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DCIT vs. Kataria Transport & Co.

Asst.Year - 2005-06

- 12 -

"So far as Sr.No.2 of above table i.e enhancement of disallowance of Rs.2,42,15,122/- is concerned, the Appellant submits as under:

       Particulars                                           Amount in Rs.

a)     Freight on own trucks                                 1,30,86,314
b)     No TDS made on individual trucks                      1,08,22,029
c)     Balance freight representing debit notes              3,06,779
                                                             2,42,15,122

 Freight on own truck          -       Rs.1,30,85,814/-

Balance freight representing debit notes - Rs.3,06,779/-

Copy of details of freight representing debits notes of Rs.3,06,779/- .is enclosed herewith marked as "Annexure - K", on which the tax is not required to be deducted at source under the scheme of the Act"

10. The ld.DR while impugning the orders of the ld.CIT(A) contended that in the case of M/s.Kataria Movers, the ld.CIT(A) has relied upon the order of the ITAT, Special Bench decision in the case of Merilyn Shipping & Transports Vs. ACIT, 16 ITR (Trib.) 1. He pointed out that analysis made by the ld.CIT(A) on the strength of this decision is not sustainable, because, Hon'ble Gujarat High Court in the case of CIT Vs. Sikhandharkhan N. Tanvar, 257 ITR 212 has overruled this decision. He pointed out that in the case of M/s.Kataria Movers, the ld.CIT(A) has observed that total disallowance of Rs.6,53,59,734/- including enhancement made by the CIT(A) was to be done in this case. Out of this amount, a sum of Rs.3,39,11,223/- is the amount on which TDS was deducted by the assessee, but was paid late i.e. before the due date of filing of the return. When the ld.CIT(A) has worked out the balance amount, then, this amount was not examined with the angle whether TDS was to be DCIT vs. Kataria Transport & Co.