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Income Tax Officer, Kolkata Versus M/s Ashok Trading Company

2015 (11) TMI 638 - ITAT KOLKATA

TDS u/s 194C - disallowance u/s 40(a)(ia) - non deduction of TDS on Transport Charges - Held that:- The reasoning of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd (2009 (11) TMI 27 - SUPREME COURT) will equally to the amendment to Sec.40(a)(ia) of the Act whereby a second proviso was inserted in sub-clause (ia) of clause (a) of Section 40 by the Finance Act, 2012, w.e.f. 1-4-2013. The provisions are intended to remove hardship. It was argued on behalf of the revenue that the exist .....

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r the parties to whom the transport charges have been paid, have shown in their income tax returns or not and pass the order according to Law. - Decided in favour of Revenue for the statistical purpose.

TDS u/s 194C - disallowance u/s 40(a)(ia) - non deduction of TDS on Clearing & Forwarding Charges - CIT(A) deleted the addition - Held that:- In case of M/s Mithla Shipping Agency the TDS has been deducted and deposited. So the TDS provisions have been complied with. The necessary docu .....

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eleted the addition - Held that:- CIT(A) has given relief in respect of rent payment to certain parties on the basis of documents produced by the assessee. However the CIT(A) did not mention merit for the allowance of the rent. Further the disallowance of the rent payment due to violation of the provision of section 194C read with section 40(a)(ia) does not hold good as the rent payment to each party does not exceed ₹ 1.20 lakh. The Ld. AR drew our attention on page No. 21 of the paper boo .....

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pass the speaking order as per law. - Decided in favour of revenue for the statistical purposes.

Unexplained credit under section 68 - receipt of advance unexplained - CIT(A) deleted the addition - Held that:- Since the confirmation from the assessee has been submitted for the advance receipt and the supply of the goods has also been made in the subsequent year, we do not want any merit in the ground of appeal of the Revenue. - Decided against Revenue - ITA No. 650/Kol/2012 - Dated:- .....

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his order dated 05.12.2008 for assessment year 2006- 07.Revenue has raised the following grounds of appeal. "(i) On the facts and circumstances of the case, Ld. CIT(A) was not justified in holding that the facts and circumstances of the case of the assessee was identical with the facts and circumstances of the case of Rakshit Transport Vs. ACIT, Circle-2, Burdwan in ITA No. 261/Kol/2009 as read with the case of Punjab & Haryana High Court in the case of CIT Vs. United Rice land Ltd., w .....

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on ₹ 2,69,870/- without mentioning by him the particulars of such deductions and particulars of tax deposits into the government account contrary to the facts on record; and regarding payment to Simla Clearing Services amounting to ₹ 1,06,000/- that the payment is on account of Customs and Port Expenses without there mentioning any materials in support of his such observation regarding the fact; and accordingly, he was not justified in deleting the addition of ₹ 4,00,870/- u/s. .....

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order or materials and is thus suffering from perversity making his order as liable to be cancelled. (iv) On the fats and in relation to the circumstances Ld. CIT(A) is not justified in deleting the addition of ₹ 2,35,105/- u/s. 68 on account of Advance from Sundry Debtors out of addition of ₹ 2,95,105/- unjustifiable placing onus on the department and merely on thefact that the Assessing Officer has not verified independently from the concerned party M/s Ankita Enterprises in the r .....

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expenditure of ₹ 7,64,717/- towards the Transport Charges. The same expenditure has been disallowed by the AO for non-deduction of TDS in terms of section 194C read with section to 40(a)(ia) of the Act. The details of the expenses can be summarized in the following manner : Sl. No. Name of party Amount paid 1 M/s Sangam Roadways 5,68,894/- 2 M/s Mangalam Privahan Pvt. Ltd. 1,95,823/- So the above expenses has been disallowed and added to the income of assessee. Before the Ld. CIT(A) , the .....

