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2013 (5) TMI 786 - ITAT HYDERABADReopening of assessment - Held that:- The Commissioner of Income-tax (Appeals) had not at all adjudicated the said ground and decided the appeal on merits. Being so, it is proper to remit this reopening issue to the file of the Commissioner of Income-tax (Appeals) after considering the argument advanced by the parties. - Decided in favour of assessee for statistical purposes. Disallowance u/s 40(a)(ia) - the assessee has not obtained form 15-I and also had not filed Form No. 15-J - whether provisions of section 194C(2) are not applicable to the assessee's case as the assessee took the vehicles on hire charges, therefore, the provisions of section 194C(2) do not attract the case of the assessee? - Held that:- Explanation III to section 194C being applicable to the assessment year under consideration as the Explanation would be applicable prospectively from July 1, 1995, on which date it was introduced. In the present case, admittedly, the assessee made specific plea before the Revenue authorities that the assessee has collected Form 15-I from the truck operators but he could not produce them before the Assessing Officer, however, the same was produced before the Commissioner of Income-tax. The fact of non-production of Form 15-I cannot be taken as default committed by the assessee and as burdening the assessee with heavy taxable income. Since the assessee produced Form 15-I before the Commissioner of Income-tax and it was duly filled in, therefore, due credit is to be given. For this proposition, reliance is placed on the decision in the case of Shree Choudhary Transport Co. v. ITO [2009 (12) TMI 574 - ITAT JODHPUR]. In the case of Valibhai Khanbhai Mankad v. Deputy CIT [2011 (4) TMI 887 - ITAT, AHMEDABAD] wherein held that once the assessee has obtained Form No. 15-I from the sub-contractors, he is not liable to deduct TDS on the payment made to sub-contractors and no disallowance can be made under section 40(a)(ia) ; belated furnishing of Form No. 15J to the Commissioner of Income-tax is an act posterior in time to payments made to sub-contractors and, therefore, this cannot by itself undo the eligibility for exemption created in the second proviso to section 194C(3)(i) by virtue of submission of Form 15-I by sub-contractors. Accordingly, we are of the opinion that due credit be given to the claim of the assessee in terms of Forms 15-I and 15J filed by the assessee. The provisions of section 194C(6) is applicable to the assessee's case and this section has to be considered retrospectively in view of the judgment of CIT v. Alom Extrusions Ltd. [2009 (11) TMI 27 - SUPREME COURT ]. This ground of the appeal is allowed. - Decided in favour of assessee.
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