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Showing 181 to 200 of 914 Records
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2020 (4) TMI 734 - ITAT KOLKATA
Addition u/s 68 - Bogus LTCG - HELD THAT:- The contract note of showing sale of shares of M/s. NGFL and the bank statement reflecting the receipt on sale of shares of M/s. NGFL is found placed and the Demat statement reflecting sale on 17th September, 2013 has been furnished at the time of hearing which copy has been given to the ld. DR also. Thus it is noted that the assessee has purchased on-line scrips of M/s. NGFL and sold it also on-line after paying STT.
The assessee has discharged its onus to prove the transactions to be bonafide transactions from which it claimed the LTCG and therefore this amount is an exempt income u/s 10(38) - We note that the AO has not found any fault with the aforesaid documents though he accepted that he has gone through the same. In such a scenario we are bound to follow the decision of this Tribunal in another case of an assessee wherein similar claim of LTCG on sale of M/s. NGFL was considered and granted.
Respectfully following the Tribunal’s order in Madhu Killa [2018 (11) TMI 261 - ITAT KOLKATA] and taking into consideration the documents filed by the assessee to prove the transaction which has taken place through on-line (both purchase and sale) after giving STT need to be allowed and therefore allow the claim and direct deletion of addition - Decided in favour of assessee.
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2020 (4) TMI 733 - NATIONAL COMPANY LAW TRIBUNAL, CHENNAI BENCH
Liquidation of Corporate Debtor - liquidation sought on the ground the Resolution Applicant failed to perform the Resolution Plan as stated in the Resolution Plan and for appointment of Mr. Chandramouli Ramasubramaniam as Liquidator of the Corporate Debtor - HELD THAT:- Looking at the attendance sheet file, it appears that these Respondents (Promoter-Directors) appeared on and off but have not come out with any concrete proposal or any promise to comply with the Resolution Plan approved by this Bench. For having already two months gone by after filing this application, we are constrained to pass orders to liquidate the Corporate Debtor under section 33(3) of the Code by directing the erstwhile Resolution Professional (RP) namely, Mr. Chandramouli Ramasubramaniam looking at the written consent given by him, to act as the Liquidator of the Corporate Debtor for the purpose of liquidation of this Corporate Debtor.
The Liquidation of Corporate Debtor is ordered in the manner as laid down in the Chapter by issuing a public notice stating that the Corporate Debtor is in liquidation with a direction to the liquidator to send this order to ROC with which this company has been registered.
The Registry is hereby directed to immediately communicate this order to the Liquidator, the Corporate Debtor, the IBBI and Concerned ROC by way of e-mail - application allowed.
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2020 (4) TMI 732 - PATNA HIGH COURT
Money Laundering - investment of proceeds of crime - Acquiring of Liquor shops - allegation that the investment represent the process of integration of the proceeds of the crime with the main stream economy - Section 5(1) of the PMLA - It has been submitted on behalf of appellant that there is no material whatsoever on the basis of which the competent authority/adjudicating authority could have reasons to believe that movable and immovable properties purchased by the appellants were derived or obtained from proceeds of crime generated from criminal activity relating to schedule offence - right to appeal.
HELD THAT:- The predicate offence and the offence of money-laundering are two distinct and separate set of offences. The offence of money laundering is independent of schedule offences. As per section 24 of PML Act, the burden of proof that proceeds are legitimate is on the accused - It is the date of laundering which would be relevant and not the date of schedule offence. The laundering as used in Section 3 comprises of involvement in any process or activity by which the illicit money is being projected as untainted.
Date of occurrence of scheduled offence is not relevant, rather, date on which laundering of money is committed is the relevant date. Even if money was acquired prior to amending Act but accused has committed offence under Section 3 of act subsequent to coming of the Act he can be proceeded for offence of money laundering i.e. his involvement in projecting illicit money to be untainted.
