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Income Tax Appellate Tribunal, KOLKATA BENCH “A” KOLKATA
Before: Shri N.V.Vasudevan & Shri Waseem Ahmed
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the Revenue is directed against the order of Commissioner of Income Tax (Appeals), Central-I, Kolkata dated 12.02.2014. The assessee has filed Cross Objection (CO) against the appeal filed by the Revenue. Assessment was framed by DCIT, Central Circle-VII, Kolkata u/s
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 2 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 31.03.2013 for assessment year 2009-10. Shri Anand Kumar Singh, Ld. Departmental Representative represented on behalf of Revenue and Shri S. Jhajharia, Ld. Authorized Representative appeared on behalf of assessee. First we take up Revenue’s appeal in ITA No.856/ol/2014 for A.Y. 09-10. 2. Facts in brief are that assessee in the present case is a Limited Company and engaged in the business of real-estate, construction of building and promotion. The assessee filed its return of income on 30.09.2009 declaring total income of ₹9,49,918/-. Originally the assessment was framed u/s. 143(3) of the Act at a total income of ₹11,57,200/-. Thereafter the case was selected u/s 147 of the Act on the ground that the income of assessee has escaped assessment. Accordingly, notice u/s 148 of the Act was issued on 03.04.2012. The assessment was completed u/s 147 of the Act at a total income of ₹72,68,110/- after making certain disallowance / additions to the total income of the assessee. 3. The first issue raised by Revenue in this appeal is that Ld. CIT(A) erred in deleting the addition of ₹9,17,076/- made by the Assessing Officer on account of non deduction of Tax Deducted at Source (TDS for short) u/s. 40(a)(ia) of the Act. 4. During the course of assessment proceedings, AO observed that assessee has incurred expense towards the technical and professional charges aggregating to ₹12,05,742/- without deducting the TDS u/s 194J of the Act. Accordingly, the AO sought clarification from the assessee for non- deduction of TDS. The assessee in compliance thereto assessee could not make any satisfactory reply. Therefore, the AO disallowed the same u/s 40(a)(ia) of the Act and added to the total income of the assessee. 5. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that out of total expenses a payment of ₹9,17,076/- was made to M/s Agarwal & Agarwal. The payment to M/s Agarwal & Agarwal was in the nature of capital expense. Therefore, the same
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 3 was capitalized as work-in-progress as the expense of ₹9,17,076/- was not claimed in revenue account. There is no question of disallowance of the same due to non-deduction of TDS. The Ld. CIT(A) after considering the submission of assessee has deleted the addition made by the AO. Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us.
Before us both the parties relied on the orders of Authorities Below as favourable to them.
We have heard the rival submissions of both the parties and perused the materials available on record. It is the admitted fact that the assessee has no deducted any TDS on the impugned expenses on the ground that the relevant expenses were capitalized as work in progress. Since the expenses has not been claimed in the profit and loss account, the question of any disallowance under section 40(a)(ia) of the Act does not arise. However the Revenue is disputing the allowability of the above expenses on account of two reasons, firstly, such expenses are not eligible for deduction under the provisions of section 40(a)(ia) of the Act, secondly, the relief has been given to the assessee on the basis of additional evidences which were admitted in contravention to the provisions of rule 46A of Income Tax Rules 1962. Amounts not deductible. 40. Notwithstanding anything to the contrary in sections 30 to 38[38], the following amounts shall not be deducted in computing the income chargeable under the head “Profits and gains of business or profession”,— (a) in the case of any assessee— 40[(i) ------------ (ia) any interest, commission or brokerage, 41[rent, royalty,] fees for profes- sional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction,
A careful analysis to the above provisions of Section 40(a)(ia) of the Act reveals that it is applicable to sums allowable u/s 30 to 38 of the Act. Hence, if
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 4 any capital expense is allowable as deduction u/s 30 to 38 of the Act while computing income under the head “Profits and gains from business or profession”, the same will be covered u/s 40(a)(ia) of the Act. Now, the issue arises where the claim of depreciation u/s 32 of the Act is covered u/s 40(a)(ia) of the Act. The provisions of Section 40(a)(ia) of the Act is applicable to payments specified therein which are allowable u/s 30 to 38 of the Act. Since the claim of depreciation is not payment or expenditure in strict sense but the same is statutory allowance, so strictly the claim of depreciation will not be covered u/s 40(a)(ia) of the Act. Further, the actual cost and WDV is defined in Section 43 of the Act and provisions of Section 40(a)(ia) of the Act does not override the provisions of Section 43 of the Act. In the case of Shri Vishnu Anant Mahajan vs. ACIT in ITA No. 3002/Ahd/2009 for A.Y. 2006-07 the Hon’ble Special Bench ITAT, Ahmedabad vide its order dated 25.05.2012, after relying on the decision of the Hon’ble Hon'ble Supreme Court in the case of Nectar Beverages P Ltd vs. DCIT reported in 314 ITR 314 (SC) and of Hon’ble Mumbai ITAT in the case of Hoshang D Nanavati vs. ACIT in ITA No. 3567/Mum/2007 has held that “Depreciation” is not an expenditure but the same is statutory deduction. In view of above, we are of the considered opinion that the provisions of section 40(a)(ia) of the Act is not applicable in the instant case. Therefore, there is no question of deducting the TDS on capital expenditure. We also disagree with the allegation of the Revenue that the relief has been given on the basis of additional evidences. It is because we find that at the time of assessment, the assessee has filed written submission which has been duly recorded by the AO in his assessment order. Moreover, the ld DR has not brought anything on record contrary to the finding of ld CIT(A). Hence, the issue raised by the Revenue is dismissed.
The next issue raised by the Revenue is that ld CIT(A) erred in deleting the addition of Rs.49,05,549/- made by the AO on account of short deduction of TDS.
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 5 9. The assessee, in the year under consideration has incurred an expense of Rs.1,93,20,793.00 towards labour charges, contractors, technical and professional charges. The assessee was required to deduct the taxes of Rs. 4,85,839.00 but in actuality it deducted TDS of Rs. 3,62,467.00 only. Therefore, short deduction of TDS for Rs.1,23,372/- was made by the assessee. Accordingly, the AO has disallowed proportionate expenses of Rs.49,05,549/- under the provisions of section 40(a)(ia) of the Act and added to the total income of the assessee.
Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the provisions of section 40(a)(ia) of the Act are not applicable in case of short deduction of the TDS. The Ld. CIT(A) after considering the submission of assessee has deleted the addition made by the AO.
Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us.
Before us both the parties relied on the orders of Authorities Below as favourable to them.
12 We have heard the rival submissions of both the parties and perused the materials available on record. At the outset we find that the present issue has already been decided in favour of assessee by the judgment Hon’ble jurisdictional High Court in the case of CIT Vs. M/s S.K Tekriwal reported in 260 CTR 73 wherein it was held as under:-
“Conditions laid down u/s. 40(a)(ia) of Act for making addition was that tax was deductible at source and such tax has not been deducted. If both conditions are satisfied then such payment can be disallowed u/s. 40(a)(ia) of Act but where tax was deducted by assessee, even under bonafide wrong impression, under wrong provisions of TDS, provisions of section 40(a)(ia) of Act cannot be invoked. Here in present case, assessee has deducted tax u/s. 194C(2) of Act and not u/s. 194I of Act and there is no allegation that TDS was not deposited with Government account. Provisions of section 40(a)(ia) of
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 6 Act has two limbs one is where, inter alia, assessee had to deduct tax and second where after deducting tax, inter alia, assessee had to pay into Government Account. There is nothing in said section to treat, inter alia, assessee as defaulter where there is a shortfall in deduction. With regard to shortfall, it cannot be assumed that there is a default as deduction was not as required by or under Act, but facts is that this expression, ‘on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction has not been paid on or before the due date specified in sub-section 3 (1) of section 139’. This section 40(a)(ia) of Act refers only to duty to deduct tax and pay to government account. If there is any shortfall due to any difference of opinion as to taxability of any item or nature of payments falling under various TDS provisions, assessee can be declared to be an assessee in default u/s. 201 of Act and no disallowance can be made by invoking provisions of section 40(a)(ia) of Act. Accordingly, order of CIT (A) allowing claim of assessee was confirmed and this issue of revenue’s appeal was dismissed. No substantial question of law was involved in this case. Appeal was dismissed. Expenses are not liable to be disallowed u/s 40(a)(ia) on account of short deduction of tax at source”
The principles laid down by the Hon’ble jurisdictional High Court of Calcutta in the case of M/s S.K Tekriwal (supra) are exactly identical to the facts of the present case. In the case on hand the disallowance was made on account of short deduction. In case of short deduction the Hon’ble Calcutta High Court has held that the disallowances cannot be made under the provisions of section 40(a)(ia) of the Act. Thus, we find no reason to interfere in the order of ld CIT(A). Hence, the ground of appeal raised by the revenue is dismissed.
Next issue raised by Revenue in this appeal is that Ld. CIT(A) erred in admitting the additional evidence against the provision of Sec.46A(2) of the Income Tax Rules, 1962. 14 At the outset, it was observed that AO in his assessment order has given very clear-cut finding that the written submission was filed by assessee and therefore, in our considered view, it cannot be said that Ld. CIT(A) has admitted the additional evidence in contravention of the provision of Rule 46A. In rejoinder Ld. DR has also not brought anything on record contrary to the finding of Ld. CIT(A). Hence, we find no interference in the order of Ld. CIT(A) and this ground of Revenue is dismissed.
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 7 15. In the result, Revenue’s appeal is dismissed. Coming to assessee’s CO No.64/Kol/2014. 16. The assessee in its CO has challenged the re-assessment proceedings initiate u/s. 147 of the Act. 17. At the outset, we find that the issue on merit has already been adjudicated by us in favour of assessee, therefore we are not inclined to adjudicate the CO raised by assessee in its CO on technical matter. Hence, the ground raised in CO is dismissed as infructuous.
Next issue raised in CO is that there was violation of provision of Rule 46A of the IT Rules. We have already held that there was no additional evidence admitted by Ld. CIT(A) in contravention the provision of Rule 46A of the IT Rules in Revenue’ appeal (ITA No.856/Kol/2014) vide para-14 of this order. Hence, the ground raised in CO is allowed.
Next issue raised in CO is that Ld. CIT(A) was correct in holding that the provision of Sec. 40(a)(ia) of the Act are not applicable in the case where short deduction of TDS has been made and we have already allowed the issue raised in CO of assessee in its favour and in the appeal of Revenue in ITA No.856/Kol/2014 (supra). Hence, the ground raised in CO is allowed. 20. We summarize the results as under: (1) Revenue’s appeal is dismissed (2) Assessee’s CO is partly allowed Order pronounced in the open court 22/03/2017
Sd/- Sd/- (�या�यक सद�य) (लेखा सद�य) (N.V.Vasudevan) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata,
*Dkp, Sr.P.S �दनांकः- 22/03/2017 कोलकाता ।
ITA No.856/Kol/2014 & CO64/Kol/2014 A.Y. 2009-10 DCIT CC-VII, Kol. Vs. M/s Saltee Infrastructure Ltd. Page 8 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. आवेदक/Assessee- 2. राज�व/Revenue-DCIT, Central Circle-VII, Aayakar Bhawan, Poorva, 110, Shantipally, Kolkata-107 3. संबं�धत आयकर आयु�त / Concerned CIT Kolkata 4. आयकर आयु�त- अपील / CIT (A) Kolkata 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 6. गाड� फाइल / Guard file. By order/आदेश से, /True Copy/ उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, कोलकाता ।