1 itxa4716-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.4716 OF 2010 The Commissioner of Income Tax-13, Mumbai ..Appellant. V/s. M/s. Global Exim ..Respondent. Mr. Suresh Kumar for the appellant. Mr. Sanjiv M. Shah for the respondent. CORAM : J.P. DEVADHAR AND K.K. TATED, JJ. DATED : 14TH SEPTEMBER, 2011 P.C. :- 1. Though two questions of law are raised by the revenue in this appeal, counsel for the parties state that the second question is answered against the revenue by the decision of this Court in the case of CIT V/s. B.N. Exports reported in (2010) 323 ITR 178. Hence the second question cannot be entertained. 2. As regards the first question is concerned, it reads thus:- “ Whether on the facts and in the circumstances of the case, the ITAT was right in allowing the expenditure of Rs.4,13,155/- being expenses paid to Clearing & Forwarding Agent without the TDS being deducted on gross amount by misinterpreting section 40(ia) r/w. Section 194 C(1) of the Income Tax Act, 1961 ? “ 2 itxa4716-10 2. In the present case, the assessee had paid to the clearing and forwarding agent a sum of Rs.4,13,155/-. According to the assessee, TDS was deductible only on a sum of Rs.35,264/- and the balance represented reimbursement of the expenses. The assessing officer disallowed the claim of the assessee and held that in view of the non deduction of tax at source, the entire amount of expenditure was liable to be disallowed under Section 40(a)(ia) of the Income Tax Act, 1961. The ITAT deleted the disallowance by relying upon the decision of the Delhi Bench Tribunal in the case of ACIT V/s. Grandprix Fab (P) Ltd. reported in (2010) 34 DTR (Del) (Trib) 248. However, in the facts of the present case, there is no material on record to show that out of Rs. 4,13,155/-, the amount of Rs.3,77,891/- represented the reimbursement of the expenses incurred by the clearing and forwarding agent on behalf of the assessee. In this view of the matter, the order of the ITAT is quashed and set aside and the matter is restored back to the file of the assessing officer for fresh decision in accordance with all. 3. in the result, the appeal is disposed off accordingly with no order as to costs. 4. All contentions are kept open. (K.K. TATED, J.) (J.P. DEVADHAR, J.)