ACIT 31(1), MUMBAI vs. AACASH EXPORTS, MUMBAI

On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance made u/s 40(a)(ia) of Rs 66,83,255/- ignoring the findings unearthed by the AO during the course of assessment proceedings.

The short facts of the case are as under:- The assessee has filed the Return of Income declaring total income of Rs.62,41,789/-on 28/09/2011. The assessee is engaged into the business of export of chemicals. The AO has completed the Assessment and made addition of Rs.66,83,225/- under section 40(a)(ia) of the Income Tax Act, 1961 comprising of Rs.63,46,831/- towards ocean freight and Rs.3,36,424/- reimbursement of expenses.

During the course of hearing, the Ld. AR has requested for adjournment Ms. Neha Barve was present and we declined to give the adjournment. The Ld. Representative submitted that this issue is covered by the assessee’s own case in AY 2009-10 and wherein the Revenue appeal was dismissed.

The Ld. DR has no objection if the matter is decided accordingly. 6. We have heard the rival contention of both the parties. Looking to facts and circumstances of the case, we find that the issue in controversy is covered by the assessee’s own case wherein the Tribunal dismissed the departmental appeal by observing as under - “4.1 Considering the facts of the case, ocean freight charges, air freight charges and in land charges are covered by the circular of CBDT bearing no. 723 dated 10/09/1995, according to which no TDS is to be deducted on such payments. The same view has been reiterated by the Tribunal in the case of ITO Vs. Freight System (India)(P) Ltd. [2006 (6) SOT 473 (Del)] wherein it has been held that payment of ocean freight is not liable for tax deduction at source u/s 194(c) in view of provisions of Section 172. The same is the case with the inland charges which is covered under subsection 8 of section 172. The Tribunal in the case of DCIT Vs. Hasmukh J. Patel [2012 (49) SOT 197 (Ahd)] has held that the payment made to shipping agents of non residents is noting but reimbursement of charge which has been clarified by the CBDT circular no. 723 (supra) which states that the provisions of section 172 would apply in such cases and no deduction of taxes requied as per section 194(c). Some of the other additions were deleted by the Ld. CIT(A) on the reason that the payments were below Rs.20,000/- and hence the assessee was not liable to deduct TDS. Since the Ld. CIT(A) has correctly appreciated the facts and position of law in deleting the additions made by the AO, we do not find any infirmity in the said order of the Ld. CIT(A). 4.2 On the issue raised by the Revenue that the Ld. CIT(A) has admitted additional evidence in contravention of the Rule 46A of the Income-tax Rules, we are not inclined to accept the said contention as per Ld. DR could not specifically point out the