Attachment proceeding and criminal proceedings are two parallel and independent proceedings and are not dependent upon each other. Properties which are found liable for attachment after final adjudication can be confiscated after conviction of accused under Section ¾ of PML Act - Against the order passed by the appellate tribunal the aggrieved party under Section-42 of the PMLA has further right of appeal before the High Court, as such the order passed by the appellate tribunal by which instead of deciding the appeal and pass a final order, keeping the appeal pending till disposal of criminal prosecution lodged for offences punishable under Sections 3/4 of the PMLA pending before the PMLA Court, Patna is not sustainable and liable to be set aside.
The appellate tribunal is directed to decide the pending appeal of appellant within three months from the date of receipt/production of a copy of the order passed by this Court - Appeal disposed off.
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2020 (4) TMI 731 - CESTAT CHENNAI
Nature of activity - deemed sale or service? - service of providing leasing of digital cinema equipments to theatres - supply of tangible goods’ service or not - HELD THAT:- Identical issue decided in the case of M/S. QUBE CINEMA TECHNOLOGIES PVT. LTD. VERSUS GST & CCE, CHENNAI NORTH [2018 (5) TMI 887 - CESTAT CHENNAI] where it was held that activity does not fall within the definition of service under the Finance Act, 1994 as amended in 2012.
The demand cannot sustain - Appeal allowed - decided in favor of appellant.
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2020 (4) TMI 730 - SUPREME COURT
Public Auction by Banks - recovery of outstanding dues - Right of e-auction purchaser - To get original documents - no existence of valid mortgage in respect of the secured assets - approbation and reprobation of commitment on the part of guarantor - thrust of the argument of the appellant is that it having purchased the property in a public auction conducted by the Bank and upon complying with necessary formalities and further, having received the sale certificate in that regard, in law, was entitled to get the original title documents in respect of the stated properties - HELD THAT:- The guarantor cannot be allowed to approbate and reprobate from the commitment made in successive proceedings before the DRT and the High Court.
Suffice it to observe that the guarantor has successively raised the issue regarding the validity of subject mortgage in different proceedings unsuccessfully. The concerned forum/Court unambiguously rejected the same. More importantly, the guarantor through its Director(s) having offered to pay the entire outstanding dues and also admitting on affidavit the factum of existence of subject mortgage in favour of the Bank, the question of showing any indulgence to the guarantor (by the High Court) did not arise. The guarantor cannot be allowed to raise the same plea repeatedly on every occasion/in every proceeding. Notably, the auction sale stands concluded and followed by issuance of sale certificate in favour of the appellant. Resultantly, the Bank is under legal obligation to handover the title deeds or original documents being Exhibits A110 to A114 to the appellant for completion of the formalities of sale - the High Court should have been loath in entertaining the writ petition filed by the guarantor, raising the same plea ad nauseam. The reason weighed with the High Court, in our opinion, is flimsy and untenable. That cannot be countenanced at the instance of the guarantor. The inevitable effect of entertaining the stated plea of guarantor will entail encouraging vexatious plea and procrastination of the concluded auction sale by delaying handing over of title documents to the highest bidder, in whose favour sale certificate has already been issued.
Whether despite the decree of a Court of competent jurisdiction in favour of respondent No. 11 (A.R. Sridharan) concerning land bearing Paimash No. 722/4 admeasuring 1.80 acres, can the documents pertaining to that land be still made over to the appellant/auction purchaser, merely because sale certificate has been issued by the Bank in that regard? - HELD THAT:- The sale certificate, as issued by the Bank, does make reference to land bearing survey No. 282, which inter alia, consists of old Paimash No. 722/4. Therefore, to the extent of land referred to in the decree dated 16.2.1990 passed by the Court of District Munsiff, Chengalpattu in O.S. No. 186/1976 in favour of the respondent No. 11 (A.R. Sridharan), despite the issuance of sale certificate, the title document in respect of old Paimash No. 722/4 ought not to be released until the final decision in O.A. No. 11/2008 - The fact that other proceedings, including about the title in respect of land admeasuring 1.80 acres bearing Paimash No. 722/4 are pending between the parties, cannot be the basis to overlook the claim of the respondent No. 11 (A.R. Sridharan) until a Court of competent jurisdiction declares that the respondent No. 11 (A.R. Sridharan) had no subsisting right, title or interest in that property.
