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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. SANJAY ARORA & SH. N.K.CHOUDHRY
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’).
The facts of the case are already on record and hence are
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).
The Ld. AR submitted that parties against whose amounts,
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.
On the other hand, the ld. DR has not raised any specific
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
We have gone through the facts and circumstances of the
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.
In the result, the appeal filed by the assessee is allowed.
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