ITO, WD-12(1), KOLKATA, KOLKATA vs. M/S SHILPA CREATION PVT. LTD., KOLKATA

आदेश /O R D E R PER Waseem Ahmed, Accountant Member:- This appeal by the Revenue is against the order of Commissioner of Income Tax (Appeals)-XII, Kolkata dated 22.07.2014. Assessment was framed by ITO Ward- 12(1), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 24.12.2007 for assessment year 2005-06. The grounds raised by the Revenue per its appeal are as under:- “1. That in the facts and in law of the case the Ld. CIT(A) erred in deleting the addition amounting to Rs.62,29,920/- and Rs.7,27,652/- added by the AO u/s 40(a)(ia)

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 2 2. That in the facts and in law of the case the Ld. CIT(A) erred in accepting that provision of section 40(a)(ia) is not applicable on reimbursement of expenses. 3. That in the facts and in law of the case the Ld. CIT(A) erred in accepting fresh evidence during the appellate stage. 4. That the ape craves for leave to add, delete or modify any of the grounds of appeal before or at the time of hearing.” Shri Robin Chowdhury, Ld. Departmental Representative represented on behalf of Revenue and Shri S.M. Surana, Ld. Advocate appeared on behalf of assessee. 2. Ground No. 1 to 3 are inter-related and therefore being taken up together. The sole issue raised by Revenue in this appeal is that Ld. CIT(A) erred in deleting the addition made by Assessing Officer for ₹62,29,920/- and ₹7,27,652/- on account of non-deduction of Tax Deducted at Source (TDS for short). 3. Briefly, the facts are that the assessee is a private limited company and engaged in business of manufacturing, trading and exporting of leather goods & textile garments. The assessee in the year under consideration has claimed certain expenses for ₹79,36,548/- under the head fabrication, bleaching, netting and sewing charges without deducting TDS u/s 194C of the Act. On question by the AO for non-deduction of TDS, assessee failed to reply. Therefore, AO disallowed the same and added to the total income of assessee. 4. Aggrieved, assessee preferred an appeal before Ld. CIT(A) wherein it was submitted by assessee that the amount of expenses for ₹79,36,546/- represented the reimbursement of expenses. Therefore the assessee is not under the obligation to deduct the TDS on such expenses. Accordingly, Ld. CIT(A) called for remand report from the AO on the submission made by the assessee. The AO in turn submitted the remand report vide dated 14.07.2014 wherein it was stated as under:- i) The assessee failed to produce the books of account despite of the fact it was reminded to it several times; ii) The party to whom the expenses were reimbursed failed to reply in response to the notice issued u/s. 133(6) of the Act. It was also apprehended that some of the bills were fabricated and those were prepared by same persons though the bills were issued by different parties.

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 3 In view of the above, AO in its remand report submitted that the claim of assessee that the expenses are representing the reimbursement of expense is not proved. The assessee has committed fault on account of non-deduction of TDS as per the provision of law. The remand report was forwarded to assessee for its comment but assessee in compliance thereto submitted that all the books of account, original bills in respect to reimbursement of expenses were duly submitted before AO but he failed to consider the same. However, Ld. CIT(A) after considering the remand report and submission of assessee granted relief in part by observing as under:- “4.1.1 After careful consideration of the appellant’s submissions, the remand report and the rejoinder to the remand report and perusing the facts of the case, I find that the issue with regard to the disallowance of Rs.79,36,545/- u/s. 40(a)(ia) for non-deduction of tax was sent back to the AO with specific direction to allow the expenses in so far as the same related to the reimbursement of such expenses. From the remand report it is evident that the AO did examine the bills issued by the parties and has adversely commented on the iss9ue with regard to the reimbursement of the expense as claimed by the appellant. The AO has doubted the genuinety of the payments itself. However, I agree with the contention of the AR that the said issue was neith4er there in the original assessment order nor in the directions of the order of Commission of Income tax (A) in the first round of appeal,. It is seen from the details that the appellant filed full details of the expense on which the provisions of section 40(a)(ia) were applied out of which substantial amounts of reimbursement made to the parties. From the details filed it was evident that out of the clearing and forwarding expenses of Rs.7,81,563/- Rs.7,27,652/ were on account of reimbursements. Similarly from another details for the expenses under the head clearing and forwarding expenses, Air Fright, fabrication charges, dying charges, bleaching charges, design and printing charges, etc to the extent of Rs.67,18,533/-, Rs.62,29,920/- were on account of reimbursement of the expenses the appellant also produced the original bills issued by each of the parties from which it was evident that the aforesaid expenses were on account of reimbursement of the expenses. Further the AO doubted the genuinety of payments itself only in respect of three parties out of a number of parties. He has nowhere doubted or disputed that the payments were not on account of reimbursement as was evident from the bills. Moreover, the AO has not commented on with regard to the expenses in so far as the same related to the reimbursement of the clearing and forwarding expenses. I have also examined the original bills and found that there is clear mentioning of the reimbursement of the expenses in the said bills.” The Revenue, being aggrieved, is in appeal before us.