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ectly to truck owners/operators or through Transporters, where there was no oral or written contract between the assessee and Transporter, the assessee was not liable to deduct tax at source on Freight Charges paid to truck owners/operators. The submissions of appellant are accepted on this point and it is held that provisions of Section 194C are not applicable on the payments made by the appellant. The disallowance made u/s. 40(a)(ia) is therefore deleted. (Relief ₹ 7,64,714/-)". Agg .....

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the provision of deducting the tax does not arise. In support of his claim, the Ld. AR submitted the various case laws as enumerated below:- 1) CIT Vs M/s Stumm India, ITA No. 127 of 2009 in the Hon'ble High Court at Calcutta. 2) CIT Vs M/s S.S. Impex, ITA No. 977/kol/2011 in the ITAT at Kolkata. 3) CIT Vs Universal Traffic Co., Express Transport Pvt. Ltd. ITA Nos. 1426 to 1429 /Mum/2013 & 1473 to 1475/Mum/2013. In all the above cases, it was held that the provisions of TDS do not attra .....

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it is important to note that the even the oral and unwritten contracts are valid contract in the eyes of law. So the above stated transactions very much fall within the purview of the TDS provisions. The same fact has also been decided by the Hon'ble jurisdictional High court in the case of Crescent Exports vs CIT (2013) 33 taxmann.com 250 (Cal) wherein even the oral or unwritten contracts were held valid and within the purview of sections 194C read with section 40(a)(ia). So the contention .....

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ertion to the second proviso to section 40(a)(ia) of the Act by the Finance Act, 2012 w.e.f. 1.4.2013 where tax is paid by the recipient then no disallowance u/s. 40(a)(ia) should be made as per the second proviso referred to above. The aforesaid proviso though stated to be w.e.f. 1.4.2013 should be construed as having operation with retrospective effect from 1.4.2005 when the provisions of section 40(a)(ia) of the Act were first introduced. The provisions are intended to remove hardship which w .....

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ctive in operation, will apply retrospectively. The question for our consideration is as to whether section 40(a)(ia) amended by the Finance Act, 2012 with effect from 01.04.2013 is retrospective from 01.04.2005 or prospective from the date specified. In order to find answer to this question, it would be relevant to note down the legislative history of the provision. Section 40 has certain clauses providing for the amounts which are not deductible. Sub-clause (ia) of clause (a) of section 40 was .....

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or, being resident, for carrying out any work (including supply of labour for carrying out any work), on or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section (1) of section 200 : Provided that where in respect of any such sum, tax has been deducted in any subsequent year or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under sub-sectio .....

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all have the same meaning as in clause (a) of the Explanation to section 194J; (iv) "work" shall have the same meaning as in Explanation III to section 194C; " 4. The Memorandum explaining the provisions in the Finance Bill explained the rationale of the insertion of the new provision in following words :- "With a view to augment compliance of TDS provisions, it is proposed to extend the provisions of section 40(a)(i) to payments of interest, commission or brokerage, fees for .....

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has been deducted under Chapter XVII-B or paid in any subsequent year, the sum of payment shall be allowed in computing the income of the previous year in which such tax has been paid. The proposed amendment will take effect from 1st day of April, 2005 and will, accordingly, apply in relation to the assessment year 2005- 2006 and subsequent years. [Clause 11]" Thereafter the Finance Act, 2008 made amendment to clause (a) in subclause (ia) in section 40 with retrospective effect from 1st Apr .....

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eductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-section (1) of section 139 ; or (B) in any other case, on or before the last day of the previous year. Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted- (A) during the last month of the previous year but paid after the said due date ; or (B) during any other month of the previous year but paid after the end of the s .....

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cted during the last month of the previous year but there was failure to pay such tax on or before the due date specified in sub-section (1) of section 139 of the Act. In other words, any amount on which tax was deductible during last month of the previous year, that is March 2005, but was paid before 31st October, 2005, being the due date u/s 139(1), the deductibility of the amount was kept intact. The second category included cases other than those given in category first. To put it simply, if .....

