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Income Tax Appellate Tribunal, KOLKATA BENCH ‘B’, KOLKATA
Before: Shri P.M. Jagtap, AM & Shri S.S. Viswanethra Ravi, JM]
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH ‘B’, KOLKATA [Before Shri P.M. Jagtap, AM and Shri S.S. Viswanethra Ravi, JM] I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd....................................………………………….............Appellant 18A, Park Street, Stephen Court, Kolkata – 700 071. [PAN : AABCP 9559 R] DCIT CIRCLE 8 Kolkata..………………………………………………………….............Respondent Aayakar Bhawan Poorva, 110, Shanti Pally, 6th Floor, Kolkata – 700 107. Appearances by: Shri A.N. Chatterjee, FCA appearing on behalf of the Assessee. Shri S. Dasgupta, Addl. CIT (DR) appearing on behalf of the Revenue. Date of concluding the hearing : April 05, 2018 Date of pronouncing the order : June 15, 2018 ORDER Per P.M. Jagtap, AM This appeal filed by the assessee is directed against the order of Ld. CIT(A) – 18, Kolkata dated 19.12.2016.
At the time of hearing before the Tribunal, the learned counsel for the assessee has not pressed ground no 1 raised in the appeal of the assessee. It is also noted that ground no 4 raised by the assessee in this appeal in general which does not call for specific adjudication.
The issue involved in ground no 2 relates to the addition of Rs. 1,16,51,016/- made by the AO under section 40(a)(ia) of the Income Tax Act, 1961 and confirmed by the Ld. CIT(A).
2 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd. 4. The assessee in the present case is a company which is engaged in the business of manufacturing of boilers and related accessories. The return of income for the year under consideration was filed by it on 29.09.2011 declaring a total income of Rs. 1,96,40,682/-. As noted by the AO during the course of assessment proceedings, tax at 1% was deducted by the assessee from the payments made to some sub- contractors whose permanent account numbers were neither mentioned nor available with the assessee. According to the AO, the assessee was liable to deduct tax @20% in such cases as per the provision of section 206AA and since there was short deduction of tax, he made a disallowance of Rs. 22,46,041/- on account of relevant payments made to the sub-contractors under section 40(a)(ia) of the Act. The AO also found that the assessee had made payments to two sub-contractors namely Aman Construction Co. and Biswas Construction amounting to Rs. 15,04,240/- and Rs. 98,58,240/- respectively and tax at source was deducted from the said payments at 1% instead of 2% as applicable in the case of a firm. He accordingly held that tax @2% was deducted by the assessee from the 50% of such amount and the balance amounting to Rs. 56,81,220/- was disallowed by him under section 40(a)(ia) of the Act. The AO further noted that the assessee had failed to deduct tax on cumulative payment amounting to Rs. 37,23,755/-. He accordingly disallowed the said amount also under section 40(a)(ia). Thus a total disallowance of Rs. 1,16,51,016/- was made by the AO under section 40(a)(ia) in the assessment completed under section 143(3) of the Act vide an order dated 24.03.2014.
3 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd. 5. Against the order passed by the AO under section 143(3), an appeal was preferred by the AO before the Ld. CIT(A) disputing the disallowance made by the AO under section 40(a)(ia). In support of its case on this issue, it was contended on behalf of the assessee that the disallowance u/s 40(a)(ia) could not be made for short deduction of tax and the said provision could be invoked only when there is no deduction of tax. This contention of the assessee was not found acceptable by the Ld. CIT(A) and he proceeded to confirm the disallowance made by the AO under section 40(a)(ia) for the following reasons given in his impugned order: “I have carefully considered the facts of the case and the submission of the assessee. The judgement of S.K. Tekriwal (supra) is in respect of bonafide mistake when there was some confusion regarding the nature of payments and the appropriate section of TDS applicable in that case. Under the circumstances Hon’ble Kolkata, ITAT held that assessee cannot be faulted for short deduction. In that case TDS was to be deducted u/s 194I whereas appellant had deducted tax u/s 194C(2). Similarly in other decisions, cited by the appellant, fact was that assessee had deducted tax by applying different section of the Act under bonafide belief regarding the nature of payments. This is not so in the present case. On the contrary Hon’ble Delhi ITAT in the case of DCIT vs Neemrant Hotel Pvt. Ltd., ITA No. 3134/Del/2013 has upheld the disallowance when there was short deduction of tax due to application of wrong section. Appellant’s interpretation that section 40(a)(ia) is not applicable in the case of short deduction is not acceptable. Provision of section 40(a)(ia) covers both non deduction as well as short deduction of tax at source. Now let us look at the facts of appellant’s case. Appellant had made payments of Rs. 22,46,041/- to sub contractors after deducting tax @ 1%. These sub contractors either did not have any PAN allotted in their name or the assessee did not bother to collect the same from the sub contractors. Still it went ahead and deducted tax @ 1% whereas as per the Act, it was required to deduct tax at higher rate. This cannot be held to be as bonafide mistake. Similarly in respect of payments made to sub contractors, which were firms and not individuals, appellant was required to deduct tax @ 2%, as per the act. There was no confusion in this regard. Still appellant has deducted tax only @ 1%. Here the AO has been judicious enough to disallow only 50% of the payments made to these two
4 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd. firms by considering the deducted amount as full compliance in respect of half of the payments. Under the circumstances appellant’s prayer for relief in respect of the above mentioned disallowances u/s 40(a)(ia) is not acceptable and the additions are confirmed. Now coming to the disallowance of Rs. 37,23,755/- for non deduction of tax at source, appellant’s contention that these payments were below the threshold limit of deducting tax, is not acceptable because appellant has neither provided the details of these payments at assessment stage nor in appeal proceedings. Hence the additions made of Rs. 37,23,755/- are confirmed. This ground is dismissed.”