Admittedly, the appellant is party to the O.A., as well as, in the application filed by the Bank for return of documents. The Bank has supported the stand taken by the appellant. We find no infirmity in the appellant having approached this Court instead of the Bank, the applicant before the DRT. Even the appellant could have itself approached the DRT for this very relief. Taking any view of the matter, the objection under consideration is of no avail to the contesting respondents.
Although we are inclined to reverse the impugned decision of the High Court, however, for the nature of controversy brought before us, it may be appropriate to modify the operative order of the DRAT to the effect that the application filed by the Bank being I.A. No. 995/2017 in O.A. No. 11/2008 is partly allowed by ordering return of the original documents, except in respect of the land bearing Paimash No. 722/4 admeasuring 1.80 acres being subject matter of decree in O.S. No. 186/1976. This arrangement will meet the ends of justice in the facts of the present case.
Appeal allowed in part.
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2020 (4) TMI 729 - GAUHATI HIGH COURT
Method of calculation of tax liability - execution of works contract - whether tax liability should be determined as per the GST regime @ 12% or under the VAT regime @5%? - HELD THAT:- Circular No.3/2017-GST dated 24.08.2017 clearly defines the mechanism for payment of GST and deduction of tax at source (TDS) in respect of works contractors and suppliers - The aforesaid Circular dated 24.08.2017 has provided the detailed methodology for payment of tax by way of TDS in respect of works executed during and post VAT period.
This Court is of the view that under such circumstances, the Commissioner of Taxes, Assam will decide the exact liability of the petitioner to pay tax by referring to the said Circular No.3/2017-GST dated 24.08.2017 so that the petitioner can pay tax as liable to be paid by him either under the rate fixed under the VAT regime or under the GST regime, as the case may be - the matter is remanded to the Commissioner of Taxes, Assam for determination of tax liability of the petitioner which may be decided on the basis of the Circular dated 24.08.2017 and the petitioner will accordingly deposit the determined tax amount.
Petition allowed by way of remand.
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2020 (4) TMI 728 - DELHI HIGH COURT
Registration of members of the petitioner society - CGST Act, 2017 - the respondent no. 2 has refused to purchase the books from the members of the petitioner’s society only on the ground that they are not able to supply the GST registration number. - respondents shall seek instructions and if required, file a counter affidavit within a period of two weeks - HELD THAT:- List on 27th March, 2020.
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2020 (4) TMI 727 - PUNJAB AND HARYANA HIGH COURT
Filing of Form 'TRAN-1' by the extended date - The decision was passed in view of judgement of ADFERT TECHNOLOGIES PVT. LTD. VERSUS UNION OF INDIA AND ORS. [2019 (11) TMI 282 - PUNJAB AND HARYANA HIGH COURT] where the respondents were directed to permit the petitioner to file Form 'TRAN-1' by the extended date - HELD THAT:- Issue decided in the case of M/S. AJAY HARDWARE INDUSTRIES PVT. LTD., VERSUS UNION OF INDIA AND OTHERS [2019 (12) TMI 414 - PUNJAB AND HARYANA HIGH COURT] where it was held that Merely, because the implementation has been stayed in Review by the Hon'ble Gujarat High Court, in our considered opinion, is no ground to review our judgment, however, in our view, the appropriate remedy for the Revenue would be to approach the Hon'ble Supreme Court by filing an appeal. - application dismissed.