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rvices payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or; after deduction, has not been paid on or before the due date specified in sub-section (1) of section 139 Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted d .....

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in the earlier para, causing disallowance on the basis of the period of the previous year during which tax was deductible. The first category of disallowances included the cases in which tax was deductible and was so deducted during the last month of the previous year but there was failure to pay such tax on or before the due date specified in sub-section (1) of section 139. The Finance Act, 2010 has not tinkered with this position. The second category of the Finance Act, 2008 which required th .....

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has been eased to extend such time for payment of tax up to due date u/s 139(1) of the Act. As per the new amendment, the disallowance will be made if after deducting tax at source, the assessee fails to pay the amount of tax on or before the due date specified in subsection (1) of section 139 of the Act. The effect of this amendment is that now the assessee deducting tax either in the last month of the previous year or first eleven months of the previous year shall be entitled to deduction of .....

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ew to remove the unnecessary hardship caused to the assessee by the earlier provision. The Special Bench by its order dated 9.9.2011, however, held that the amendment carried out by the Finance Act, 2010 with retrospective effect from assessment year 2010-2011 cannot be held to be retrospective from assessment year 2005-2006. The Special Bench held that the amendment brought out by the Finance Act, 2010 to section 40(a)(ia) w.e.f. 01.04.2010, is not remedial and curative in nature. 5. Prior to t .....

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nd may, 2004 to 30.11.2004. Tax had been deducted at source but were paid to the Government only on 28.10.2005 and not within the time contemplated by Section 200(1) of the Act. The dyeing charges were paid between 5.4.2004 to 20.8.2004. Tax was deducted at source but was paid to the Government only on 28.10.2005. Frieght outward charges were paid without deduction of tax at source. Interest on loans were credited to the creditors account on 31.3.2005 to the extent they were paid after the due d .....

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ed as a deduction. In other words it was argued that the amendment by the Finance Act, 2010 to the provisions of Sec.40(a)(ia) has to be held to be retrospective w.e.f. 1-4-2005. The ITAT Kolkata Bench by its order dated 15.12.2010, held as follows: "8. After hearing the rival submissions and on careful perusal of the materials available on record, keeping in view of the fact that though the Ld.D.R. submitted that the decisions of the Coordinate Benches are not binding and the Kolkata bench .....

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Finance Act 2010 thus were resulting into unintended consequences and causing grave and genuine hardships to the assesses who had substantially complied with the relevant TDS provisions by deducting the tax at source and by paying the same to the credit of the Government before the due date of filing of their returns u/s.139(1). In order to remedy this position and to remove the hardships which was being caused to the assessee belonging to such category, amendments have been made in the provisi .....

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e the provision workable, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. In the present case, the amount of tax deducted at source from the freight charges during the period 01/04/2005 to 28/02/2006 was paid by the Assessee in the month of July and August 2006 i.e., well before the due date of filing of its return of income for the year under consideration. This being the undisputed position, we hold that the disal .....

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Court. Therefore, respectfully following the decision of the Coordinate Benches (supra), we allow the ground nos. 1 to 3 of the assessee's appeal." 6. As against the aforesaid decision, the Revenue preferred appeal before the Hon'ble Calcutta High Court. The Hon'ble Calcutta High Court in ITA No. 302 of 2011, GA 3200/2011 decided on 23.11.2011, held as follows: "We have heard Mr. Nizamuddin and gone through the impugned judgment and order. We have also examined the point f .....

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ear under consideration. This factual position was undisputed. Moreover, the Supreme Court, as has been recorded by the learned Tribunal, in the case of Allied Motors Pvt. Ltd. and also in the case of Alom Extrusions Ltd., has already decided that the aforesaid provision has retrospective application. Again, in the case reported in 82 ITR 570, the Supreme Court held that the provision, which has inserted the remedy to make the provision workable, requires to be treated with retrospective operati .....

