9911796707
TMI Blog2011 (12) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... for valid reopening were not satisfied and it was mere change of opinion. (2) The appellant further submits that the learned Commissioner of Income-tax (Appeals) having noted that reopening was done by the Assessing Officer as he examined the appellant's submission dated May 17, 2007 filed during the course of original assessment proceedings wherein details of TDS were given showing that TDS was deducted only on Rs.89.05 lakhs instead of the entire amount of Rs.1.93 crores, he ought to have held that reopening was done only on the fresh appraisal of facts on record. (II) Disallowance under section 40(a)(ia) of the Act. (1) On the facts and circumstances of the case and as per law the learned Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x at source of Rs.89,719 on the labour payments. As per the details, the total sum credited in the name of 28 parties was Rs.1,93,60,051 and no TDS had been deducted on the amount of Rs.1,04,54,670 under section 194C of the Act which was payable before the end of the year, i.e., March 31, 2005. The Assessing Officer further observed that as per section 40(a)(ia) of the Act, no deduction is allowable in respect of the expenses incurred as professional or technical services, amounts payable to a contractor or sub-contractor, etc., on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or after deduction, tax has not been paid within the time prescribed, etc. Therefore, the Assessing Officer was of the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores which revealed that the TDS had been deducted on an amount of Rs.89.05 lakhs only instead of entire amount of Rs.1.93 crores. Therefore, on the balance amount of Rs.1.04 crores TDS had not been deducted. If the entire amount of Rs.1.93 crores was falling within the provisions of section 194C of the Act, then there is no question of "mere change of opinion" and as per the provisions of the Act the assessee was required to deduct tax at source on the entire amount and if the assessee had failed to do so, the necessary action for reopening of the assessment has to be taken. We find no infirmity in the findings of the learned Commissioner of Income-tax (Appeals) and therefore, in the circumstances and facts of the case, the assessee's g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor if such sum does not exceed Rs.20,000, provided that where the aggregate of the amounts of such sum credited or paid or likely to be credited or paid during the financial year exceeds Rs.50,000, the person responsible for paying such sums referred to in sub-section (1) or as the case may be, sub-section (2) shall be, liable to deduct income-tax under this section. Therefore, Mr. Shah vehemently argued that the amendment was brought into play with effect from October 1, 2004 and the assessee has not violated any provisions on or after October 1, 2004. Before the said amendment the assessee was not liable to deduct tax at source because none of the payments had exceeded Rs.20,000. On the other hand, the learned Departmental repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 and no violation has been for tax deducted at source under section 194C: Therefore, no retrospective effect of the amendment by the Finance (No. 2) Act, 2004 can be given to payments before October 1, 2004 in the present case. Therefore, the Assessing Officer is not justified in holding the deduction of tax at source for the payments made of Rs.1,04,54,670 and further not justified in making the addition of the said amount. He is directed to delete the same. The order of the learned Commissioner of Income-tax (Appeals) is reversed accordingly. Thus ground No. 11(1), (2) and (3) of the assessee are allowed. Ground No. 3 is with regard to Charging of interest under section 234B is mandatory and consequential in nature. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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