TMI Blog2015 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... able but at the same time, the issue has to go back to the file of the Assessing Officer for fresh decision after finding out the outcome of the assessment in assessment year 2005-06. - Decided in favour of assessee for statistical purposes. Payment of salary by transfer to UP Cooperative Union - deputed persons / supervisors - Non deduction of TDS - Held that:- From the Para from the order of CIT(A), we find that a clear finding has been given by him that the payment of salary by transfer to UP Cooperative Union of ₹ 1,75,000/- each in the case of 3 supervisors is without deduction of TDS and so is the case with other supervisors to whom part of the salary is disbursed by the assessee and part is transferred to UP Cooperative Union for statutory dues. This finding is also given that there is no evidence of any claim of deduction under section 80C of the Act which could have reduced the income to below taxable limit. Hence, it is seen that the TDS was deductible and since it was not done by the assessee, the disallowance made by Assessing Officer and confirmed by CIT(A) is proper.- Decided against assessee. Disallowance of professional charges paid to Shri R.K. Nigam - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this issue was decided by learned CIT(A) as per Para 7(3) to Para 7 (4) of his order on the basis that return of income for assessment year 2008-09 was filed by the assessee after expiry of due date for filing of return of income. He submitted that admittedly, the return of income for assessment year 2008- 09 was filed beyond due date and therefore, loss of the assessee in that year of ₹ 4,96,203/- cannot be carried forward and ser off in the present year but apart from that, the assessee has incurred loss in all earlier years i.e. assessment year 2004-05 to 2007-08 and in all those years, the return of income were filed before due date i.e. on or before 31st October of the respective assessment year. He submitted that the loss of those years should be allowed to be set off in the present year. He also submitted that the relevant assessment order for assessment year 2004-05 is available on pages 90 to 94 of the paper book and copy of acknowledgement for assessment year 2005-06 is available on page 95 of the paper book and for this year, there was no intimation received and no assessment framed u/s 143(3) of the Act. Similarly, the copy of assessment order for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuance of a return filed in accordance with the provisions of sub-section(3) of section 139, shall be carried forward and set off under sub-section(1) of section 72 or sub-section(2) of section 73 or sub-section(1) or sub-section(3) of section 74 or sub-section (3) of section 74A. Section 139(3) If any person who has sustained a loss in any previous year under the head Profits and gains of business or profession or under the head Capital gains and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) or sub-section (3) of section 74 or sub-section (3) of section 74A, he may furnish, within the time allowed under sub-section (1) a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1). 5.2 From the provisions of sub section (3) of section 139, it is seen that assessee s obligation is confined to the extent that in the year of incurring loss, the assessee should file the return of income withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are year are eligible for set off in the present year if there was no set off in A.Y. 2005 06 of the loss for A.Y. 2004 05. The assessment order for assessment year 2005-06 is not available and therefore, this is necessary to find out as to what was the assessed income in that year although the return of income was filed within the due date for this year also and if it is foun that there was any loss assessed in that year, such loss should also be eligible for set off in the present year. 7. We have also come across a judgment of Hon'ble Apex Court rendered in the case of CIT vs. Manmohan Das (Deceased) [1966] 59 ITR 699 (SC) wherein it was held, although in the context of 1922 Act, that whether the loss in any year may be carried forward to the following year and set off against the profits and gains of the subsequent year, has to be determined by the Income-tax Officer who deals with the assessment of the subsequent year and a decision by the Income-tax Officer who computes the loss in the previous year that the loss cannot be set off against the income of the subsequent year is not binding. Hence, we find that as per this judgment and also as per provision of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f TDS wherever applicable. It is also stated that the amount pertains to transfer to UP Cooperative Union for supervisors supplied by them. I have examined the issue. I find that TDS of ₹ 336/- has been deducted on payments of ₹ 1,85,519/- to Shri R.P. Vishwakarma and has been deducted on payment of ₹ 2,09,797/- to Shri indrajeet Singh. The disallowance of ₹ 3,95,316/- out of ₹ 8,11,453/- is not justified as the payment has been made after deduction of TDS. As regards the claim of the appellant that the concerned employees would have given details of investment under section 80C of the Act and therefore the TDS was not deducted. I find that the contentions lacks the evidentiary value in absence of documents in support. I also find that payments of salary by transfer to UP Cooperative Union of ₹ 1,75,000/- each in the case of 3 supervisors is without deduction of TDS and so is the case with other supervisors to whom part of the salary is disbursed by the appellant and part is transferred to UP Cooperative Union for statutory dues. Such payments of ₹ 4,16,137/- are without deduction of TDS and there is no evidence of any claim of deduction un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The reimbursement of expenses is therefore included in the payment on which TDS is to be deducted on account of payment of fees. The disallowance of ₹ 94,234/- under section 40(a)(ia) of the Act is confirmed. 15.1 From the above Para from the order of CIT(A), we find that the claim of the assessee is regarding payment of ₹ 94,234/- including the amount of ₹ 36,233/- for reimbursement of expenses. This is by now a settled position of law that if the bill raised for reimbursement of expenses is separate and the bill for service charges is raised separately then there may be case of no deduction of TDS from the reimbursement but the assessee could not produce details that the bills for service charges was raised separately and the claim for reimbursement of expenses was made separately. In the absence of separate bill, composite amount has to be considered for TDS purposes and under these facts, we do not find any reason to interfere in the order of learned CIT(A). Accordingly, ground No. 5 is also rejected. 16. Ground No. 6 is as under: 6. The Ld. CIT (A) erred on facts and in law in not appreciating the facts of the present case that the profit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re written back by the assessee. 20. Learned D.R. of the Revenue submitted that this additional ground should not be admitted and even if admitted there is no merit in this ground. 21. We have considered the rival submissions. We find that the claim of the assessee is a legal claim, which can be raised at any stage and therefore, we admit the additional ground raised by the assessee. 22. After hearing both sides on the additional ground, we feel that the matter should go to the file of the Assessing Officer for fresh decision after examining this aspect as to whether the write back of the provision in the present year is out of provision of which year and whether the provision in the respective year was allowed or not and if it is found that the provision in the year of creation of provision was disallowed then the reversal of the provision in the present year should not be taxed and this should be excluded from the profit as per profit loss account. We, therefore, restore this matter to the file of the Assessing Officer for fresh decision in the light of above discussion after providing due and reasonable opportunity of being heard to the assessee. This ground is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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