TMI Blog2014 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... med of the amount on which TDS was required to be deposited - CIT(A) is directed to apply the correct position of law as on date as per the interpretation of the amended provisions of IT Act in respect of Section 40(a)(ia) – thus, the matter is remitted back to the CIT(A) for fresh adjudication – Decided in favour of Assessee. Non-deduction of TDS – Held that:- CIT(A) has not dealt with the explanation of the assessee - CIT(A) has only dealt with the legal aspect but remained silent on the factual aspect of the matter – thus, the matter is required to be remitted back to the CIT(A) for adjudication – Decided in favour of Assessee. - ITA No. 707/Ahd/2010 - - - Dated:- 17-4-2014 - Shri Mukul Kr. Shrawat And Shri N. S. Saini,JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 was under the proprietory concern and the second period from 01.10.2005 to 31.03.2006 was under the assessee-firm. First part of the period was assessed separately by ITO, Ward-5, Bharuch. Since, the TDS was not paid on the 7th day of the next month but it was paid in the month of August, 2006, therefore, the AO has taxed in the hands of the assessee by invoking the provisions of Section 40(a)(ia) of IT Act. 3. In this regard, when the matter was carried before the First Appellate Authority, the assessee has explained that due to the amendment in the law and as decided by several courts if the amount of TDS is deposited before the due date of filing of the return then the same should be treated as paid within time. However, learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both the sides. From the side of the assessee, learned AR has placed reliance on an order of Hon ble ITAT D Bench Ahmedabad pronounced in the case of ITO Vs. M/s. Shreeji Corporation (ITA No.2823/Ahd/2011, A.Y. 2007-08 dated 22.06.2012, wherein a reliance was placed on certain decision of the Tribunal and thereafter it was held as under: 6. The above findings of ld. CIT(A) has excluding in the case of Shri Arvind Bhai Himat Bhai and Rajput Umedbhai Gansingh had deposited the tax in government account before filing of return is not controverted by the ld. DR. This issue has been already decided by the Hon ble High Court of Calcutta in the matter of Commissioner of Income Tax Kolkata-XI Vs. Virgin Creations in G.A. No.3200/2011. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Having heard the submission of both the sides, we are of the view that the matter should go back to learned CIT(A) because one of the vital fact was not brought on record that whether the entire amount of Rs.20,01,907/- pertained to the period in which the assessee-firm came into existence, or part of the amount pertained to the period which was under the proprietorship of one Sri Dineshbhai Chunawala. So the learned CIT(A) is required to first ascertain whether the entire expenditure was claimed by the firm in its books of account or part of the expenditure was claimed by the said proprietor. Needless to say, the provisions of Section 40(a)(ia) are to be applied only in a situation when an expenditure is claimed of the impugned amount on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the following manner: It is humbly submitted that insofar as the payment to Avon Fabricators is concerned, no payments have been effected. A perusal of the copy of account enclosed at page 34 of the paper-book would evidence that there are two credit entries in respect of bills raised by the said party and the entire amount of Rs.70,684/- is shown as outstanding. There were some disputes with this party in regard to the quality of work done and therefore, the payments were withheld, pending satisfactory completion of work and therefore, no TDS was deducted. It is submitted that the appellant-firm had engaged different persons for executing its work and there is no contract between the appellant-firm and the said party. Under the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period 1st October 2005 and onwards, amount of Rs.1,30,450/- has been credited, on which admittedly no TDS has been made. Basically the appellant-firm had engaged different transporters for executing its different work. Therefore, since no contractor and sub-contractor relationship between the appellant-firm and Payal Transport, the appellant firm was not liable to deduct tax under section 194C from the amounts payable and therefore same could not be disallowed under the provisions of section 40(a)(ia) of the Act. For the proposition, reliance is placed on the recent decision of the hon'ble ITAT, Cuttack Bench in RR Caryying Corporation v ACIT, 126 TTJ 240. 8. Having heard the submissions of both the sides. We have noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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