid by the end of the year."

13. Revenue's appeal against the above said decision of the Hon'ble Allahabad High Court was dismissed by the Hon'ble Apex Court in CC No. 8068/2014 vide order dated 02-07-2014. The Hon'ble Apex Court has held as under:

"Heard Mr. Mukul Rohatgi, learned Attorney General, for the petitioner. Delay in filing and refilling special leave petition is condoned. Special leave petition is dismissed."

We are also aware that there are certain other Hon'ble High Court decisions wherein this proposition has not been upheld that provisions of section 40(a)(ia) are attracted only when the amount is payable. However, we note that there is no jurisdictional High Court decision on this issue. In such a situation we now have a Hon'ble Allahabad High Court decision which is in favour of the assessee. Revenue Department's petition for special leave to appeal has been dismissed by the Hon'ble Apex Court by condoning the delay in filing the leave petition. In such a situation, in our considered opinion, the decision of Hon'ble Apex Court in the case of CIT vs. Vegetable Products Ltd. 88 ITR 192 has to be followed. In the said decision the Hon'ble Apex Court has expounded that in case there are two views possible, the view in favour of the assessee should be followed. Accordingly in absence of any jurisdictional High Court decision, we respectfully follow the decision of Hon'ble Allahabad High Court in the case of Vector Shipping Services (P) Ltd. as above. Accordingly since no amount of the freight was unpaid or was payable as on 31-03-2007 we hold that the provisions of section 40(a)(ia) are not attracted and in this view of the matter we are of the opinion that Revenue's appeal is liable to be dismissed.

14. Now we deal with the issue on the ground that assessee was not liable to deduct TDS on payment as that the assessee's case is not covered by the provisions of section 194C(2) of the I.T. Act inasmuch as there was no contract with the truck/lorry owners. In this regard the assessee has contended that there was no regular contract of hiring of the trucks for continue transportation of various goods with the trucks/lorry owners. That there was no oral or written agreement for hiring trucks for transportation of goods to perform a contractual obligation by virtue of various agreements with corporate clients. That the assessee alone is liable and under its control and supervision has executed the whole of contracts on behalf of various corporate entities, namely, Ambuja Cement, Manigarh Cement and Maratha Cement etc. Hence it is the plea of the assessee that hiring of trucks in this case is not in the nature of payment made to sub contractors on which there is obligation to deduct the tax at source u/s 94C of the I.T. Act. In this regard learned counsel of the assessee's contention is that the issue is squarely covered in favour of the assessee by the decision of Hon'ble Bombay High Court in ITA No. 1219 of 2012 in the case of M/s Bhail Bulk Carriers vide order dated 12-11-2014. In this case Hon'ble Bombay High Court has upheld the decision of Mumbai ITAT in the case of Bhail Bulk Carriers vs. ITO 50 SOT 0622. In this case the ITAT has discussed the issue in para 8 & 8.1 of its order as under :

"8. We have heard the parties at length and also gone through the findings of the authorities below and the case laws as have been referred in the appellate order as well as relied upon by the learned council. The relevant facts for adjudication of the issue are that the appellant is carrying out the business of transportation of oil through tankers. It entered into a contract with various companies (here mainly BPCL) for transporting the oils to various destinations as per the agreement entered into by the said company. The appellant was solely responsible for executing the contract on behalf of its principal for fulfilling its transportation commitment, the appellant besides using its own tankers was also hiring the tankers from outside parties as and when required. In such a case of hiring from outside, the responsibility of successful completion of transportation work rested upon the appellant. From the record or the findings of the authorities below no where it is borne out that there was any kind of written or oral contract with the principals by such outside tank owners that they will share the risk and responsibility with the appellant.

8.1 At this stage, it is not dispute that the department's case is that in the present case provisions of section 194C(1) are applicable and not section 194C(2). Once it is held that it is a case of 194C(1) they it would be sent that this section applies to any payment made to a person for carrying out any work in pursuance of a contract between the contractor and the person making the payment. If the condition of "Carrying out any work in pursuance of a contract" is not fulfilled they the provisions of this section will not be applicable at all. Here in this case, the contract for carrying out the work was between the BPCL and the appellant. The appellant along had risk and responsibility for carrying out the contract work as per the agreement entered into by it with its principal i.e. BPCL. There is no material on record to suggest that there was any contract or sub-contract whether written or oral with the outside tank owners and the appellant, whereby the risk and responsibility which is associated with a contract has also been passed on to these outside parties. Once the CIT(Appeals) has accepted the fact that the outside tank owners do not had any responsibility or liability towards the principal, then it cannot be held that these outside parties were privity to the contract between the appellant and its principal Thus the payment made to the outside parties do not come or fall within the purview of section 194C, as the "carrying out any work" indicates doing something to conduct the work in pursuance of contract and here in this case, it was solely between appellant and its principal."

