TMI Blog2020 (2) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ecipient of the income and as such it cannot be held that the assessee has not paid the amount of tax deductible at source on or before the due date. So it cannot be held that the aforesaid amount of TDS has not been paid by the assessee while following the cash system of accounting. Hon ble Delhi High Court in case of Commissioner of Income Tax XIII Vs. Naresh Kumar [ 2013 (9) TMI 275 - DELHI HIGH COURT] and Commissioner of Income Tax Vs. Rajinder Kumar [ 2013 (7) TMI 454 - DELHI HIGH COURT] held that if the statutory liability of depositing the TDS has been fulfilled before the due date of filing of the return u/s 139(1) of the Act, the same are allowable expenses in the year to which it relates. This is also mandate of Section 43B o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ephone expenses of ₹ 1,93,712/- which is merely 0.32% of the gross receipts, we are of the considered view that Ld. CIT(A) in A.Y. 2011-12 has rightly restricted the personal nature of telephone expenses of the assessee to 8% of the total claim. So the Revenue is required to follow the rule of consistency and as such personal nature of telephone expenses of the assessee is restricted to 8% of the total claim. So Ground No. 5 is partly determined in favour of the assessee. - ITA No. 3194/Del./2017 - - - Dated:- 7-2-2020 - Shri N.K. Billaiya, Accountant Member And Shri Kuldip Singh, Judicial Member For the Assessee : Sh. Vikas Mandan, Adv. For the Revenue : Sh. S.N.Meena, Sr. DR ORDER PER KULDIP SINGH, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , duly authorized as per the supplement deed of Partnership dated 27th March 2013 of the Appellant. Therefore, the said disallowance of Partner s Salary under section 40(b) of the Income Tax Act, 1961, is arbitrary, unjust and unwarranted, keeping in view that under section 40(b) only condition for disallowance of partners remuneration is that if it is not duly authorized by the deed of partnership. Hence the addition made is illegal, arbitrary, unjustified and against the facts and bad in law, may kindly be deleted. 5. That the Ld. CIT (A) has erred in confirming the addition of the expense in the sum of ₹ 26,137/-, out of ₹ 1,93,712/- which were incurred in respect of the telephone expenses, These expense were incurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carried the matter before Ld. CIT(A) by way of filing the appeal who has confirmed aforesaid additions by partly allowing the appeal. Feeling aggrieved the Assessee has come up before the Tribunal by way of filing the present appeal. 4. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. GROUND NO. 1 AND 2 5. Ground no. 1 and 2 are general in nature, hence no need specific finding. GROUND NO. 3 6. Ld. AR for the assessee challenging the impugned order passed by Ld. CIT(A) contended that the tax deducted at source by the assessee u/s 194J f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of tax deductible at source on or before the due date. So it cannot be held that the aforesaid amount of TDS has not been paid by the assessee while following the cash system of accounting. 6.2 Hon ble Delhi High Court in case of Commissioner of Income Tax XIII Vs. Naresh Kumar in Income Tax Appeal No. 24/2013 decided on 6th September, 2013 and Judgment of Delhi High Court in the matter of Commissioner of Income Tax Vs. Rajinder Kumar in Income Tax Appeal No. 65/2013 decided on 1st July, 2013 held that if the statutory liability of depositing the TDS has been fulfilled before the due date of filing of the return u/s 139(1) of the Act, the same are allowable expenses in the year to which it relates. This is also mandate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantum specified in Clause 8.1 may be drawn in such instalments as may be decided by the Partners from time to time. 7.2 Then perusal of the supplementary partnership deed dated 27.03.2013 available at page 12 to 14 of the paper book shows that partner s salary has been enhanced with effect from 1st April, 2012 to ₹ 57,00,000/-. Accordingly assessee has claimed partner s salary with effect from 1st April and placed on file the copy of ledger available at page 61 of the paper book. When it is undisputed fact that out of two partner namely Mr. R.J.Gagrat and Mr. Ujjwal A. Rana only one partner is active partner and is deriving salary and no salary is being drawn by Mr. R.J. Gagrat, they have mutually agreed to decide the salary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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