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cond proviso shall be inserted in sub-clause (ia) of clause (a) of Section 40 by the Finance Act, 2012, w.e.f. 1-4-2013 : "Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (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 .....

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ferred to in sub-section (1A) of Section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with .....

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ntant in such form as may be prescribed: Memorandum explaining the provisions while introducing Finance Bill, 2012 provides the justification of the amendment to section 40(a)(ia) in the following words:- "In order to rationalise the provisions of disallowance on account of non-deduction of tax from the payments made to a resident payee, it is proposed to amend section 40(a)(ia) to provide that where an assessee makes payment of the nature specified in the said section to a resident payee w .....

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th the provisions of the Act. Such compliance will ensure revenue collection without much hassle. When the object sought to be achieved by those provisions are found to be achieved, it would be unjust to disallowance legitimate business expenses of an Assessee. Despite due collection of taxes due, if disallowance of genuine business expenses are made than that would be unjust enrichment on the part of the Government as the payee would have also paid the taxes on such income. In order to remove t .....

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me; and (iii) payee has paid the tax due on the income declared by him in such return of income, and the payer furnishes a certificate to this effect from an accountant in such form as may be prescribed. The question is as to whether the amendment made as above is prospective or retrospective w.e.f. 1.4.2005 when the provisions of Sec.40(a)(ia) were introduced. Keeping in view the purpose behind the proviso inserted by the Finance Act, 2012 in section 40(a)(ia) of the Act, it can be said to be d .....

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ely w.e.f. 1st April, 1988? Prior to Finance Act, 2003, the second proviso to s. 43B of the IT Act, 1961 (for short, "the Act") restricted the deduction in respect of any sum payable by an employer by way of contribution to provident fund/superannuation fund or any other fund for the welfare of employees, unless it stood paid within the specified due date. According to the second proviso, the payment made by the employer towards contribution to provident fund or any other welfare fund .....

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econd proviso stood deleted w.e.f. 1st April, 2004, and certain changes were also made in the first proviso by which uniformity was brought about between payment of fees, taxes, cess, etc., on one hand and contribution made to Employees' Provident Fund, etc., on the other. According to the Department, the omission of the second proviso giving relief to the assessee(s) [employer(s)] operated only w.e.f. 1st April, 2004, whereas, according to the assessee(s)-employer(s), the said Finance Act, .....

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the second proviso dealing with the items covered in S. 43B(b) (i.e., contribution to employees welfare funds). After considering the same, the Court was of the view that it was clear that prior to the amendment of 2003, the employer was entitled to deduction only if the contribution stands credited on or before the due date given in the Provident Fund Act on account of second proviso to S. 43B. The situation created further difficulties and as a result of representations made by the industry, t .....

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ed merely by making a book entry based on mercantile system of accounting. At the same time, s. 43B (main section) made it mandatory for the Department to grant deduction in computing the income under s. 28 in the year in which tax, duty, cess, etc., is actually paid. However, Parliament took cognizance of the fact that accounting year of a company did not always tally with the due dates under the Provident Fund Act, Municipal Corporation Act (octroi) and other tax laws. Therefore, by way of fir .....

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ted contributions and deprive the workmen of the rightful benefits under social welfare legislations by delaying payment of contributions to the welfare funds. However, as stated above, the second proviso resulted in implementation problems, which have been mentioned hereinabove, and which resulted in the enactment of Finance Act, 2003, deleting the second proviso and bringing about uniformity in the first proviso by equating tax, duty, cess and fee with contributions to welfare funds. Once this .....

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ion was, whether sales-tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant sales-tax law should be disallowed under s. 43B of the Act while computing the business income of the previous year? That was a case which related to asst. yr. 1984-85. The relevant accounting period ended on 30th June, 1983. The ITO disallowed the deduction claimed by the assessee which was on account of sales-tax collected by the assessee for .....

