ACIT 16(2), MUMBAI vs. MOHAMED YAHYA ABDUL GANI BATAWALA, MUMBAI

PDF · subscribers
ITA 3356/MUM/2014Status: DisposedITAT Mumbai29 December 2017AY 2010-115 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal upheld the CIT(A)'s order, finding that the assessee had provided a bifurcation of expenses, distinguishing between hire charges subject to TDS and other purchases not requiring TDS. The revenue failed to provide evidence to contradict the CIT(A)'s findings.

What were the facts?

The assessee claimed hire charges as business expenses, but failed to deduct Tax Deducted at Source (TDS) as required under Section 194I. The Assessing Officer disallowed these expenses under Section 40(a)(ia). The CIT(A) partly allowed the appeal, deleting the addition made towards hire charges.

What were the issues?

Whether the disallowance of hire charges under Section 40(a)(ia) was justified when the assessee claimed a portion of the payment was for other purchases not subject to TDS. Whether the CIT(A) erred in admitting additional evidence without affording the AO an opportunity to comment.

Which sections of the Income-tax Act were involved?

Section 40(a)(ia),Section 194I

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI

Before: Shri D.T. Garasia & Shri G Manjunatha

For Appellant: Shri T.A. Khan

Date of hearing 04-12-2017 Date of pronouncement 29-12-2017 O R D E R

Per G Manjunatha, AM :

1.

This appeal filed by the revenue is directed against the order of the CIT(A)-27, Mumbai dated 26-02-2014 and it pertains to AY 2010-11. The revenue has raised the following grounds of appeal:-

“1 Whether on the facts and circumstances and in law, the Ld. CIT(A) erred in allowing of expenses of Rs.52,24,150/- u/s 40(a)(ia) of the Act ignoring the fact that in the course of assessment proceedings, the assessee had claimed the expenses as hire charges where in TDS is mandatory in nature which was not deducted by the assessee against the hire charges paid to the clients?"

2 Whether on the facts and circumstances and in law, the Ld.

CIT(A) in allowing expenses at the time of appellate proceedings in contravention of Rule 46A of the Act?"

2.

The brief facts of the case are that the assessee is an individual, engaged in the business of general offshore suppliers and hire of vessels, filed his return of income for the assessment year 2010-11 on 14-10-2010 declaring total income of Rs.67,44,729. The case was selected for scrutiny by CASS and notices u/s 143(2) and 142(1) were issued. In response to notices, authorized representative of the assessee appeared from time to time and filed the details, as called for.

The assessment was completed u/s 143(3) on 11-03-2013 determining total income at Rs.1,22,57,804 interalia making additions towards Income from house property and disallowance of hire charges u/s 40(a)(ia) for failure to deduct tax at source u/s u/s 194I. Aggrieved by the assessment order, assessee preferred appeal before the CIT(A). The CIT(A), for the detailed discussion made in his order dated 26-02-2014 has partly allowed appeal filed by the assessee wherein he has allowed partial relief in respect of addition made towards Income from house property and deleted addition made by the AO towards hire charges u/s 40(a)(ia). Aggrieved by the order of CIT(A), the revenue is in appeal before us.

3.

The Ld.DR submitted that the Ld.CIT(A) erred in allowing expenses of Rs.52,24,150 u/s 40(a)(ia) of the Act, ignoring the fact that in the course of assessment proceedings, assessee had claimed expenses on hire charges where TDS is mandatory in nature which was not deducted as per the provisions of section 194I. The Ld.DR further submitted that the Ld. CIT(A) erred in Rule 46A of the IT Rules, without affording an opportunity of hearing to the AO to offer his comments on admissibility or otherwise of additional evidences filed by the assessee.

4.

None appeared for the assessee.

5.

We have heard the Ld.DR, perused the material available on record and gone through the orders of authorities below. The solitary issue that came up for our consideration is disallowance of hire charges u/s 40(a)(ia) of the Act for failure to deduct tax at source u/s 194I. The AO disallowed hire charges of Rs.52,24,150 on the ground that the assessee has debited expenditure under the head ‘hire charges’; however, failed to deduct tax at source u/s 194I even though the impugned expenditure is liable for TDS. The AO further observed that though assessee claims to have deducted TDS on hire charges excluding cost of samples, failed to justify his claim with necessary evidences. It is the contention of the assessee that hire charges paid to M/s General Offshore International and M/s General Marine & Diving Enterprises includes sample item. The assessee further submitted that he had deducted TDS on hire charges excluding samples and the relevant details has been furnished to the AO. The AO has ignored all evidences filed to make disallowance on the ground that the assessee has failed to file break up of expenses to prove hire charges is inclusive of sample items and hence, there was a requirement of deduction of TDS on such payment. We find force in the arguments of the assessee for the reason that the assessee has furnished bifurcation of expenses incurred under the head ‘ hire charges’ which includes other purchases on which TDS was not required to be deducted with names of the parties to whom payment is made. The CIT(A) has recorded a categorical finding in respect of hire charges and other purchases which is included in amount paid to M/s General Offshore International and M/s General Marine & Diving Enterprises, in his order at para 2.4.5. on page 6. The relevant observations of the CIT(A) is extracted below:-

“2.4.5 Per contra, Ld. AR has submitted that following are the details of hire charges and other purchases which were also submitted before the Ld. AO during the course of assessment proceedings vide appellant's letter dated 15-02- 2013 General Offshore International (Prop. Shri Mohamed Yahya Abdul Gani Batatawala): Hire charges paid on which TDS made 20,66,746/- Other purchases on which TDS not deductible with 25,84,597/- names of the parties given. TOTAL Rs. 46,51,343/- B) General Marine & Diving Enterprises (Prop. Shri Mohamed Yahya Abdul Gani Batatawala): Hire charges paid on which TDS made 27,96,278/- Other purchases on which TDS not deductible with 26,39,553/- names of the parties given. TOTAL 54,35,831/-“

6.

The facts remain unchanged. The revenue fails to bring on record any evidences to prove findings of fact recorded by the Ld.CIT(A) is incorrect.

Therefore, we are of the view that the CIT(A) was right in deleting addition made

AO towards disallowance of hire charges u/ 40(a)(ia) for failure to deduct TDS. Hence, we are inclined to uphold the order of CIT(A) and dismiss the appeal filed by the revenue.

7.

In the result, the appeal filed by the revenue is dismissed.

Order pronounced in the open court on 29th December, 2017.

More judgments on Section 40(a)(ia)

All 7,300 judgments and leading authorities on Section 40(a)(ia) →

Recent GST High Court judgments

Search GST case law →