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2020 (4) TMI 726 - DELHI HIGH COURT
Penalty u/s 271(C) - proceeding initiated against u/s 201 (1) (1A) - no-reply to show cause notice - request for a period of three weeks to respond to the same on account of the lockdown declared by the Government of India across India so as to effectively deal with the Covid-19 pandemic - HELD THAT:- Immediately after the lockdown is withdrawn by the Government, a period of two weeks reckoned therefrom is granted to the petitioner to reply to the Notices to the show cause issued by the respondent. Immediately after receiving replies to the Notices to show cause, the respondent shall be at liberty to take further steps in both the matters, in accordance with law.
Both the petitions are disposed of alongwith the pending applications in terms of the aforesaid statement made by the learned Senior Standing Counsel of the respondent/Department and the order passed above.
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2020 (4) TMI 725 - PUNJAB & HARYANA HIGH COURT
Exemption u/s 54B denied - appellant and his three brothers had sold jointly owned land and for his 1/4th share he purchased land in the name of his wife and claimed exemption under Section 54B - HELD THAT:- It is an undisputed fact that after selling the agricultural land the appellant purchased a land worth his share, in the name of his wife. The issue is directly covered by the decision of this Court in Dinesh Verma's case [2015 (7) TMI 486 - PUNJAB & HARYANA HIGH COURT] wherein declined the exemption Section 54B as it requires the assessee to purchase the property from out of the sale consideration of the capital asset. It does not entitle the assessee to the benefit conferred therein if the subsequent property is purchased by a person other than the assessee including a close relative even such as his wife or children. If the legislature intended conferring such a benefit, it would have provided for the same expressly.
The reliance of Gurnam Singh's case [2008 (4) TMI 28 - PUNJAB AND HARYANA HIGH COURT]will not enhance the case of the appellant as the property in that case was purchased in the joint name of the assessee and his only son, which is not the case in the present case. - Decided against assessee.
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2020 (4) TMI 724 - PUNJAB AND HARYANA HIGH COURT
Interest u/s 244A OR 132B(4) - not refunding the seized amount - demand against the petitioner justifying retention of the seized amount, yet no interest was paid - HELD THAT:- Clause (b) of Section 244A of the Act talks of all other cases than mentioned in clause (a) and (aa) for giving interest from the date of payment to the date on which the refund is granted. The refund of amount became due to the petitioner under the Act after finalisation of the assessment i.e. 21.1.2014 and the same was refunded on 4.7.2017, in such circumstances, the case is covered under clause (b) of Section 244A of the Act.
Sections 132B and 244A of the Act are independent provisions and are not over-lapping. Rather, Section 132B(4) of the Act deals with interest for the period from seizing of the amount till finalisation of the assessment and Section 244A of the Act operates for the period after the refund has become due under the Act.
Madhya Pradesh High Court in Manohar Lal's case [2001 (2) TMI 99 - MADHYA PRADESH HIGH COURT ]took a view that Section 132B of the Act is a self contained code, the assets seized have to be dealt with under Section 132(6) of the Act and payment of interest is to be made under Section 132B(4) of the Act and Section 244 of the Act had no application. With utmost respect, we are not in agreement with the view taken by Madhya Pradesh High Court for the reasons mentioned above.
WP allowed. The petitioner shall be entitled to interest under Section 244A of the Act for the period from 22.1.2014 till the date of payment.
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2020 (4) TMI 723 - KARNATAKA HIGH COURT
Addition u/s 37(1) - non-competition fee - revenue or capital expenditure - HELD THAT:- Tribunal considering the decision in the case of M/s McDowell & Co. Ltd. [2002 (2) TMI 302 - ITAT BANGALORE] held that the entire payment by the assessee is allowable as revenue expenditure and not merely 1/4th of payment towards non-competition fee as it does not bring in any capital asset and held that the payment is allowable under Section 37(1) of the Income Tax Act and directed the Assessing Officer to give appropriate relief after re-computing the income as per the direction of this Tribunal and modified the order of the Tribunal to the said extent. We find no error in the order passed by the Tribunal. It has followed its earlier order in the case of M/s McDowell & Co. Ltd correctly - Substantial question of law is answered against the revenue.
