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TMI Blog2013 (12) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... its grievance is in two folded i.e the CIT(A) has erred in directing the Assessing Officer to assess the rental income on property taken on lease by the assessee and thereafter in sub-letting it on commercial basis under the head 'income from house property' from 'business income'; as done by the Assessing Officer. The other plea of the Revenue is that the CIT(A) has wrongly deleted the disallowance for non-deduction of TDS u/s 40(a)(ia) of the Act amounting to Rs. 41,000/-. 3. None has come present on behalf of the assessee inspite of RPAD notice dated 3.10.2013. Hence, it is proceeded ex-parte. 4. The assessee is a 'firm' engaged in architecture business. On 18.9.2009, it had filed its return disclosing income of Rs. 3,69,76,790/- whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue that since present is an issue of head of income i.e the Assessing Officer had treated the receipts in question as 'business income' and the CIT(A) under the head 'income from house property', the Assessing Officer has to examine the case afresh for the purpose of appropriate computation. In our view, this consequential argument deserves to be accepted since at the time of computing the income under the head 'house property' the case of the assessee has to be considered for the purpose of deductions u/s 24 of the Act. So, we restore this ground to the Assessing Officer for limited purpose of computing the assessee's income in view of our above discussion. 8. Now, we come to the second ground of the Revenue regarding disallowance u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in favour of the Revenue and the hon'ble Allahabad high court in the case of CIT vs M/s Vector shipping Services (P) Ltd has proceeded in favour of the assessee, the case law of hon'ble supreme court in the case of CIT vs Vegetable Products Ltd., 88 ITR 192 would apply so as to decide the issue in assessee's favour. The relevant findings read as follows: "2. In the present case, the Assessing Officer has disallowed the claim of certain expenditure made by the assessee under section 40(a)(ia) on the ground that tax has not been deducted at source and paid to the credit of Government of India. But, the Commissioner of Income-tax(Appeals) deleted the disallowance stating that the amount 'payable' alone would attract the disallowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s vs. Addl.CIT was not acceptable. The Hon'ble Calcutta High Court, through their judgment delivered on 3rd April, 2013 in ITA No.20 of 2013 in the case of CIT vs. Crescent Export Syndicates, has held that the order of the Special Bench of the Tribunal in the case of Merilyn Shipping & Transports vs. Addl.CIT is not acceptable. The same view has again been repeated by the Hon'ble Calcutta High Court in the case of CIT vs. Md. Jakir Hossain Mondal, through their judgment delivered on 4th April, 2013 in ITA No.31 of 2013. The Hon'ble Gujarat High Court in the case of CIT vs. Sikandarkhan N.Tunvar, 33 Taxman.com.133, has also held that the disallowance under section 40(a)(ia) does not distinguish between amounts "paid" and "payable". In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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