M/S. BHOOMI & ARKADE ASSOCIATES,MUMBAI vs. DCIT, CIR, 32(1), MUMBAI
What did the Tribunal hold?
The Tribunal remitted the issue of disallowance under Section 40(a)(ia) back to the AO for fresh adjudication. If the other party has paid taxes on the income, no disallowance should be made.
What were the facts?
The assessee, engaged in real estate, filed its return for AY 2019-20. The intimation proposed disallowance under Section 40(a)(ia) for non-deduction of TDS and under Section 43B. The CIT(A) confirmed the disallowance under Section 40(a)(ia) but accepted the claim for Section 43B.
What were the issues?
Whether disallowance under Section 40(a)(ia) is warranted when the recipient has offered the income and paid taxes, and the availability of a CA certificate under the proviso to Section 201(1).
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI AMIT SHUKLA, JM & SHRI PRASHANT MAHARISHI, AM
O R D E R
Per Amit Shukla, Judicial Member:
The aforesaid appeal has been filed by the assessee against the impugned order dated 22.09.2021, passed by National Faceless Appeal Centre (NFAC), Delhi for AY 2019-20 u/s 143(1). The assessee has raised the following grounds of appeal:-
M/s. Bhoomi & Arkade Associates.
That on the facts and circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made under section 40(a)(ia) read with proviso to section 201(1) of the Income Tax Act in the intimation order u/s 143(1).
2. That on the facts and circumstances of the case and in law, the Ld. CIT (A) erred in confirming the addition made under section 40(a)(ia) read with proviso to section 201(1), despite of the fact that when the other party has already offered the said income in his Return of Income and paid taxes on the same, then no addition can be made once again.
The brief facts of the case are that, assessee is engaged in the real estate business and has filed its return of income for AY 2019- 20 on 28.09.2020 declaring total income of Rs. 13,34,43,880/-. Thereafter, intimation u/s 143(1) was issued for proposal of adjustment relating to 30% disallowance u/s 40(a)(ia) amounting to Rs. 1,09,62,094/- and disallowance u/s 43B amounting to Rs. 2,62,662/-.
Ld. NFAC held that it is not clear whether the certificate in the prescribed Form 26-A was filed alongwith return income in terms of the proviso 201(1) and accordingly, he has confirmed the M/s. Bhoomi & Arkade Associates. disallowance u/s 40(a)(ia). However, in so far as the disallowance u/s 43B, he accepted the assessee’s claim.
Before us, Ld. Counsel for the assessee submitted that the CA certificate under the proviso of section 201(1) is now available which can be verified.
After considering the aforesaid submission as well as documents placed on record, we are remitting the issue back to the file of Ld. AO for fresh adjudication and if the party has paid the taxes in accordance with section 201(1), then no disallowance should be made u/s 40(a) (ia). The assessee directed to furnish the documents before the AO for verification.
In the result, the appeal filed by the assessee stands allowed for statistical purposes.
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