TMI Blog2012 (7) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts of expenditure which are payable as on 31st March of every year restore the issue to the file of the AO with a direction to verify the accounts and disallow the amount which is payable as on 31st March of the impugned assessment year - in favour of assessee by way of remand. - ITA No. 547 & 548/PN/2010 - - - Dated:- 30-5-2012 - Shri Shailender Kumar Yadav, Shri R.K. Panda, JJ. Assessee by : Sri S.N. Doshi Respondent by : Sri Alok Mishra ORDER Per R.K. Panda, AM The above two appeals filed by the assessee are directed against the order dated 30-11-2009 of the CIT(A)-I, Pune relating to Assessment Years 2005-06 and 2006-07 respectively. Since common grounds have been taken by the assessee in both these a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-opened on the basis of change of opinion and therefore the notice issued u/s.148 is bad in law. It was submitted that the fact of non payment of TDS on the basis of which the assessment was re-opened was reported and explained in the Audit report filed along with the return of income for the year under consideration. It was submitted that the assessee himself had made an addition of Rs. 53,564/- on account of non payment of TDS. Since there was absolutely no suppression of any facts nor it can be said that by not filling of the return of income or by non-disclosure of the true income there has caused an escapement of income, therefore, the re-assessment proceedings are bad in law. Relying on a couple of decisions it was submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the AO within four years from the end of the relevant assessment year. Therefore, in view of the decision of the Hon ble Supreme Court in the case of ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. (supra) the re-assessment proceedings initiated by the AO and upheld by the CIT(A) is justified and legally valid. The various decisions relied on by the learned counsel for the assessee are distinguishable and not applicable to the facts of the present case. Accordingly, first ground raised by the assessee is dismissed. 7. Ground appeal No. 2 by the assessee and the additional ground read as under: 2. On the facts and in the circumstances of the case and without prejudice to the above ground the CIT(A) has erred in sustaining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us works, which were sub-contracted to third persons and therefore, those persons were sub-contractors in respect of such works and accordingly, provisions of sec. 194C(2) are attracted. Based on these observations, the Assessing Officer disallowed the expenditure incurred amounting to Rs. 50,99,998/- in respect of which tax was not deducted/deposited within the stipulated time u/s. 40(a)(ia) of the I.T. Act. 9. Before the CIT(A) the assessee made elaborate submissions challenging the addition made by the AO u/s. 40(a)(ia) of the I.T. Act. However, the CIT(A) also was not convinced with the arguments made by the assessee and upheld the addition made by the AO. Aggrieved with such order of the CIT(A), the assessee is in appeal before us. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be admitted for adjudication. 13. After hearing both the sides, we find the CIT(A) at Para 3.1.1 of his order has mentioned before the Assessing Officer the contention of the appellant was that the provisions of section 40(a)(ia) are attracted only in respect of amounts payable to a resident or to a sub-contractor and not an amount which is already paid . Therefore, the facts being already on record and the additional ground being a legal one, we admit the same for adjudication. We find the Visakhapatnam Special Bench of the Tribunal in the case of Merilyn Shipping and Transport Vs. ACIT (supra) has held that provisions of section 40(a)(ia) are applicable only to amounts of expenditure which are payable as on 31st March of every year and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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