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2020 (4) TMI 722 - MADRAS HIGH COURT
Allowance under explanation to section 35(1)(ii) - whether the donee sent back the donation to the donor ? - Tribunal justified in remitting the matter back to the file of the assessing officer or not? - HELD THAT:- Having given a finding that the appellant is entitled to exemption, the Tribunal went further and based on sworn statement of founder director of M/s.Herbicure Healthcare Bio-herbal Research Foundation that the organization returned the donation to the assessee, thought it fit to remand the matter to ascertain the means of the assessee and the actual amount paid by the assessee and decide the issue afresh after affording sufficient opportunities to the assessee.
This Court does not find anything wrong with that. The approach of the Tribunal is very balanced. Initially, it found that the disallowance made by the lower authorities is unsustainable and allowance should be given, however, based on the statement made by the donee, the Tribunal rightly remanded the matter to the assessing officer.
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2020 (4) TMI 721 - ITAT COCHIN
Deduction u/s 80P - assessee is a co-operative society registered under the Kerala Co-operative Societies Act, 1969 - CIT(A) rejected the objections raised by the assessee and passed orders u/s 154 disallowing the claim of the assessee u/s 80P(2) - HELD THAT:- CIT(A) had initially allowed the appeals of the assessee and granted deduction u/s 80P(2) of the I.T.Act. Subsequently, the CIT(A) passed orders u/s 154 wherein the claim of deduction u/s 80P was denied, by relying on the judgment of The Mavilayi Service Co-operative Bank Ltd. v. CIT [2019 (3) TMI 1580 - KERALA HIGH COURT] The CIT(A) ought not to have rejected the claim of deduction u/s 80P(2) of the I.T.Act without examining the activities of the assessee-society.
The Full Bench of the Hon’ble jurisdictional High Court in the case of The Mavilayi Service Co-operative Bank Ltd. V. CIT (supra) had held that the A.O. has to conduct an inquiry into the factual situation as to the activities of the assessee society to determine the eligibility of deduction u/s 80P - In view of the dictum laid we restore the issue of deduction u/s 80P(2) to the files of the AO to examine the activities of the assessee and determine whether the activities are in compliance with the activities of a co-operative society functioning under the Kerala Co-operative Societies Act, 1969 and accordingly grant deduction u/s 80P(2) - Appeal filed by the assessee allowed for statistical purposes.
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2020 (4) TMI 720 - ITAT BANGALORE
Scope of rectification under Section 154 - Deduction claimed u/s. 80IAB - Claim disallowed by a rectification order passed by the AO u/s. 154 - HELD THAT:- Eligibility of deduction u/s. 80IAB is governed by the true character of lease rental income derived. The CBDT circular albeit in the context of S. 80IA(4-(iii) has expressed its concern on litigation towards taxability of lease income under the appropriate head and granted relief to the taxpayer for eligibility of deduction. The issue thus cannot be said to be totally free of any debate. On the contrary, the debate, if any, leans in favour of the assessee. Thus, the rectification carried out u/s. 154 of the Act, in our view, is beyond the mandate of law and requires to be struck down.
Deduction u/s 80IAB - HELD THAT:- Find considerable merit in the plea of assessee for allowability of deduction claimed from income derived by way of letting out of properties. The assessee is entitled to benefit of deduction notwithstanding wrong classification of income under the head ‘income from house property’. The AO was under duty to examine the true nature and character of income while framing assessment regardless of error committed by the assessee in this regard. The claim of assessee u/s 80IAB thus deserves to be allowed on first principles.
