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2016 (1) TMI 567 - AT - Income TaxTDS u/s 194C - Disallowance u/s 40(a)(ia) - non deduction of tds on payment to sub-contractors as the amount of payment exceeded ₹ 20,000/- on each - whether the provision of section 40(a)(ia) is attracted only in respect of payments which is actually payable as at the end of the year and not which is paid during the year? - CIT(A) rejected additional evidence presented - Held that:- As for assessee argument that the liability u/s.40(a)(ia) is restricted to the amount outstanding at the end of the year is concerned, the Pune Benches of the Tribunal in the case of Vinay Ashwinikumar Joneja Vs. ITO [2013 (11) TMI 1243 - ITAT PUNE ] following the decision of Hon’ble Calcutta High Court and Hon’ble Gujarat High Court are consistently taking the view that provisions of section 40(a)(ia) are attracted to the whole amount incurred as expenditure during the year on which no tax has been deducted. The same is not restricted to only the amount payable at the end of the year. Therefore, the first limb of the argument by the Ld. Counsel for the assessee is rejected. So far as the second limb of the argument of the Ld. Counsel for the assessee that the sub contractors have furnished Form 15G and therefore there is no liability to deduct tax is concerned, we find the Ld.CIT(A) did not accept the additional evidences filed before him on the ground that assessee had not explained the reasons for non furnishing of the same before the AO. CIT(A) should not have rejected the additional evidences filed before him. Under these circumstances, we restore this issue to the file of the AO with a direction to examine the 15G forms submitted by the concerned sub-contractors and decide the issue as per fact and law after giving due opportunity of being heard to the assessee So far as the observation of Ld.CIT(A) that the assessee is not entitled to prefer an appeal before him since the assessee has admitted before the AO for such addition u/s.40(a)(ia) is concerned, we find the Hon’ble Bombay High Court in the case of Nirmala L. Mehta (2004 (4) TMI 43 - BOMBAY High Court) following the decision of the Hon’ble Supreme Court in the case of The Amalgamated Coalfield Ltd. Vs. The Janapada Sabha, Chhindwara [1962 (9) TMI 60 - SUPREME COURT OF INDIA ] has held that acquiescence to an illegal tax for a long time is not a ground for denying the party the relief that he is entitled to. Thus we restore this issue to the file of the AO with a direction to decide the issue afresh in the light of the 15G forms submitted by the sub-contractors to whom the assessee has made payments exceeding ₹ 20,000/- without deduction of tax. The AO shall decide the issue afresh - Decided partly in favour of assessee for statistical purposes.
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