We have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that the disallowance under section 40(a)(ia) to the extent of Rs. 22,46,041/- and Rs. 56,81,220/- was made by the AO on account of short deduction of tax at source by the assessee from the relevant payments. In the case of DCIT vs S.K. Tekriwal 260 CTR 76 cited by the learned counsel for the assessee, Hon’ble Kolkata High Court has held that section 40(a)(ia) of the Act refers only to the duty to deduct tax and pay to government account. Explaining further, it was observed by the Hon’ble Kolkata High Court that if there is any shortfall due to any difference of opinion as to the taxability of any items or the nature of payment falling under various TDS provisions, the assessee can be declared to be an assessee in default under section 201 of the Act, but no disallowance can be made by invoking the provisions of section 40(a)(ia) of the Act. Respectfully following the said decision of Hon’ble Jurisdictional High Court, we delete the disallowance made by the A.O. u/s 40(a)(ia) and confirmed by the Ld. CIT(A) to the extent of Rs. 22,46,041/- and Rs. 56,81,220/-. As regards the balance amount of Rs. 37,23,755/- disallowed under section 40(a)(ia), it is observed that disallowance to that extent u/s
5 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd. 40(a)(ia) was made by the AO and confirmed by the Ld. CIT(A) on account of the failure of the assessee to deduct tax at source from the relevant payment. At the time of hearing before us, the learned counsel for the assessee has not raised any material contention to show that the assessee was not liable to deduct tax at source from the relevant payment. It is thus clear that the assessee had failed to deduct tax at source from the payment as required under the Act and the disallowance made by the AO under section 40(a)(ia) to the extent of Rs. 37,23,755/- was rightly confirmed by the Ld. CIT(A). We, therefore, modify the impugned order of the Ld. CIT(A) on this issue and restrict the disallowance of Rs. 1,16,51,016/- made u/s 40(a)(ia) to Rs. 37,23,755/-. Ground no 2 of the assessee’s appeal is thus partly allowed.
The issue raised in ground no 3 relates to the disallowance of Rs. 3,26,412/- made by the AO and confirmed by the Ld. CIT(A) on account of donation and subscription.
In the profit and loss account filed along with its return of income, the assessee had debited a sum of Rs. 3,26,412/- on account of donations and subscriptions. During the course of assessment proceedings, the assessee however was unable to furnish any documentary evidence to establish that the expenditure on donations and subscriptions was incurred wholly and exclusively for the purpose of its business. The same therefore was disallowed by the A.O. On appeal, the Ld. CIT(A) confirmed the said disallowance as the assessee could not establish the business expediency of the expenditure incurred on donations and subscriptions.
6 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd.
We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. As submitted by the learned counsel for the assessee, the assessee is a construction company executing the work at different sites. On these sites, different pujas and functions are performed for which the assessee has to give donations and subscriptions. Although this submission of the learned counsel for the assessee shows some nexus of the expenditure incurred by the assessee on donations and subscriptions to its business, it is observed that the claim of the assessee is not fully verifiable in the absence of the relevant details and supporting documentary evidence. In our opinion, it would, therefore, be fair and reasonable to allow the claim of the assessee on account of donations and subscriptions only to the extent of 50%. We accordingly modify the impugned order of the Ld. CIT(A) on this issue and restrict the disallowance on account of donations and subscriptions to 50%. Ground no 3 of the assessee’s appeal is thus partly allowed.
In the result, the appeal of the assessee is partly allowed. Order Pronounced in the Open Court on 15th June, 2018. Sd/- Sd/- (S.S. Viswanethra Ravi) (P.M. Jagtap) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 15/06/2018 Biswajit, Sr. PS
7 I.T.A. No. 125/Kol/2017 Assessment Year: 2011-12 M/s. Power Max (India) Pvt. Ltd. Copy of order forwarded to: 1. M/s. Power Max (India) Pvt. Ltd., 18A, Park Street, Stephen Court, Kolkata – 700 071. 2. DCIT, Circle 8, Aayakar Bhawan Poorva, 110, Shanti Pally, 6th Floor, Kolkata – 700 107. 3. The CIT(A) 4. The CIT 5. DR True Copy, By order, Sr. P.S. / H.O.O. ITAT, Kolkata