M/S. PMS DIESELS,PHAGWARA vs. ADDL. COMMISSIONER OF INCOME TAX, PHAGWARA

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA No.64(Asr)/2016 Assessment Year:2005-06

M/s PMS Diesels, Vs. Asst. CIT Village:-Jamalpur, Phagwara Range G.T.Road, Phagwara Phagwara PAN:AAAFR9505H (Appellant) (Respondent) Appellant by: Sh. Tarun Bansal (Ld. Adv.) Respondent by: Sh. Rajeev Gubgotra (Ld. DR) Date of hearing: 07.03.2018 Date of pronouncement: 28.03.2018 ORDER PER N.K.CHOUDHRY, JM: The instant appeal has been preferred by the

Assessee/Appellant, on feeling aggrieved against the order dated

16.11.2015 passed by the Ld. CIT(A), Jalandhar, u/s 250(6) of

the I.T. Act, 1961 (hereinafter called as ‘the Act’).

not repeated herein for the sake of convenience and brevity.

However, the crux of the order under challenge is that the Ld.

ITA No.64/Asr/2016 (A.Y.2005-06) 2 M/s PMS Diesels, Phagwara vs. ACIT

CIT(A) was directed by the ITAT, Amritsar Bench, vide its order

dated 26.06.2009 (ITA No. 457(Asr)/2008) to decide afresh the

addition of Rs.40,98,544/-, which was disallowed by invoking the

provision of Sec.40(a)(ia) of the Act by the Assessing Officer and

confirmed by the Ld. CIT(A).

disallowances have been made under section 40(a)(ia) of the

Act, have already incorporated the amounts involved in the

instant case in their Income Tax Return by paying the due tax,

therefore amounts involved qua 13 parties are required to be

send back to the file of AO for verification from the parties as to

whether they have incorporated the amounts involved in their

Income Tax Return and due tax was paid or not.

It was further submitted that the Ld. AR that addition qua

shipping expenses, fright & forwarding expenses be also directed

to decide in accordance to Sec.172 of the I.T. Act.

objection except relying upon the order passed by the Ld.

CIT(A).

ITA No.64/Asr/2016 (A.Y.2005-06) 3 M/s PMS Diesels, Phagwara vs. ACIT

case as the assessee has taken the stand that parties involved in

the instant case on whose basis, the addition has been made and

confirmed qua disallowances of expenses for non deduction of

TDS by invoking the provisions of Sec.40(a)(ia) of the Act have

already deposited the due tax by including the amounts involved

in the instant case in their Income Tax Return. In the said

circumstances, we set aside the addition as confirmed by the ld.

CIT(A) and restore back to the file of Ld. AO to decide afresh in

view of the proviso of Sec.40(a)(ia) read with Sec.201(1)(A) of

the Act as well as in vie of the Hindustan Coco Cola Beverage

Pvt. Ltd. vs. CIT (supra).

With regard to the addition of shipping expenses and

Freight & Forwarding charges, we feel it appropriate to direct the

Ld. AO to decide afresh in view of the para meters as prescribed

under Section 172 of the Act and rest disallowances qua legal

expenses, advertising and publicity expenses, freight &

forwarding expenses and IHC/THC/C&F expenses in accordance

with law.

ITA No.64/Asr/2016 (A.Y.2005-06) 4 M/s PMS Diesels, Phagwara vs. ACIT

The onus, either way, i.e. whether falling under section

40(a)(i) or 40(a)(ia), i.e., to show that the same is not attracted

in the facts and circumstances of the case, is on the assessee.

Order pronounced in the open Court on 28 .03.2018.

Sd/- Sd/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:28.03.2018 /PK/ Ps. Copy of the order forwarded to: (1) M/s PMS Diesels, G.T. Raod, Phagwara (2) The Addl. CIT, Phagwara (3) The CIT(A), Jalandhar (4) The CIT concerned (5) The SR DR, I.T.A.T., Amritsar True copy By order