TMI Blog2013 (12) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Disallowance u/s 40(a)(ia) for non-deduction of TDS - Held that:- CIT(A) has rightly directed the Assessing Officer to examine the assessee’s claim on the basis of ‘paid’ and ‘payable’ issue as stated hereinabove. So, the relevant grounds of the Revenue are decided in favour of the assessee. - ITA No. 1951/Mds/12 - - - Dated:- 9-12-2013 - DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the assessee was not owner of the property, in view of section 269UA(f), its contention that the receipts in question had to be declared as income from house property could not be accepted. In Assessing Officer s opinion, the assessee was involved in business of leasing properties. In this manner, he considered the rent paid of ₹ 33,85,467/- and treated balance amount of ₹ 90,02,160/- as business income. Out of this, since the assessee had already offered a sum of ₹ 63,01,512/-, the remaining sum of ₹ 27,00,648/- stood added in the returned income. 6. In assessee s appeal, the CIT(A) has relied upon the order of the tribunal for assessment year 2007-08 holding similar receipt as income from house prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower appellate proceedings, the CIT(A) has taken into consideration the case law of Merilyn shipping Transports vs. Addl. CIT 20 Taxman.com 244) (Vizag SB) and held that the disallowance could only be made qua the amount which was payable as on 31.3.2009 and not qua that stood paid. In light aforesaid, the issue stands restored to the file of the Assessing Officer. 10. Before us, the sole argument of the Revenue is that paid and payable distinction drawn by the CIT(A) whilst issuing aforesaid directions to the Assessing Officer on the basis of Special Bench decision (supra) is no longer sustainable in view of the decision of the Hon'ble Calcutta High Court in the case of CIT vs Md. Jakir Hossain Mondal dated 4.4.2013 in I.T.A.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had held in the case of Merilyn Shipping and Transports vs. Addl. CIT, 16 ITR (Trib) 1, that the provisions of section 40(a)(ia) do apply only to those amounts remained payable by the end of the previous year and the said provisions do not apply to the amounts already paid by the assessee before the close of the relevant previous year. In that way, the order of the Commissioner of Income tax( Appeals) in the present case is conducive to the decision of the Special Bench. The very same view has been upheld by the Hon ble Allahabad High Court in the case of CIT vs. M/s. Vector Shipping Services(P) Ltd. The Hon ble Allahabad High Court, through their judgment dated 9-7-2013 in ITA No.122 of 2013, has held that the decision of the Special Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime, we find that the orders of the Calcutta High Court and the Gujarat High Court are against the assessee. In such circumstances, the rule of Judicial Precedence demands that the view favourable to the assessee must be adopted, as held by the Hon ble Supreme Court in the case of CIT vs. Vegetable Products Ltd., 88 ITR 192. Following the above fundamental rule declared by the Hon ble Supreme Court, we have to follow the judgment of the Hon ble Allahabad High Court, which is in favour of the assessee. Accordingly, we hold that the disallowance under section 40(a)(ia) applies only to those amounts payable and not to those amounts paid . Accordingly, we uphold the order of the Commissioner of Income-tax(Appeals) in the present case. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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