Thereafter the Tribunal had referred the decision of Hon'ble Madras High Court in the case of CIT vs. Pompuhar Shipping Corporation Ltd. and concluded as under:

"Thus in view of the findings given above and the law laid down by the Hon'ble High Court as above, we are of the considered opinion that the appellant was not liable to deduct TDS u/s 194C(1) for payments made to the outside parties and consequently the disallowance made u/s 40(a)(ia) by the authorities below are deleted. The appellant thus gets relief of 56,03,210/-."

This order of the ITAT was subject matter of appeal before the Hon'ble jurisdictional High Court in Income Tax Appeal No. 1219 of 2012 vide order dated 12th Nov., 2014. The Hon'ble High Court held as under:

"2. The Appeal arose out of the order of the First Appellate Authority dated 15th February 2011. The only issue was dis-allowance of Rs. 56,03,210/- under Section 40(a)(ia) for the failure to deduct tax at source under section 194C of the Income Tax Act,1961. The Tribunal found that this dis-allowance was not permissible because the Assessee a partnership firm is in the business of transport. It is a transport contractor. It was awarded a contract of Oil Transportation to various locations of Bharat Petroleum Corporation Ltd., and other companies. The Assessee received during the year in question Rs. 2,83,06,986/- towards freight charges. The Contract document shows the Assessee along was responsible for transportation of oil from one destination to other. The contractual liability was discharged by transporting oil mostly through the Assessee's own tankers and also from some hired tankers belonging to outside parties. An amount of Rs. 1,79,03,198/- was paid to various parties and the Assessee furnished the details. The amounts paid and summary thereof is noted and what the Assessing Officer, the First Appellate Authority and Tribunal fond that TDS (Tax deducted at a source) had not been remitted or there is no deduction in cases of third parties. The Tribunal noted the rival contentions and rendered a finding of fact by referring to the legal provisions that the risk and responsibility for carrying out the contract work was solely that of the Assessee. There is no material to suggest that there was any contract of sub-contract, whether written or oral with the outside tanker owners and the Assessee. It is in these circumstances and when these outside tanker owners do not have any responsibility or liability the Bharat Petroleum Corporation Ltd. or other principals then, in the absence of any privity, the obligation to deduct the tax at source was not that of the Assessee. In such circumstances, we do not find that the Appeal raises any substantial question of law, the findings cannot be termed as perverse or vitiated by error of law apparent on the face of the record. The Appeal is dismissed."

15. Now we examine the present case on the anvil of above jurisdictional High Court decision. In this case also the assessee is a transport contractor. The assessee was awarded contract of transportation to various locations of Ambuja Cement, Manigarh Cement, Maratha Cement etc. The assessee received freight charges from these companies. The contract with these companies shows that the assessee was responsible for transportation of cement from one destination to other. The contractual liability was discharged by transporting cement through assessee's own trucks and also from hired trucks belonging to outside parties. It is clear from the facts on record that the risk and responsibility for carrying out the contract work was solely that of the assessee. There is no material to suggest that there was any contract or sub contract written or oral with the outside truck owners and the assessee. It is in these circumstances that when these outside truck owners do not have any responsibility or liability towards the Ambuja Cement or other principals then in absence of any privity the obligation to deduct the tax at source was not that of the assessee.

16. In view of the aforesaid discussion, we find that the facts of the case are fully in consonance with the decision of Hon'ble jurisdictional High Court in the case of Bhail Bulk Carriers (supra). Accordingly we hold that the learned CIT(Appeals)'s order does not have any infirmity and accordingly we uphold the same. Hence Revenue's appeal is liable to be dismissed on this plank as well.

17. Since we have already held that the provisions of section 40(a)(ia) were not attracted inasmuch as no amount was payable as on the close of the year as well as in absence of any contracts, there was no obligation on the part of the assessee to deduct the tax at source, we find that adjudication on the other planks of argument of the learned counsel of the assessee is now only of academic significance. Hence we are not engaging into the same.

18. In the result this appeal filed by the Revenue stands dismissed.

( Order pronounced in the Open Court on this 25.2.2016. )

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