Wrong classification of income under the head ‘income from house property’, has resulted in wrong claim of deduction under S. 23/24 while computing income under the head ‘house property’ and requires correction. Similarly, the normal business expenses incurred were also not claimed from lease rentals in view of restrictions placed under the head ‘income from house property’. The correct computation of business income on realignment of head of income would thus be required to correctly determine the quantum of income eligible for deduction under S. 80IAB - restore the issue back to the file of Assessing Officer for re-determination of taxable income in accordance with law, having regard to the true nature of income derived by the assessee. The AO shall grant deduction u/s. 80IAB.
Allowability of interest expenditure u/s. 36(1)(iii) - HELD THAT:- Issue towards claim of interest expenses is also required to be examined de novo by the AO in the light of overhaul and realignment of nature of SEZ income under the head business income. Accordingly, the issue of allowability of interest is restored to the file of AO for redetermination in accordance with the law in the light of provisions applicable in relation to income chargeable under the ‘business income’ and in the light of observation noted above.
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2020 (4) TMI 719 - ITAT CHENNAI
Penalty u/s 271B - assessee has not filed the tax audit report u/s 44AB - reasonable cause for the late filing of the tax audit report or not? - HELD THAT:- Once the assessee has paid all the taxes due on the returned income including the demand raised in the assessment order before 30.09.2010, the assessee is mandated to file the return of income within the prescribed time limit. Since the assessee failed files the return of income within the prescribed time limit, we are of the considered opinion that the penalty levied under section 271F of the Act was rightly confirmed by the ld. CIT(A). We find no infirmity in the order passed by the ld. CIT(A) and thus, the ground raised by the assessee stands dismissed.
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2020 (4) TMI 718 - ITAT CHENNAI
Addition towards cost of purchase of film rights u/s 40A(2) - HELD THAT:- Assessee, the mother of assessee and sister of the assessee acquired the impugned property during 1992.
The mother of the assessee and sister of the assessee settled their portion of the land by a settlement deed dated 17.06.2011. Assessee has sold and claimed capital gain, in accordance with the case law relied on in CIT vs Manujal J Shah [2011 (10) TMI 406 - BOMBAY HIGH COURT] the period of holding is to be reckoned from the year 1992-93 for the purpose of computing cost of indexation and therefore, we do not find any reason to interfere with the order of the Ld. CIT(A).
Claim of interest capitalisation towards cost of acquisition - For the purpose of indexation the assessee has submitted before the CIT(A) that the land was purchased during 1999-2000 relating to assessment year 2000-01. The interest paid was in connection with the acquisition which happened almost 15 to 20 years back. The relevant papers were not able to be produced since the details of capitalisation happened about 20 years back.
Assessee has been subject to tax audit in the relevant assessment year and the books of account are duly audited and certified by the CA, the same was duly submitted by the AO as an alternative evidence to substantiate the interest capitalisation which the AO has not considered and made the disallowance.
CIT(A) held that he is convinced with the AO’s action on capitalisation interest on capitalising the interest is correct, as per law and directed the AO to include the interest on housing loan borrowed as part of the cost of acquisition. Since, the Revenue has not disputed the findings recorded by the CIT(A) with relevant material, we do not find any reason to interfere with the decision of the CIT(A) on this issue.
Disallowance on assessee’s claim on loss of distribution of movie relating to the movie “Badrinath” - CIT(A), the assessee has explained very clearly the nature and the scope of the transaction and made out the case that the amount paid to the company was at arm length which was prevalent as per normal practice in the assessee’s business. The assessee has also made out that there was no unreasonableness in the transaction and the transaction was fully accounted and all the relevant particulars were filed before the AO. As submitted that the AO has not made out the case based on evidence but came to a conclusion that the said transaction was a sham transaction. Considering the material and the plea etc., CIT(A) held that the AO has not made out the case based on evidence. The AO has not determined the fair market value with comparable cases etc.
Therefore, he deleted the additions. Revenue is not able to dislodge the findings recorded by the Ld. CIT(A) with relevant material. In the facts and circumstances, we do not find any reason to interfere with the order of the Ld. CIT(A) and hence the corresponding grounds of the Revenue are dismissed.
