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TMI Blog2013 (12) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessees and thereafter with the hearing of the remaining appeals. 2.2. This set of appeals, which comprises of two revenue appeals and one assessee's appeal, was called out. Ld. Counsel for the assessee contended that the issues involved were covered by ITAT judgments in assessee's own case and it has been adjourned several times, therefore, it may be heard. As no DR was present, matter was passed over. 2.3. At about 10.50 AM Shri D.K. Mishra CIT(DR) entered the courtroom in a huff and gave a vague reason for his absence that he was held up some where. Since Shri D.K. Mishra made the appearance, this passed over matter was called out. It may be mentioned that Shri D.K. Mishra CIT(DR) is the Commissioner In-charge of the "D" Bench and it is his duty to ensure that the court is properly assisted to discharge its function of hearing and decide appeals. On the calling out of this matter for hearing, Shri D.K. Mishra replied that he will not argue these appeals as they are not assigned to him and other DR who is absent, also was held up in traffic jam. 2.4. It was clearly pointed out to him that there are two revenue's appeals and it is its duty of the revenue to ensure that thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and he got delayed which resulted in non-appearance. He was reminded that marriage ceremonies are fixed well in advance and due intimation should be given if the DRproceeds on a planned leave. The above facts are being narrated in detail to make the department aware of the situation of some of the DRS whose recalcitrant way of working is leading to un-anticipated adjournments and obstruction of justice, which deserves to be improved. 3. To promote public interest and dispensation of justice, as a symbolic gesture, the Bench deems it fit and in the interest of justice to impose a token cost of Rs. 500/- on the absentee DR Mr. Bhatia which should be deducted from his salary. This order should be duly forwarded by Registry to CIT(DR)-I, Chief Commissioner In-charge of Delhi Bench, the learned Chairman CBDT for record purposes. 4. Now we proceed to decide these appeals. We have heard ld. AR of the assessee and perused the material available on record and we proceed to decide the appeals as under: Assessment year 2005-06 ( Revenue's appeal): 5. Sole effective ground raised is as under: "On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the file of assessing officer, the matter may be accordingly set aside back to the file of assessing officer with similar directions. 7. We have heard ld. AR of the assessee and gone through the relevant material available on record. The issue has been set aside by the ITAT in earlier years (supra) to decide the issue in the light of observations made by in the ITAT order. Respectfully following the same, we set aside the issues back to the file of assessing officer with similar directions. The appeal of the revenue is allowed for statistical purposes only. A.Y. 2008-09 - Cross appeals: 8. Sole effective ground raised by the Revenue is as under: "On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in deleting the addition of Rs. 15,81,991/- out of total addition of Rs. 18,84,991/- made by the Assessing officer on account of various expenses even though these expenses were incurred on exempted incomes, therefore not allowable in view of section 14A of the Income Tax Act, 1961 and in the light of following judgments: (i) Jurisdictional Punjab & Haryana High Court in the case of CIT Vs. Abhishek Industries (186 ITR 1); (ii) Hon'ble M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commercial expediency' as has been laid down by the Apex Court in the case of S.A. Builders 288 ITR 1 (SC) and Munjal Sales Corporation 298 ITR 298 (SC). Thus not only the facts qua the Lakhani Marketing Incorporation stated to be identical to assessee's case in the context of 'commercial expediency' need to be taken into consideration but also the finding in assessee's own case in 2003-04 and 2004-05 A.Ys is also relevant as the issue in the earlier years in the case of assessee has been restored to the A.O. vide order dt. 16-4-2009 in ITA 2233 and 4545/Del/2007. Accordingly after marshalling the facts, the case law can be applied. 8.4. Accordingly for the detailed reasons given hereinabove the issue is restored to the file of the A.O. for both the years with the direction to decide the same in accordance with law by way of speaking order. Needless to say that t he assessee shall be afforded a reasonable opportunity of being heard." 12. It is pleaded that both the grounds in case of assessee and revenue's appeal should be set aside on the issue of disallowance u/s 14A. 13. Apropos ground no. 1 of assessee's appeal, brief facts are that disallowance u/s 40(a)(ia) was made on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisions of section 201(1) and not in the context of section 40(a)(ia) of the Act, which are separate and distinct provisions meant for ensuring compliance to the provisions of Chapter XVII of the Act. Keeping in view the provisions of law and the decision of Jurisdictional ITAT in Umang Dairies Ltd. (supra), the A.O was fully justified in disallowing the interest of Rs. 49,87,440/- under section 40(a)(ia) of the Act since no TDS at all was made. Hence, the addition made by the A.O is upheld and this ground of appeal is dismissed." Aggrieved, assessee is before us. 15. Ld. Counsel for the assessee relied on ITAT Visakhapatnam Special Bench judgment in the case of Merilyn Shipping & Transports vs. Addl. CIT (2012) 136 ITD 23 (Visakhapatnam) (SB), holding that what can be disallowed u/s 40(a)(ia) is only the outstanding balance as on 31st March of the year and cannot be invoked against payment made prior to 31st March of every year. 16. Ld. Counsel though pleaded that the Special Bench judgment has been reversed by the Hon'ble Calcutta and Madras High Courts. Hon'ble Allahabad High Court has taken a view in favour of Merilyn Shipping & Transports. 17. Since the issue in que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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