D.N. Patel, J :

1. In this appeal following substantial questions of law have been raised:

“ (i) Whether on the facts and in the circumstances of the Case the Learned Tribunal is justified in deleting the entire addition of Rs. 96,78,419/-on account of 'Vehicle Hire Charges' by holding that there was no Contract?

(ii) Whether on the facts and in the circumstances of the Case the Learned Tribunal is justified in deleting the entire addition of Rs. 12,76,000/-on account of 'Loading and Unloading Charges' by holding that there was no Contract?

(iii) Whether on the facts and in the circumstances of the Case the Learned Tribunal is justified in ignoring the categorical finding of the CIT(A) that there was a contract between the parties and Assessee was liable to deduct TDS?

(iv) Whether on the facts and in the circumstances of the Case the Learned Tribunal is justified in relying upon the decision delivered in the case of Bhagwati Steel reported in (2011) 198 TAXMAN 275 (P&H) which was not at all applicable in the instant Case?

(v) Whether on the facts and in the circumstances of the Case the impugned Order is perverse?”

2. This matter has been taken up for its final hearing by the consent of the learned counsel for both the sides and have argued out the case at length.

3. Counsel for the appellant on behalf of the Commissioner Income Tax, Jamshedpur has submitted that the respondent has claimed deduction of Rs. 98,76,419/-, which is paid to the sub contractor for transportation. Similarly, the respondent-assessee has also claimed deduction of Rs. 17,60,600/-under the heading of “loading and unloading charges”. These deductions not having been allowed , appeal was preferred by the respondent before the Commissioner, Income Tax (Appeals) Jamshedpur bearing Appeal No. 525/JSR/2011-12. Which was dismissed by the Commissioner of Income Tax vide order dated 31st December, 2012 mainly on the ground that the assessee has not deducted TDS, as required u/s 194 C of the Income Tax Act, 1961 and, therefore, deductions are not permissible u/s 40(a) (ia) of the Income Tax Act, 1961. Against this order, the respondent had approached Income Tax Appellate Tribunal, Ranchi Circuit Bench, Ranchi. The appeal preferred by the assessee bearing I.T.A. No. 16/Ran/2013 for the assessment year 2009-10 having been allowed by Income Tax Appellate Tribunal, Ranchi Circuit Bench, Ranchi vide order dated 3rd May, 2013, the Income Tax Department has preferred the present Tax Appeal raising the aforesaid substantial questions of law.

It is submitted by the counsel appearing for the appellant that learned Income Tax Appellate Tribunal, Ranchi Circuit Bench, Ranchi has stated that there is no written or oral contract for specific period, quantity or price and hence, the provision of Section 194C of the Income Tax Act, 1961 is not applicable and once this Section is not applicable, disallowance made u/s 40(a)(ia) cannot be made. Thus, both the deductions from the income of the respondent-assessee was allowed without appreciating the fact that:-

(a) Section 194 C of the Income Tax Act, 1961 is also applicable to the oral contract.

(b) Assessee will never prove the contract even if it is in writing available nor they will produce. This is a fact within the specific knowledge of the assessee. Oral contract may be deduced from several facts available with the assessing officer.

(c) The learned ITAT has failed to appreciate the fact that the respondent-assessee is not a broker, who is claiming only brokerage per truck as argued vehemently here at the rate of Rs. 150-200 per truck. The respondent-assessee has made cash payments to various parties on different dates under the different heads which are as under:-

I. Vehicle hire charges

II. Labour charges.

III. Repair and Maintenance – mainly for the expenses for replacement of spare parts, tyres and tubes, batteris, engine, motors auto body, leaf spring and other general repairs.

IV. Loading & Unloading charges.

(d