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2018 (7) TMI 943 - ITAT KOLKATATDS u/s 194C - payment to transporters - disallowance made u/s 40(a)(ia) - Held that:- There is no evidence on record to prove as to on which date the assessee herein had submitted the PAN before the competent authority as mandated in section 194C(7) of the Act, which aspect requires factual verification by the ld AO. It is also not clear from the records as to whether the assessee had indeed submitted the PAN of transporters before the competent authority as prescribed in section 194C(7) which also requires factual verification. We are not able to appreciate the various case laws relied upon by the ld AR with regard to section 194C(6) and 194C(7) in as much as in all those cases, the PAN was indeed submitted to the competent authority but belatedly. Hence in the interest of justice and fairplay, we deem it fit and appropriate to remand this issue to the file of the ld AO for verification of this aspect and decide the issue in accordance with law. Addition on account of undisclosed receipt based on difference in receipt as per Form 26AS and profit and loss account - Held that:- It is not borne out from the records before us as to whether the assessee had claimed the full TDS credit in the return and assessment as reflected in Form 26AS. It is well settled that TDS is related to income offered thereon i.e the TDS could be claimed in the year in which the corresponding income is offered to tax by the assessee. No finding in this regard is given by both AO and the ld CITA for better appreciation of the facts. In our considered opinion, this requires factual verification by the ld AO. In these facts and circumstances, we deem it fit and appropriate, in the interest of justice and fairplay, to remand this issue to the file of the ld AO for denovo adjudication in accordance with law. The assessee is also directed to furnish proper reconciliation with Form 26AS in respect of each of the party and also given liberty to furnish further evidences in support of its contentions. Accordingly, the ground no. 2 raised by the revenue is allowed for statistical purposes. Addition addition made towards share capital as unexplained cash credit - Held that:- We find that the three shareholders had duly confirmed the factum of making investments in cash as well as cheques in the assessee company. They had also filed their respective balance sheets and income tax returns to prove their credit worthiness. We find that no finding is given by the authorities below to explain the sources of three shareholders to make investments in cash with facts and figures by clearly proving that as on the date of making the investments in assessee company, whether the three shareholders had sufficient cash balances as per books. This has to be verified from their cash book or from their cash flow statement. AO is accordingly directed to make factual verification of the same in the manner known to law to ascertain the veracity of their creditworthiness. Addition made towards service tax u/s 43B - Held that:- DR was not able to provide any contrary case law before us nor was he able to controvert the claim of the assessee that no deduction per se was claimed by the assessee towards service tax so as to fall outside the ambit of section 43B of the Act. The ld AR argued that service tax portion is kept as a liability in the books and as and when the same is paid , the liability account gets knocked off. Hence it does not enter the profit and loss account at all. We find no infirmity in the order of the ld CITA granting relief to the assessee by placing reliance on various decisions. Accordingly, the Ground No. 4 raised by the revenue is dismissed. Disallowance of interest u/s 36(1)(iii) - Held that:- We find that the ld CITA had deleted the disallowance after recording a factual finding that the assessee was having sufficient own funds to advance interest free funds to related parties. This factual finding remain uncontroverted before us by the revenue. Hence we find no infirmity in the order of the ld CITA applying the decision of Hon’ble Bombay High Court supra to the facts of the instant case.
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