2018 (3) TMI 2000 - AT - Income Tax

Disallowance u/s 40(a)(ia) - site rents paid to the Delhi Transport Corporation (DTC) - non-deduction of TDS - scope of second proviso inserted by the Finance Act 2012 - HELD THAT - Tribunal in assessee own case 2007-08 2017 (10) TMI 1631 - ITAT DELHI has held that in terms of proviso to section 40(a)(ia) which has been held to be retrospective in nature by the Hon ble Delhi High Court in Ansal Land Mark Township Pvt. Ltd 2015 (9) TMI 79 - DELHI HIGH COURT no disallowance could be made u/s 40(a)(ia) of the Act. The proviso requires that if the assessee is not deemed to be assessee in default under the 1st proviso to subsection 1 of section 201 then the assessee shall be deemed to have deducted and paid the tax and thus no disallowance would be called for under section 40(a)(ia) of the Act. For complying with the finding of the Tribunal in the case of the assessee itself for assessment year 2007-08 the assessee is required to demonstrate that it fulfilled the conditions provided in above proviso to section 201(1) - we restore the matter to the file of AO for verification of the conditions of proviso to section 201(1) - Appeal of the Revenue is allowed for statistical purposes.

Summary

Issues:
1. Disallowance under section 40(a)(ia) for non-deduction of TDS on payments made to DTC.

Analysis:
The appeal by the Revenue challenged the deletion of disallowance u/s 40(a)(ia) by the Ld. CIT(A) for payments made to DTC due to non-deduction of TDS. The Assessing Officer disallowed Rs. 17,67,16,747/- as tax was not deducted on site rents paid to DTC. However, the Ld. CIT(A) deleted the addition citing precedents and the retrospective nature of the second proviso to section 40(a)(ia) as per the decision of the Hon'ble Delhi High Court. The Tribunal upheld this finding for assessment year 2007-08. The Revenue contended that the assessee should prove that the payee paid tax, referencing relevant provisions and case law.

The Ld. counsel of the assessee argued that since DTC declared the payments as income, no disallowance should apply under section 40(a)(ia) due to the retrospective nature of the second proviso. The Tribunal's earlier decision supported this stance. The Revenue requested verification of whether DTC included the payments in their income for the year under consideration and suggested restoring the matter to the Assessing Officer for further examination and evidence submission.

The Tribunal reviewed the facts and previous decisions, emphasizing the retrospective nature of the proviso to section 40(a)(ia) and the need for the assessee to fulfill conditions under the relevant provisions. Consequently, the matter was remanded to the Assessing Officer for verification of compliance with the proviso to section 201(1) of the Act based on the Tribunal's earlier decision. The assessee was directed to provide necessary documents for verification. The Revenue's grounds were allowed for statistical purposes, and the appeal was allowed accordingly.

In conclusion, the Tribunal's decision highlighted the importance of demonstrating compliance with statutory provisions and previous judicial interpretations regarding TDS disallowance under section 40(a)(ia). The case underscored the significance of providing evidence and meeting prescribed conditions to avoid disallowances, as determined by relevant legal provisions and court decisions.