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2013 (3) TMI 193 - ITAT KOLKATAReassessment - to make disallowance u/s 40(a)(ia) - jurisdiction of reopening u/s. 147 r.w.s. 148 - held that:- AO during the course of original assessment proceedings has noted the transport expenses and given a definite finding regarding allowability and made disallowance of Rs.50,000/- on estimate basis, on that date i.e. on 24.05.2007, the provisions of section 40(a)(ia) of the Act was available for invocation for the AO and AO despite the fact that he made disallowance on estimate basis out of these transportation expenses, without invoking the provisions of section 40(a)(ia) of the Act, he has formed an opinion. Subsequently, the AO to make disallowance in view of the provisions of section 40(a)(ia) of the Act for transportation expenses reopened the assessment by recording reasons that the disallowance is to be made for non-deduction of TDS in view of the provisions of section 40(a)(ia) of the Act. When a regular assessment order was passed u/s. 143(3) of the Act and subject matter of the present appeal was before the AO and AO after applying his mind made part disallowance out of transportation expenses, the AO cannot say that he has not formed an opinion. - Following the decisions Supreme Court and Hon’ble Delhi High Court (FB) in the case of Kelvinator of India Ltd. ([2002 (4) TMI 37 - DELHI HIGH COURT] and [2010 (1) TMI 11 - SUPREME COURT OF INDIA]) decided in favor of assessee.
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