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2019 (11) TMI 704 - AT - Income TaxAddition on account of suppression of gross turnover - assessee has claimed benefit of TDS made against the said amount - HELD THAT:- We find that CIT(A) after considering various decisions cited in his order has deleted the addition made by Assessing Officer. Before us, the Revenue could not point out any fallacy in the findings of CIT(A). In view of this, we find no reason to interfere with the order of CIT(A) and thus, the ground No.1 of Revenue is dismissed. Addition u/s 43B - auditor had reported being the amount of professional tax deducted from the employees but was not deposited till the date of filing the return of income - HELD THAT:- Appellant was prevented by reasonable cause due to which professional tax deducted from the salary of the employees could not be deposited to the Government Exchequer. It is also an undisputed fact that the appellant had credited the amounts so deducted to a separate account, secondly, undisputedly, debit to Profit &Loss A/cis on account of Salary and not Professional Tax. Section 43B does not include in its ambit expenditure in the nature of “salary‟ which is distinct from bonus and leave encashment, therefore, there is no question of disallowance of expenditure in the nature of salary debited to Profit &Loss A/c. Hence, the disallowance made by the A.O is deleted Disallowance u/s. 40(a)(ia) - HELD THAT:- No doubt, there is a mandatory requirement under Section 201 to deduct tax at source under certain contingencies, but the intention of the legislature is not to treat the Assessee as a person in default subject to the fulfilment of the conditions as stipulated in the first proviso to Section 201(1). The insertion of the second proviso to Section 40(a) (ia) also requires to be viewed in the same manner. This again is a proviso intended to benefit the Assessee. The effect of the legal fiction created thereby is to treat the Assessee as a person not in default of deducting tax at source under certain contingencies. What is common to both the provisos to Section 40 (a) (ia) and Section 210 (1) of the Act is that the as long as the payee/resident (which in this case is ALIP) has filed its return of income disclosing the payment received by and in which the income earned by it is embedded and has also paid tax on such income, the Assessee would not be treated as a person in default. As far as the present case is concerned, it is not disputed by the Revenue that the payee has filed returns and offered the sum received to tax. Addition on account of service tax collected but not deposited - HELD THAT:- We find that no order has been passed on the M.A. whereby the original order of the Tribunal has been recalled by the Tribunal. In such a situation, we are of the view that the original order of the Tribunal for earlier year is a valid order and in that case the Tribunal on identical facts, has decided the issue in favour of assessee. We further find that Hon’bleDelhi High Court in the case of CIT Vs. Noble & Hewitt (India) (P) Ltd. [2007 (9) TMI 238 - DELHI HIGH COURT] has held that when assessee has not debited the amount of service tax to the P & L A/c and has not claimed it as expenditure, the question of disallowance does nor arise. Before us, the Revenue has not placed any contrary binding decision in its support. In view of this, we find no reason to interfere with the order of CIT(A) and thus, the ground No.4 of Revenue is dismissed.
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