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2020 (4) TMI 717 - ITAT CHENNAI
Disallowance on premium paid on redemption of foreign currency convertible bonds - Revenue expenditure or capital loss - HELD THAT:- Expenditure incurred by the assessee by way of premium paid on redemption of FCCB would be of revenue expenditure only and hence the assessee would be entitled to claim the same in accordance with the law. It is also clear from the above that the AO has not examined this issue properly and he merely disallowed the sum stating that the assessee’s claim is of capital nature. The description given as regards to various entries and as explained by the ld AR, supra, and its corresponding implications were neither examined by the AO nor by the ld CIT(A).
Remit this issue back to the A O for a fresh examination and allow the assessee’s claim in accordance with law. The assessee shall place all materials in support of its contention and shall comply with the requirements of the AO in accordance with law. AO is free to conduct appropriate enquiry as deemed fit. - Revenue’s appeal is treated as partly allowed for statistical purposes.
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2020 (4) TMI 716 - ITAT AHMEDABAD
Exemption u/s 11 - registration u/s 12AA denied - main object of the trust is to give benefit to the family member of the deceased members of the Rotary Club and same is not giving benefit to public at large and giving benefit to group of deceased members - HELD THAT:- Trust has been given a certificate from the office of the Charity Commissioner after going through the Memorandum of Association and seeing the activities of the trust and trust is meant for deceased member of Rotary Club Family Members. As Rotary Club is carrying out charitable activities for the public at large as organizing the blood donation camp giving books to poor students and doing charity for orphanage etc.
there are trusts meant for benefit of war widows those widows are also getting Government pension and in some of the cases they have been allotted petrol pump, gas agencies and houses etc. has been given to them at concessional rates by the Govt. but apart from that there are trusts those are getting donation and doing lots of activities for betterment of the war widows and their families.
If there trust registration is legal and valid why Rotary Club Social Security fund cannot held to be legal and valid. In our considered opinion, rejecting the application for registration of the Trust is amounting to miscarriage of justice. DIT(E) ought to have allowed the registration application filed to the assessee - Direct the department to grant registration u/s. 12AA to the assessee. - Decided in favour of assessee.
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2020 (4) TMI 715 - ITAT AHMEDABAD
Disallowance of depreciation claimed u/s. 32 - assessee could not produce any proof with regard to put to use the said vehicles on 31.03.2009 - HELD THAT:- Since vehicle was put to use on 31.03.2009 and in support of its contention, assessee has submitted copies of ledger before the lower authorities and respectfully following the aforesaid judgments, we allow claim of the assessee and this ground of the assessee is allowed and we direct assessing officer to allow the claim of depreciation
Short deduction of tds - disallowance of expenses u/s. 40(a)(ia) - TDS u/s. 194C or u/s 194I - disallowance of proportionate expenditure - HELD THAT:- As decided in M/S SK. TEKRIWAL [2012 (12) TMI 873 - CALCUTTA HIGH COURT] provisions of section 40(a)(ia) has two limbs one is where, inter alia, assessee has to deduct tax and the second where after deducting tax, inter alia, the assessee has to pay into Government Account. There is nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction. With regard to the shortfall, it cannot be assumed that there is a default as the deduction is not as required by or under the Act, but the facts is that this expression, ‘on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction has not been paid on or before the due date specified in sub-section 3(1) of section 139.
Section 40(a)(ia) refers only to the duty to deduct tax and pay to government account. If there is any shortfall due to any difference of opinion as to the taxability of any item or the nature of payments falling under various TDS provisions, the assessee can be declared to be an assessee in default u/s. 201 and no disallowance can be made by invoking the provisions of section 40(a)(ia) - AO either could accept the claim of the assessee or could disallow the claim of the assessee but he could not have disallowed the proportionate expenditure - Decided in favour of assessee.
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