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2015 (11) TMI 1879 - ITAT KOLKATADisallowance u/s. 40(a)(ia) - non deduction of tds on commission payment - payment of commission is not fully established by the assessee as meant for business purposes - HELD THAT:- We find that the issue of paid/payable as decided by the ITAT Special Bench, Vishakapatnam [2012 (3) TMI 402 - ITAT VISAKHAPATNAM] in the context of applicability of section 40(a)(ia) has been reversed by the decision of the Hon’ble Jurisdictional Calcutta High Court in the case of CIT Vs. Crescent Export Syndicate [2013 (5) TMI 510 - CALCUTTA HIGH COURT] wherein their Lordships of Calcutta High Court held that the provisions of section 40(a)(ia) could be invoked even in respect of amounts paid before the end of the financial year. We also find that there is an amendment in section 40(a)(ia) by insertion of second proviso w.e.f 1-4-2013, wherein if the payee had considered the subject mentioned receipts including the sum in his return, then the payer ( the asssessee herein) should not be invited with the disallowance of section 40(a)(ia) of the Act. This amendment has been held to be retrospective in operation by recent decision of the Hon’ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] Thus we set aside this issue to the file of the ld.AO to decide the same in the light of the aforesaid judgment( as stated supra). Accordingly, we direct the ld.AO to verify whether the payee(s) has included the subject mentioned receipts in his respective return and paid taxes thereon or not. If that is so, then disallowance u/s. 40(a)(ia) of the Act shall not be made in the hands of the assessee. Accordingly, the ground nos. 1 & 2 raised by the revenue are allowed for statistical purposes. Addition towards carriage outward - AO found that no details were filed by the assessee before him regarding the same and also found that the assessee has not charged any expenditure relating to vehicle except fuel charge - CIT(A) restricted the disallowance to 50% and granted relief - HELD THAT:- We find that in the facts and circumstances of the case, we deem it fit and appropriate, in the interest of justice and fair play, to set aside this issue to the file of the ld.AO for deciding the same afresh, in accordance with law, after providing reasonable opportunity of being heard to the assessee. The assessee is also directed to co-operate with the ld.AO in furnishing necessary evidences in support of his claim. Accordingly, ground no.3 raised by the revenue is allowed for statistical purpose.
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