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The Commissioner of Income Tax, Kozhikode Versus M/s Kerala Transport Company

2015 (9) TMI 1049 - KERALA HIGH COURT

Disallowance under section 40(a)(ia) - non deduction of TDS - ITAT confirming the order of CIT(A) restricting the part disallowance - Held that:- Tribunal has proceeded on the basis that the total disallowance was ₹ 61,32,54,820/-. It thereafter states that out of this amount, the Assessing Officer himself admitted the claim of the assessee to the extent of ₹ 30,71,97,689/-. This itself is factually erroneous because paragraph 7 of the first appellate authority's order states that in .....

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hat the dispute was only with regard to ₹ 28,28,38,187/-. Even if the last two figures are added, the total amount would not be the amount of total disallowance as mentioned by the Tribunal. This itself shows that there is error in the figures shown. Secondly, the Tribunal says that it is an admitted fact that the assessee has filed form 15-I to the extent of ₹ 27,67,63,963/- and it is on that basis, the Tribunal confirmed the finding of the first appellate authority sustaining the d .....

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And Shaji P. Chaly, JJ. For the Appellant : Sri Christopher Abraham And Sri K M V Pandalai, Advs For the Respondent : Sri T M Sreedharan (sr), Sri V P Narayanan And Smt Divya Ravindran, Advs JUDGMENT Antony Dominic, J. 1. This appeal is filed by the Revenue challenging the order passed by the Income Tax Appellate Tribunal, Cochin Bench in ITA.262/14. 2. By Annexure A, the Assessing Officer completed the assessment for the year 2007-08, disallowing ₹ 61,32,54,820/- under section 40(a)(ia)of .....

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1/- is taken by the first appellate authority from the remand report of the Assessing Officer dated 17.2.2014, which is also extracted in that order. Proceeding further, the first appellate authority disposed of the appeal deleting the disallowance except for the amount of ₹ 60,74,224/-. 3. The Revenue filed appeal before the Tribunal as ITA.262/14 against the order of the first appellate authority. The appeal was heard along with ITA.261/14 filed by the assessee and both the appeals were .....

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the extent of ₹ 27,67,63,963. Section 40(a)(ia) provides for disallowance of the expenditure which is otherwise allowable in case tax which is deductible at source under Chapter XVIIB was deducted or after deduction it was not paid. Therefore, it is for the revenue to show that the amount to the extent of ₹ 28,28,38,187 is liable for taxation and hence the assessee is liable to deduct tax. When the assessee received form 15-I/15-J from the recipient saying that their taxable income .....

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unal is of the considered opinion that to the extent of ₹ 27,67,63,963/- for which the assessee has filed form 15-I, there cannot be any disallowance u/s 40(a)(ia) of the Act. 13. Now what remains is only disallowance of ₹ 60,74,224. Admittedly, the assessee has not filed form 15-I. The ld. Senior counsel now claims that the assessee could not collect form 15-I for lapse of time. It is not for the assessee to collect from 15-I; it is for the receipt of the amount to furnish form 15-I .....

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ered opinion that the assessee is liable to deduct tax. Therefore, failure to deduct tax would attract disallowance u/s 40(a)(ia) of the Act. Hence, the CIT(A) has rightly restricted the disallowance to the extent of ₹ 60,74,224. This Tribunal do not find any infirmity in the order of the lower authority. Accordingly, the same is confirmed." The Tribunal thus dismissed the appeal filed by the Revenue. 4. In this appeal, the Revenue challenges the order passed by the Tribunal and the q .....

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. Reading of paragraph 12 of the order of the Tribunal shows that the Tribunal has proceeded on the basis that the total disallowance was ₹ 61,32,54,820/-. It thereafter states that out of this amount, the Assessing Officer himself admitted the claim of the assessee to the extent of ₹ 30,71,97,689/-. This itself is factually erroneous because paragraph 7 of the first appellate authority's order states that in the report dated 13.11.2013, what is stated by the Assessing Officer wa .....

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