TMI Blog2012 (11) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the rest part as decided in Merilyn Shipping & Transports Versus ACIT, Range-1, Visakhapatnam [2012 (4) TMI 290 - ITAT VISAKHAPATNAM] section 40(a)(ia) is applicable only to expenditure which is payable as on 31st March of every year and cannot be invoked to disallow the amounts which are already been paid during the previous year, without deducting tax at source – Decided in favor of assessee - confirm the disallowance of only Rs.2,30,59,781/- being the amount payable by the assessee to the creditors for labour work as on 31.03.2005 - partly in favour of assessee. - I.T.A. No. 3549 & 3550/ Ahd/2008 - - - Dated:- 12-10-2012 - SHRI MUKUL KUMAR SHRAWAT, AND SHRI A. K. GARODIA, JJ. Appellant by: Shri Mandal K Patel, AR Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order. He further submitted that from Sl. No.1-14, Ld. CIT(A) has decided the issue in favour of the assessee and hence, there is no dispute in the present appeal towards this amount. Regarding Sl. No.15-22, it was submitted that the disallowance for these items were made by the A.O. of Rs.32,18,58,199/- but such disallowance is not justified in view of the recent decision of Hon ble Calcutta High Court rendered in the case of Virgin Creations (Appeal No.302 of 2007)[G.A.No.3200/2011] because it was held by Hon ble Calcutta High Court in that case that the amendment in Section 40(a)(ia) is retrospective and hence, if the TDS was deposited by the assessee in the Government account before the due date of filing of return of income, disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat now, for the part amount of Rs.32,18,58,199/- as per Sl. No.15-22 on page 15 of the order of Ld. CIT(A), TDS was deposited by the assessee in the Government account latest by 24.08.2005 which is before the due date for filing the return of income and as per the judgment of Hon ble Calcutta high Court rendered in the case of Virgin Creations (supra) amendment in section 40(a)(ia) was held as retrospective and, therefore, no disallowance is called for in the present case for this part amount because TDS was deposited by the assessee in the government account before the due date for filing of return of income. Respectfully following this judgement of Hon ble Calcutta High Court, this part disallowance is deleted to the extent of Rs.32,18,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of interest u/s 234B, which is a consequential issue and no separate adjudication is called for. 5. In the result, this appeal is partly allowed. 6. Now, we take up the appeal of the assessee in I.T.A.No. 3550/Ahd/2008 in the case of Backbone J K Joint Venture. The grounds raised by the assessee are as under: 1) That the Ld. CIT(A) has grievously erred in law and on facts in holding that the appellant is liable to deduct tax at source within the meaning of section 194C and thereby confirming the addition ofRs.2,93,46,430/- made u/s 20(a)((ia) of the Income tax Act, 1961. 2) That on facts and in law it ought to have been held that it is not a payment to sub contractor but only allocation of receipt to members of assessee AOP, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l disallowance made by the A.O. of Rs.3,53,13,779/-, the Ld. CIT(A) has already allowed part relief and had confirmed only disallowance of Rs.2,93,46,430/-. Now, we delete the balance disallowance also. Ground No.1 is allowed. 7. For ground No.2, no argument was made by the Ld. A.R. and hence, it is inferred that this ground was not pressed and accordingly rejected as not pressed. 8. Ground No.3 is regarding charging of interest u/s 234B but since this issue is consequential, no separate adjudication is called for. 9. In the result, this appeal of the assessee is also partly allowed. 10. In the combined result, both the appeals of the assessees are partly allowed in terms indicated above. 11. Order pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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