TMI Blog2013 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... s deposited on 31.3.2009 - Held that:- This issue is now decided against the assessee by the decision of CIT V. Sikandar Khan [2013 (5) TMI 457 - GUJARAT HIGH COURT] in which the decision of Special Bench in case of ACIT V. Merilyn Shipping & Transport (2012 (4) TMI 290 - ITAT VISAKHAPATNAM) has been overruled and held that the provisions of section 40(a)(ia) is applicable even where amount remains payable or has been paid during the year. Against assessee. PF deduction - Held that:- As during the assessment proceedings it was noticed by the AO that the assessee has shown payment received from Abhir Infrastructure Pvt Ltd. at Rs. 1,38,32,139/- & from the copy of account which was filed by the assessee it shows Rs. 1,52,29,385/-. Thus difference of Rs. 13,97,246/- was added to the income of the assessee as the assessee has shown lesser receipts. Since the total amount receivable from Abhir infrastructure Pvt Ltd. has been considered by the AO, therefore, there is no justification for a separate addition amounting to Rs. 1,12,274/- and accordingly deleted this addition because the mat stands covered by the above addition. In favour of assessee. - ITA No. 1215, 1216/Chd/2011 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not got its accounts audited u/s 44 AB within the statutory time limit and had thereby violated the provisions of section 44AB. The appellant, in its defense, has argued that as per the Circular issued by the CBDT, it was not required to attach the report of audit u/s 44AB alongwith its return of income. The ld. A.O. in turn, rejected these arguments of the assessee stating that the policy of C.B.D.T. is applicable only if the return is filed by the assessee within the stipulated time. 4.1 Notification and circulars are issued from time to time by the CBDT clarifying certain procedural rules and regulations in respect of various provisions of the Income Tax Act. However, such circulars etc. are only clarificatory in nature, and are never intended to substitute the substantive law/statute. These clarifications thus operate within the broad framework of the legal provisions as provided by the Income Tax Act. The clarification issued by the CBDT as relied upon by the Appellant is applicable in a case where the return of income is filed on or before the due date. The purpose of clarification of the CBDT is apparently to simplify the procedure for filing the return of income. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct because if return is filed late then requirement for non filing the audit report cannot be read into such E-filing. In such situation the assessee should have furnished tax audit report with the Assessing Officer before the due date of filing the return. This is particular so in view of Section 44AB which clearly provides that the assessee has to get his accounts audited and such audit report is required to be furnished by the specified date. Specified date has been defined as the due date for furnishing of return by a particular assessee. This shows that furnishing of audit report is independent requirement. Normally tax audit report is filed along with return and because of E-filing no documents are required to be attached. Therefore, in a case where return is filed within time then it can be pleaded that since no documents are required to be attached with the return, therefore, tax audit report should be deemed to have been furnished. This plea cannot be made when the return has not been filed within due date. Further there is no quarrel with the case laws that the penalty cannot be levied if there is a reasonable cause but no reasonable cause was made before us and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill. Vagiynda P.O. Gidi (Kullu) 752000 4 Sh. Parveen Kumar S/o Sh. Dhayan Singh, Vill. Matyoda P.O. Gidi (Kullu) 817000 5 Sh. Raman Sufar S/o Sh. Jwala Sufar ,Vill. Gagarnala P.O. Diyar Distt. Kullu H.P. 890000 6 Sh. Man Chand S/o Sh. Jindu Ram, VPO Jari, Distt .Kullu H.P. 947000 7 Sh. Gulab Singh S/o Sh. Jagat Ram, Vill Matiura, P.O. Haru Distt. Kullu H.P. 540000 8 Sh. Keshav Ram S/o Sh. Hans Raj , VPO Bhuntar , Distt. Kullu H.P. 920000 9 Sh. Megh Singh Thakur S/o Sh. Jog Dhian Thakur , C/o Hotel Shobla, Kullu H.P. 889000 10 M/s Beas Co-Op TPT Co. Ltd. , VPO Dhalpur , Distt. Kullu H.P. 2680877 Total 10220877 It was further noticed that the TDS was deducted in the subsequent Financial Year and was deposited on 31.3.2009. Accordingly the Assessing Officer held that the assessee has violated the TDS provisions and accordingly made an addition u/s 40(a)(ia) of the Act amounting to Rs. 1,02,20,877/-. 11. Before the ld. CIT(A) it was mainly submitted that addition could not be made u/s 40(a)(ia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infrastructure Pvt Ltd. which has been confirmed by the ld. CIT(A) and has not been challenged by the assessee. Therefore, a sum of Rs. 1,12,274/- should be adjusted against the above addition. 19 On the other hand, the ld. DR for the revenue supported the order of Assessing Officer. 20 After considering the rival submissions we find that during the assessment proceedings it was noticed by the Assessing Officer that the assessee has shown payment received from Abhir Infrastructure Pvt Ltd. at Rs. 1,38,32,139/-. From the copy of account which was filed by the assessee, it was noticed that they have paid Rs. 1,52,29,385/-. This difference of Rs. 13,97,246/- was added to the income of the assessee as the assessee has shown lesser receipts. Since the total amount receivable from Abhir infrastructure Pvt Ltd. has been considered by the Assessing Officer, therefore, there is no justification for a separate addition amounting to Rs. 1,12,274/- and accordingly we delete this addition because the mat stands covered by the above addition. 21. In the result, ITA No. 1215/Chd/2011 is dismissed and ITA No. 1216/Chd/2011 is partly allowed. Order pronounced on 11.6.2013. - - TaxTMI - ..... 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