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 4 5. Ld. DR before us submitted that the copies of original bills representing the expenses as discussed above were not produced at the time of assessment proceedings as well as appellate stage. Therefore the Ld. CIT(A) erred in accepting the additional evidence produced by assessee before him as per the provision of Rule 46A of the IT Rules, 1962. Ld. DR heavily relied on the order of AO. On the other hand, Ld. AR before us submitted that all the necessary details were duly submitted at the time of remand proceedings and no additional evidence has been accepted by Ld. CIT(A) in contravention to Rule 46A of the IT Rules. He further submitted that the provisions of TDS are not applicable on the reimbursement of expenses. The ld. AR in support of his claim relied on the judgment of Hon’ble Delhi High Court in the case of CIT Vs. DLF Commercial Project Corporation in ITA 627/2012 & 507/2013 vide order dated 15-7-2015. Ld. AR alternatively submitted that the provisions of TDS are not applicable as the parties to whom the charges were paid have disclosed the same in their respective returns. In this connection, Ld. AR relied on the second proviso to Section 40(a)(ia) of the Act. 6. We have heard the rival contentions of both the parties and perused the materials available on record. In the instant case disallowance of expenses was made by AO as discussed above on account of non-deduction of TDS under the provision of Section 194C of the Act. However, assessee before Ld. CIT(A) claimed that the above expenses represented the reimbursement of the expenses and therefore the provision of Section 194C r.w.s. 40(a)(ia) of the Act are not applicable. Accordingly the relief was granted by Ld. CIT(A) to assessee in part.

6.1 However, at the time of hearing before us a query was raised from the Bench to the Ld. AR whether the parties on whose behalf expenses were incurred had deducted the TDS at the appropriate rate specified under the provision of law. Ld. AR failed to reply. Therefore, we do not find any merit in the arguments placed by Ld. AR before us. Besides, Ld. AR relied on the judgment of Hon'ble Delhi High Court in the case of CIT vs. M/s DLF Commercial Project Corporation ITA No.627/2012 & 507/2013 dated 15.07.2015. The relevant extract of the order is reproduced below:-

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 5 “19. In the instant case, it is undisputed that M/s DLF Land Ltd had deducted TDS on the payments made by it under various heads on behalf of the assessee. Further, it is also not disputed that he assessee deducted TDS on the service charge paid by it to M/s DLF Land Ltd on the reimbursement expenses. In such circumstances, this court holds that the entire amount paid by the assessee to M/s DLF Land Ltd is entitled to deduction as expenditure.” On perusal of the above precedent, we observe that assessee deducted TDS on service charges paid to M/s DLF Land Ltd on the reimbursement of expenses. Therefore, in our considered view the case law relied upon by Ld. AR for the assessee does not support the case in hand. Thus, we hold that even the expenses are representing the reimbursement do not fall outside the purview of TDS in the instant case. However, we find force in the alternate argument placed by Ld. AR for the assessee before us that there is an amendment under the provision of Section 40(a)(ia) of the Act. We note that there is amendment in the 1st proviso to Sec. 201, wherein, if any payee has paid the taxes by offering / disclosing the said receipt in its return of income, then the payer (the assessee herein) should not be treated as assessee in default. The said proviso reads as under : Consequences of failure to deduct or Pay 201. (1) Where any person, including the principal officer of a company,— (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (1A) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: [Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident— (i) has furnished his return of income under section 139; (ii) has taken into account such sum for computing income in such return of income; and (iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this effect from an accountant in such form as may be prescribed:]

