ENDRESS + HAUSER (INDIA) AUTOMATION INSTRUMENTATION PVT.LTD,,AURANGABAD vs. ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE - 1,, AURANGABAD

ORDER

Per S.S.Godara, JM:

Case called twice. None appears at the assessee’s behest. It is accordingly proceeded ex-parte.

assessment dated 21.03.2016 as upheld in the CIT(A) order, we note that the lower appellate discussion to this effect reads as follows: “6. In the third ground of appeal, the appellant has challenged the action of the AO in not allowing the additional claim of payment of TDS of Rs.7,37,881/- U/s.40(a)(ia) which was disallowed in AY 2012-13. Before me, the counsel of the appellant has argued that the assessee company had deposited the TDS after the due date o filing the return of income for assessment year 2012- 2013. Hence the expenditure of Rs.7,37,881/- was disallowed by the AO. The assessee company claimed the said expenditure of Rs.7,37,881/- as allowable U/s 40(a)(ia) as the TDS was deposited ii financial year 2012-13 pertaining to AY 2013-14 but the Assessing Officer did not consider its claim on the ground that the Assessing Officer was not authorized to assess income at a figure lower than the returned income. It was requested to allow the claim of the assessee in view of the decision of CIT Vs. Pruthvi Broker and shareholders Pvt. Ltd. in of 2010 dated 15.06.2012. Reliance was also placed on the decision of Tribunal in the case of ACIT Vs. Encore Coke Ltd. ii ITA No: 1921 of 2013 dated 22.01.2016. In view of above facts, it was requested to allow the claim of Rs.7,37,881/- U/s 40(a)(ia) of the Act.

7. I have duly considered the submissions of the appellant. On careful consideration of facts & circumstances of the present case, I am not inclined to accept the arguments of the appellant company.

A.Y. 2013-14 Endress + Hauser (India) Automation Instrumentation Pvt. Ltd., (A)

If the claim of payment of TDS of Rs.7,37,881/- is allowed to the appellant company, then the assessed income would be less than the returned income. Since the assessed income can't be lower than the returned income therefore the decision of Honourable Jodhpur ITAT in the case of 1TO Vs. New Mitharwal Construction Co. (72 TTJ 533) has to be followed. In these facts & circumstances, the action of the AO in not allowing the claim of TDS is upheld and this ground of appeal is accordingly dismissed.”

3. Suffice to say, it has come on record that the assessee has indeed not deducted or paid the TDS amount in issues in the relevant previous year. The impugned disallowance deserves to be upheld in principle therefore. The fact however remains that it has claimed to have made the impugned TDS payment in the succeeding assessment year which stands disallowed in the CIT(A)’s order in para 7 for the sole reason that the same would reduce the self assessed income. The Revenue also placed strong reliance on the impugned reasoning. We do not find any substance in its arguments light of stricter interpretation of section 40(a)(ia) 1st proviso in light of Commissioner Vs. Dilip Kumar and Company [2018] 9 SCC 1 (SC)(FB) as once the legislature itself has not incorporated any such precondition for application thereof in the statute. We thus reject the Revenue’s arguments supporting the CIT(A)’s findings and direct the Assessing Officer to grant benefit of section 40(a)(ia) first proviso to A.Y. 2013-14 Endress + Hauser (India) Automation Instrumentation Pvt. Ltd., (A)

the assessee subject to necessary factual verification as per law. Ordered accordingly.