TMI Blog2015 (8) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... he file of the Assessing Officer. We accordingly set aside the order of the ld. CIT(A) and restore the matter to the file of the Assessing Officer for making necessary verification and if it is established that the deductees have made payment of tax on the commission received, no disallowance under section 40(a)(ia) of the Act shall be made - Decided in favour of revenue for statistical purposes. - ITA No.49/LKW/2013 - - - Dated:- 6-2-2015 - SHRI SUNIL KUMAR YADAV AND SHRI. A. K. GARODIA, JJ. For The Appellant : Shri. C. P. Singh, D.R. For The Respondent : Shri. Abhinav Mehrotra, Advocate ORDER PER SUNIL KUMAR YADAV: This appeal is preferred by the Revenue against the order of the ld. CIT(A), inter alia, on variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome Tax (Appeals)-II, Kanpur has erred in law and on facts in relying on the order of Hon'ble Apex Court in the case of Hindustan Coca Cola Beverage (P) Ltd. vs. CIT (293 ITR 226), which pertains to the application of section 201(1) and the issue of double taxation at the hands of deductor as well as deductees, whereas the present case relates to application of section 40a(ia), which disallows certain prescribed expenses on which tax has not been deducted at source and/or the same has not been paid to government account within the stipulated time. 5. That the order of Ld. Commissioner of Income Tax (Appeals)-II, Kanpur dt. 19.10.2012 needs to be quashed and order dated 29.12.2011 passed by the Assessing Officer to be restored. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A), relying upon the judgment of the Hon'ble Apex Court in the case of Hindustan Cocacola Beverages Pvt. Ltd. vs. CIT (supra) and the order of the Special Bench of the Tribunal in the case of Merilyn Shipping and Transport vs. ACIT (supra), has deleted the addition, having concluded that the whole amount of ₹ 25,00,484/- has already been paid and nothing is shown as payable by the end of the financial year. 4. Aggrieved, the Revenue has preferred an appeal before the Tribunal with the submission that undisputedly TDS was not deducted on payment of aforesaid commission, therefore, the Assessing Officer has rightly invoked the provisions of section 40(a)(ia) of the Act for making disallowance of the said payment. The ld. D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to subsection (1) of section 201, then, for the purpose of this sub-clause, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso. The ld. counsel for the assessee has further contended that since the deductees have paid taxes and the assessee has not been held to be in default, it should be deemed that the assessee has deducted and paid tax on such sum on the date of furnishing of the return. It was further contended that since this proviso is clarificatory in nature, it has retrospective effect. In support of his co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention was invited to the second to the proviso to section 40(a)(ia) of the Act introduced w.e.f.1.4.2003 by the Finance Act, 2012, according to which if the deductee has paid tax, then the assessee shall be deemed to have deducted and paid tax on such sum on the date of furnishing the return of income. Though this proviso was introduced w.e.f. 1.4.2013 but being clarificatory and beneficial provision, it has retrospective effect as held by the Agra Bench of the Tribunal in the case of Rajeev Kumar Agarwal vs. ACIT, Mathura (supra). The ld. counsel for the assessee has submitted that the deductee has filed the return of income, but it is not clear whether the deductee has paid tax thereon. No documentary evidence is placed on record in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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