Loading judgment…
No AI summary yet for this case.
आदेश/Order
The present appeals have been preferred by the assessee against the order dated 07.05.2018 of the Commissioner of Income Tax(Appeals)-2, Ludhiana [hereinafter referred to as ‘CIT(A)’]. First we shall take up appeal of the assessee relating to assessment year 2012-13 in ITA No. 900/Chd/2018.
ITA No. 900 & 901-Chd-2018- Sh. Ashok Kumar Jain, Ludhiana 2
ITA No.900/Chd/2018 (A. (A.Y. 2012-13):
The assessee in this appeal has raised two effective grounds of
appeal:- 1. That order passed u/s 250(6) of the Income-tax Act, 1961 by the Ld. CIT(A) -2, Ludhiana is against law and facts on the file in as much as he was not justified to arbitrarily uphold the action of the Ld. Assessing officer in disallowing a sum of Rs. 6,74,616/- by resort to provisions of section 40(a)(ia) of the Act.
That he was further not justified to uphold a disallowance of Rs. 1,53,811/- out of total disallowance of Rs. 3,85,776/- out of interest account by resort to provisions of seciton36(1)(iii).
At the outset, the Ld. Counsel for the assessee has stated at bar that
as per the instructions of the client, he does not press ground No.2 of the
appeal. Ground No.2 of the appeal is, therefore, dismissed as ‘not
pressed’.
Now the only ground left for adjudication is Ground No.1 of the
appeal which relates to the disallowance made by the Assessing officer of
Rs. 6,74,616/- for non-deduction of TDS under the provisions of section
40(a)(ia) of the Act.
At the outset , Ld. Counsel for the assessee has submitted that though
the assessee had not deducted TDS on the aforesaid payments made to
certain parties, details of which have been given at page 4 of the impugned
order of the CIT(A), however, the respective payees have taken into
account these receipts while computing their income and have filed the
Income tax returns and the due taxes have been paid. He has invited the
ITA No. 900 & 901-Chd-2018- Sh. Ashok Kumar Jain, Ludhiana 3
attention of the Tribunal to the provisions of section 201 of the Income
Tax Act and has submitted that in such an event the assessee cannot be
termed as assessee in default. Further, inviting attention to the second
proviso to section 40(a)(ia) of the Act, the Ld. Counsel for the assessee has
submitted that where the assessee is not to be deemed as assessee in
default, the provisions of section 40(a)(ia) of the Act will not be attracted.
The Ld. DR, on the other hand, has submitted that as per the
provisions, the assessee was required to furnish a certificate from the C.A.
to show that the respective payments have been taken into account by the
payees for the purpose of taxation. The Ld. DR has further submitted that
second proviso to section 40(a)(ia) of the Act is prospective in nature
applicable from 1.7.2012. That the aforesaid provisions cannot be applied
retrospectively.
In rebuttal, the Ld. Counsel for the assessee has relied upon the
decision of the Hon’ble Delhi High Court in the case of ‘CIT Vs. Ansal
Land Mark Township Private Limited’ [2015] 377 ITR 635 (Delhi).,
I have considered the rival submissions and have also gone through
the record. As per the amended provision of section 40(a)(ia) of the Act,
if the assessee is not deemed to be assessee in default as per the
provisions of section 201 of the Act, the disallowance u/s 40(a)(ia) of the
Act is not attracted in respect of payments made without TDS. So far as the
retrospective applicability of these provisions of the Act is concerned,
the issue is now settled by the decision of the Hon'ble Delhi High Court in
the case of ‘CIT Vs. Ansal Land Mark Township Private Limited’ (supra)
ITA No. 900 & 901-Chd-2018- Sh. Ashok Kumar Jain, Ludhiana 4
and further by the decision of the Hon'ble jurisdictional Punjab & Haryana
High Court in the case of ‘PCIT-2, Chandigarh Vs. M/s Mobisoft
Telesolutions Private Limited’ in ITA No. 495 of 2017 (O&M) order dated
3.10.2018, wherein, the findings so arrived at by the Hon'ble Delhi High
Court in the case of ‘CIT Vs. Ansal Land Mark Township Private Limited,
(supra) have been reaffirmed. No distinguishing case law has been put
before us by the Department.
So far as the plea that the assessee has not filed the relevant
Certificate of the C.A., the Ld. Counsel for the assessee has submitted that
though the assessee had contacted the aforesaid parties and they have
disclosed that the receipts have been taken into account, however, there
was some reluctance on the part of the parties to furnish the certificate
from the accountant. The Ld. Counsel for the assessee has submitted that
he will furnish the said certificate before the Assessing officer.
In view of this, the matter is restored to the file of the Assessing
officer to examine afresh the contention of the assessee and if it is found
that the respective payees have taken into account the receipts received
from the assessee, filed their returns, paid the due taxes, then the
impugned disallowance u/s 40(a)(ia) of the Act will not be attracted.
With the above observations, the appeal of the assessee is treated as
allowed for statistical purposes.
ITA No. 901/Chd./2018 (A.Y. 2013-14)
At the outset, Ld. Counsel for the assessee has submitted in writing that the assessee is not interested in pursuing this appeal, as
ITA No. 900 & 901-Chd-2018- Sh. Ashok Kumar Jain, Ludhiana 5
such, he intends to withdraw the present appeal. The Ld. DR has no objection for the said withdrawal.
In view of the above, permission is hereby granted to the assessee to withdraw the appeal. Consequently, this appeal of the assessee is hereby dismissed as ‘Withdrawn’
Order dictated and pronounced in the Open Court immediately on completion of hearing.
(संजय गग� / SANJAY GARG) �या�यक सद�य/ Judicial Member Dated : 19.12. 2018 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar