EXOTIC CUISINES P.LTD,NAVI MUMBAI vs. ASST CIT RG 10(2), MUMBAI

सुनवधई की तधयीख / Date of Hearing : 9.6.2016 घोषणध की तधयीख /Date of Pronouncement : 12. 08.2016 आदेश / O R D E R

Per RAJESH KUMAR, Accountant Member:

is against the sustaining the disallowance of Rs.33,63,116/- by ld.CIT(A) as made by the AO under the provisions of section 40(a)(ia) of the Income Tax Act, 1961 for non deduction of tax at source.

3. Brief facts of the case are that the assessee filed its return of income on 30.9.2009 declaring total income of Rs.2,28,48,303/- which was revised on 22.1.2010 declaring the same income. The return so filed by the assessee was processed u/s 143(1) of the Act. Thereafter, scrutiny proceedings were initiated against the assessee and statutory notices under section 143(2) and 142(1) were issued and served upon the assessee. The AO during the course of assessment proceedings found that the assessee has not deducted TDS on certain expenses or short deducted the tax and accordingly issued show cause notice to the assessee as to why the provisions of section 40(a)(ia) of the Act should not be invoked, which was replied by the assessee vide its letter dated 22.12.2011 by giving details of expenses on which no deduction of tax at source/short deduction of tax were made. The AO after considering the reply of the assessee calculated the disallowance at Rs.33,74,617/- u/s 40(a)(ia) of the Act after giving observations as incorporated in para 4.2 of the assessment order and completed the assessment vide order dated 26.12.2011 by assessing the income at Rs.2,62,22,920/- after allowing the set off of brought forward business losses of Rs.11,02,900/-. Aggrieved by the order of the AO, the assessee preferred an appeal before the ld.CIT(A) who dismissed the appeal of the assessee by rejecting the contention that the payment was made before the closing of financial year in most of the cases and further submitted that the decision as relied upon by the assessee of the Special Bench of Vishakapatnam Tribunal in the case of Merlyn Shipping Transport Co in of 2012 was stayed by the Hon’ble assessee by holding that the provisions of section 40(a)(ia) of the Act for non deduction of tax at source was rightly invoked to make the disallwoance.