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Income Tax Appellate Tribunal, C/“SMC” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
1. This appeal is filed by the assessee, aggrieved by the order of the Learned Commissioner of Income Tax(A)-13, Chennai dated 13.07.2017 pertaining to assessment year 2013-14.
The assessee raised the following grounds for adjudication.
The order of the Commissioner of Income Tax (Appeals) is incorrect, opposed to law and facts and is liable to be set aside.
2.1 The Commissioner of Income Tax (Appeals) erred in holding that the Return filed u/s.139(5) is invalid and non est.
2.2 The Commissioner of Income Tax (Appeals) erred in not appreciating the fact that the disallowance uls.40(a)(ia) was no longer required, which is a bona fide mistake and thus ought to have accepted the revised return.
2.3 The Commissioner of Income Tax (Appeals) erred in not noting the fact that in any case, the disallowance u/s.40(a)(ia) is unwarranted in so far as the tax deductible on the said sum has been remitted to the exchequer on or before the due date for filing the return of income.
3. As an alternate contention, without prejudice to the above grounds, the Commissioner of Income Tax (Appeals) ought to have allowed the amount of Rs. 14,09,819/- in the subsequent year in which the TDS was remitted. The Commissioner of Income Tax (Appeals) has erred in not considering this specific plea raised before him.
The brief facts of the case are that the assessee, Shri Vimal Balvant Mavani HUF e-filed return of income on 01.10.2013 admitting an income of `18,65,540/- At that time, the assessee had not paid the deducted tax of `14,09,819/- required to be deducted u/s.194H of the Act. Therefore, the assessee filed a revised return of income at `4,55,720/-, this time withdrawing the disallowance of `14,09,819/- made in the original return of income.
3.1 The case was selected for scrutiny under CASS. The issue before the AO was whether the second return furnished by the assessee (HUF) could be treated as revised return. In the first return of income, the assessee on his own disallowed sum of `12,09,891/- as interest payment without TDS and `2,00,000/- and commission payment without TDS u/s 40(a)(ia) of the Act. The assessee has furnished the first return before the due date u/s 139(1) of the Act.
The same was also processed u/s 143(1) of the Act. Meanwhile, date for filing u/s 139 was extended, so assessee paid the TDS in to Government account and thereafter filed another return u/s 139(5) of the Act. However, the assessing officer based on clean reading of the section 139(5) of the Act did not treat the second return filed as revised return u/s 139(5) of the Act as the same was filed after processing of return u/s 143(1) of the original return. And thereby treated the second return filed u/s 139(5) of the Act as an invalid return and treated it as non- ext. Aggrieved by this, the assessee carried the appeal before Ld.CIT(A). On appeal, Ld.CIT(A) confirmed the order of ld. Assessing Officer. Against the order of Ld.CIT(A), now the assessee is in appeal before Tribunal.
I have heard both the parties and perused the material on record. In this case, the tax has been deducted and remitted to the Central Government as below:-
Amount paid (`) TDS (`) Dated 1,00,000/- 11,200/- 21.10.2013 11,200/- 21.10.2013 1,00,000/- 1,31,870/- 21.10.2013 12,09,819/- As per CBDT Circular No.225/117/2013/ITA.II dated 26.09.2013, the due date for filing of return and audit report electronically is extended upto 31st October, 2013, which was originally on or before 30th September, 2013 for assessment year 2013-14. As per first proviso to Sec.40(a)(ia) of the Act, if the assessee deducted the TDS and paid the same before the due date of filing return u/s.139(1) of the Act, it is to be allowed as deduction.
4.1 In the present case, the date for filing the return has been extended to 31.10.2013. The return filed by the assessee cannot be considered as a return u/s.139(5) of the Act instead it should be considered as the return filed in terms of Sec.139(1) of the Act.
Accordingly, we direct the ld. Assessing Officer to allow the same.
In the result, the appeal of assessee is allowed.
Order pronounced on 21.12.2017