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t of that proviso because it operated retrospectively from 1st April, 1984, when s. 43B stood inserted. This is how the question of retrospectivity arose in Allied Motors (P) Ltd. Etc. (supra). This Court, in Allied Motors (P) Ltd. Etc. (supra) held that when a proviso is inserted to remedy unintended consequences and to make the section workable, a proviso which supplies an obvious omission in the section and which proviso is required to be read into the section to give the section a reasonable .....

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fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Ltd. Etc. (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively w.e.f. 1st April, 1988 (when the first proviso stood inserted). Lastly, we may point out the hardship and .....

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ed deduction for all times. In view of the second proviso, which stood on the statute book at the relevant time, each of such assessee(s) would not be entitled to deduction under s. 43B of the Act for all times. They would lose the benefit of deduction even in the year of account in which they pay the contributions to the welfare funds, whereas a defaulter, who fails to pay the contribution to the welfare fund right upto 1st April, 2004, and who pays the contribution after 1st April, 2004, would .....

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oncluding, we extract hereinbelow the relevant observations of this Court in the case of CIT vs. J.H. Gotla (1985) 48 CTR (SC) 363 : (1985) 156 ITR 323 (SC), which reads as under : "We should find out the intention from the language used by the legislature and if strict literal construction leads to an absurd result, i.e., a result not intended to be subserved by the object of the legislation found in the manner indicated before, then if another construction is possible apart from strict li .....

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it would operate w.e.f. 1st April, 1988 (when the first proviso came to be inserted). For the above reasons, we find no merit in this batch of civil appeals filed by the Department which are hereby dismissed with no order as to costs." 7. We are of the view that the reasoning of the Hon'ble Supreme Court in the case of Alom Extrusions Ltd(supra) will equally to the amendment to Sec.40(a)(ia) of the Act whereby a second proviso was inserted in sub-clause (ia) of clause (a) of Section 40 .....

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be hardship. Since the issue has not been adjudicated by the CIT(A), we are of the view to restore the file to CIT(A) for verifying that whether the parties to whom the transport charges have been paid, have shown in their income tax returns or not and pass the order according to Law. Hence this ground of Revenue's appeal is allowed for the statistical purpose. 8. Coming to second issue of Revenue's appeal. During the year under consideration the assessee claimed an expenditure of ͅ .....

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o the total income of the assessee. Aggrieved, assessee went in appeal before Ld.CIT(A) and demonstrated that the TDS against the bill of M/s Mithila shipping agency was duly deducted and remaining other two parties, assessee submitted that the major payment was towards the reimbursement of the expenses and their service charges were mere amount of ₹ 6,000/- and ₹ 3,000/- respectively. Considering the same Ld.CIT(A) deleted the addition. Aggrieved, Revenue filed appeal before the Tri .....

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e rest of the parties, the major payment was the reimbursement of the expenses and the services charges of the parties were below the limit as specified under the provisions of TDS. The bill for the service charge and reimbursement of expenses are placed on pages 32 and 33 of the paper book. Hence the ground of appeal of the Revenue is dismissed. 10. Coming to third issue of Revenue's appeal. During the year under consideration the assessee claimed an expenditure of ₹ 6,29,940/- toward .....

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ced as many as nine parties to whom the rent was paid during the relevant year and the assessee also demonstrated that each party was paid rent less than a sum of ₹ 1.20 lakhs during the year. Hence the provision of TDS does not attract to this transaction. However many parties to whom the confirmation letter was sent by the AO, got returned. So the CIT(A) sustained the disallowance of ₹ 3,00,040/- from where the confirmation was not received. However the addition for a sum of ₹ .....

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tion 194C read with section 40(a)(ia) does not hold good as the rent payment to each party does not exceed ₹ 1.20 lakh. The Ld. AR drew our attention on page No. 21 of the paper book, where the details of the rent paid to the parties has been mentioned. The rent paid to the different parties is below the taxable limit specified u/s 194I of the Act. In view of the non- speaking order of the CIT(A) , we are of the opinion in the interest of justice and fair play to give one more opportunity .....

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