AMOL ANTHONY PEREIRA,VASAI vs. ITO WD 4(1), THANE

order dated 16/11/2015 of the CIT(A)- 3,Thane,the assessee has filed present appeal.The assessee is a builder and developer and is carrying out business activity in the name of M/s. Pereira Builders and M/s. Amol Construction. It filed its return of income declaring income at Rs.10,21,360/-. The Assessing Officer (A.O) completed assessment u/s. 143(3) of the Act, on 14/02/2013, determining total income of the assessee at Rs.23,60,910/-. 2.The effective ground of appeal

is about upholding the disallowance of Rs.13.39 lakhs,u/s. 40(a)(ia)of the Act.Before us,Authorised Representative(AR) stated that the issue is covered by the order of the Tribunal,dated 19/09/2016 (ITA/No/6237/Mum/2012 for AY.2009- 10).The Departmental. Represnetative (DR) stated that matter could be decided on merits. 3.We find that while deciding the appeal,filed by the AO,for the AY. 2009-10(supra),the Tribunal has deliberated upon the identical issue as under :- “…..3. Aggrieved, the assessee challenged the assessment order before the first appellate authority. The appeal of the assessee was partly allowed. The revenue is in appeal before the Tribunal against the impugned order passed by the Ld. CIT{A) passed in the first appeal on the following effective grounds:- "1. On the facts and circumstance of the case and in law the (IT (A)-II, Thane has erred in deleting the addition of Rs. 38,70,394/-made u/s 40(a)(ia) of the I.T. Act being failure on the pan of the assessee to deduct tax. at source as per the provisions of section 194 C of the IT Act, 1961. XXXXX

6. We have heard the rival submissions and also gone through the material placed before us by the parties.The only issue in dispute is with regard to disallowance on account labour charges, transport charges and painting charges aforesaid made by the AO by invoking section 40(a)(ia) of the Act which has since been deleted by the CIT(A). We notice that the coordinate Bench has restored the similar matter to the file of AO to adjudicate the issue by [I.T.A./1559/Mum/201609-10)] following the decision of the Pune Bench of the Tribunal in ITO vs. Shri. Chandrakant J. Man dale (supra) holding as under:- "5. At the time of hearing, both the parties pointed out that the similar controversy has been decided by the Pune Bench of the Tribunal in the case of ITA vs. Mis Gaurimal Mahajan & Sons vide dated 06.01.2014 and placed the reliance in this regard. The following discussion in the order of the Tribunal is relevant:- "8. We have considered the rival arguments made by both the sides perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions brought to our notice by both the sides. There is no dispute to the fact that the assessee has not deducted TDS on an amount ofRs. 58,81,847/- for which the Assessing Officer applying the provisions of section 40(a)(ia) made addition of the above amount. We find the Ld. CIT(A) deleted the addition made by the Assessing Officer on the ground that provisions of section 40(a)(ia) are not applicable since no amount is payable at the end of the year. While doing so, he relied upon the decision of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transport (supra). The Coordinate Bench in the case of Vinay Ashwinkumar Joneja (supra) has already taken a view that provisions of section 40(a)(ia) are applicable even if no amount is payable at the end of the year. Therefore, the order of the CIT(A) has to be reversed."

6. After having reversed the order of the CIT(A), the Tribunal in the case of Mis Gaunmal Mahajan & Sons (supra) dealt with another argument of the assessee to the effect that the second proviso to section 40(a)(ia) of the Act inserted by the Finance Act, 2012 w.e.f. 01.04.2013 be applied retrospectively. Notably, the said second proviso to section 40(a)(ia) of the Act prescribes that the disallowance u/s 40(a)(ia) of the Act could not be made if an assessee is not deemed to be an assessee in default under the first proviso to section 201 (1) of the Act. The Tribunal dealt with the plea of the assessee that such amendment was intended to eliminate undue hardships to the taxpayers and therefore it should be held as retrospective in nature. On this aspect, the Tribunal in the case of Mis Gaurimal Mahajan & Sons (supra) referred to the decision of the Cochin Bench of the Tribunal in the case of Antony D. Mundackal vs. ACIT vide ITA No. 38/Coch/2013 dated 29.11.2013 and held as under:- XXXXX 7. Since the issue involved in the present case is identical to the issue involved in the case of in ITO vs. Shri. Chandrakant J. Mandale (supra) and the coordinate Bench has restored the issue to the file of AO for fresh adjudication, we respectfully following the decision of the decision of coordinate Bench of the Tribunal rendered in ITO vs. Shri. Chandrakant J. Mandale (supra), restore the matter back to the file of the A.O to adjudicate the issue afresh in accordance with the directions of Tribunal after affording an opportunity of being heard to the assessee. In the result appeal filed by the revenue for the Asst. Year 2009-10 is allowed for statistical purposes.” Respectfully following the above, order of the Tribunal,we decide accordingly. As a result, appeal filed by the assessee is allowed for statistical purposes. फलतः िनधा"रती "ारा दािखल क" गई अपील सांि"यक" उ"े"य" के िलए मंजूर $कया जाता है. Order pronounced in the open court on 05th January, 2018. आदेश क" घोषणा खुले "यायालय म" "दनांक 05 जनवरी, 2018 को क" गई । (सी. एन. "साद / C.N.Prasad ) (राजे"" / Rajendra) "याियक सद"य / JUDICIAL MEMBER लेखा लेखा लेखा सद"य लेखा सद"य सद"य / ACCOUNTANT MEMBER सद"य मुंबई Mumbai; $दनांक/Dated : 05 .01.2018. Jv.Sr.PS.