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 6 The said proviso though inserted by the Finance Act 2012 w.e.f. 1-4-2013 has been held to be retrospective in operation by recent decision of the Hon'ble Delhi High Court in the case of CIT v. Ansal Land Mark Township (P) Ltd. (2015) 61 taxmann.com 45 (Del) wherein the question raised before the court and the decision rendered thereon is reproduced herein below for the sake of clarity:- “Question: Whether the second proviso to Section 40(a)(ia) (inserted by the Finance Act, 2012), which states that TDS shall be deemed to be deducted and paid by a deductor if resident recipient has disclosed the amount in his return of income and paid tax thereon, is retrospective in nature or not?” Held: Section 40(a)(ia) was introduced by the Finance (No.2) Act, 2004 to ensure that an expenditure should not be allowed as deduction in the hands of an assessee in a situation where income embedded in such expenditure has remained untaxed due to tax withholding lapses by the assessee. Hence, section 40(a)(ia) is not a penalty provision for tax withholding lapse but it is a provision introduced to compensate any loss to the revenue in cases where deductor hasn’t deducted TDS an amount paid to deductee and, in turn, deductee also hasn’t offered to tax income embedded in such amount The penalty for tax withholding lapse per se is separately provided under section 271C and, therefore, section 40(a)(i) isn’t attracted to the same. Hence, an assessee could not be penalized under section 40(a)(ia) when there was no loss to revenue. The Agra Tribunal in the case of Rajiv Kumar Agarwal-vs-ACIT [2014] 45 taxmann.com 555 (Agra – Trib) had held that the second proviso to Section 40(a)(ia) is declaratory and curative in nature and has retrospective effect from 1st April, 2005, being the date from which sub-clause (ia) of section 40(8) was inserted by the Finance No.(2) Act, 2004, even though the Finance Act, 2012 had not specifically stated that proviso is retrospective in nature. The High Court affirmed the ratio laid down by the Agra Tribunal and held that said provisos is declaratory and curative in nature and ha retrospective effect from 1st April, 2005.”

Respectfully following the aforesaid decision of the Hon'ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd., (supra) we deem it fit and appropriate in the interest of natural justice and fair play to set aside this issue to the file of AO to decide the issue afresh in the light of the aforesaid judgment. Accordingly, we direct the AO to verify whether the payees have included the subject-mentioned receipts in their respective returns and paid taxes thereon or not. If that is so, then the assessee

ITA No.1729/Kol/2014 A.Y.2005-06 ITO Wd-12(1) Kol Vs. M/s Shilpa Creation Pvt. Ltd. Page 7 should not be treated as assessee in default u/s. 201(1) of the Act. Accordingly, Revenue’s ground is allowed for statistical purposes.

In the result, for statistical purpose, the appeal for Revenue is 7. treated partly allowed. Order pronounced in open court on 08/11/2017 Sd/- Sd/- (�या%यक सद'य) (लेखा सद'य) (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp, Sr.P.S )दनांकः- 08 /11/2017 कोलकाता / Kolkata आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. अपीलाथ�/Appellant-ITO Ward-12(1) Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-69 2. ��यथ�/Respondent-M/s Shilpa Creation Pvt. Ltd. 3/2, Green Park, Kolkata-19 3. संबं,धत आयकर आयु-त / Concerned CIT 4. आयकर आयु-त- अपील / CIT (A) 5. .वभागीय �%त%न,ध, आयकर अपील�य अ,धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड2 फाइल / Guard file. By order/आदेश से, /True Copy/ Sr. Private Secretary Head of Office/DDO आयकर अपील�य अ,धकरण, कोलकाता