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2022 (4) TMI 387 - AT - Income TaxTDS u/s 195 - disallowance u/s 40(a)(ia) - claim of the assessee in respect of foreign commission expenses - Assessee submitted chart showing details of commission on sale paid to various foreign nationals and domestic persons and also Form No. 15CB issued by the Chartered Accountants on the nature of remittance and rate of TDS as per section 195(6) of the Act relating to various parties - HELD THAT:- As new documents were filed before the Tribunal for the first time, the AO has no occasion to examine copies of these documents while finalizing the assessment, therefore in the interest of justice, we restore this issue to the file of the Assessing Officer for reconsideration of the commission payment. The assessee is directed to furnish all evidences to support its case before the Assessing Officer, and thereafter, the AO shall pass an order after providing reasonable opportunity to the assessee. Thus, this ground of appeal is allowed for statistical purpose. Disallowance under section 14A read with Rule 8D - whether disallowance under Rule 8D(2)(iii) in respect of administrative expenses to the extent of 0.5% of average investment was correct or not? - HELD THAT:- It is not discernible from the order of the Ld. CIT(A) how he arrived at the figure of ₹ 42,00,867/- being the average investment. The disallowance under section 14A read with rule 8D is to be in relation to the income which does not form part of the total income and this can be done only by taking into consideration the investment which has given rise to this income which does not form part of the total income. Under the circumstances, we are of the considered view that the computation of the disallowances under section 14A read with rule 8D(2)(iii), which is issue in the assessee's appeal, is to be restored in the file of the AO for re-computation for identifying average investments which actually yielded dividend income to the assessee and on that basis recompute disallowance u/s. 14A of the Act read with Rule 8D(2)(iii) of the IT Rule. Disallowance under section 14A is to be added to the income computed as per Section 115JB for MAT purpose - This issue is covered in favour of the assessee by the decision of Special Bench in the case of ACIT Vs. Vireet Investment P. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] wherein Special Bench held that computation under MAT provisions was to be made without resorting to the computation as contemplated under section 14A read with Rule 8D. Respectfully following the same, we delete disallowance for the purpose of calculation of book profits u/s. 115JB. Addition on account of mismatch of TDS as per Form 26AS - HELD THAT:- This fact that the assessee has given advances to TESCO Projects P. Ltd., and the party was not paying either interest or repaying the principal amount, and the assessee has filed a civil suit against the party for recovery of the principal amount and interest. Even some cheques issued by the said borrower have been returned by the bank unpaid. These facts are not disputed by the authorities below. In this connection, the assessee has also filed a paper book which contained copies of legal notice issued to the said TESCO Projects Ltd., and copy of cheques returned by the bank. We are of the view that the contentions of the assessee cannot be simply brushed aside for the very reasons that the evidence produced before us clearly demonstrated that the borrower has not honoured its commitment either to pay the interest or principal amount, as the cheque issued by the party was returned by the banker as unpaid. The assessee has filed civil suit against the party for recovery of the same. As per the assessee, though the borrower has deducted TDS but corresponding interest payment was not received by the assessee. This requires further verification. Therefore, in the fitness of things, we restore this issue back to the file of the AO for re-examination of the issue.
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