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TMI Blog2014 (12) TMI 1200X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee electronically filed its return of income for A.Y. 2010-11 on 06-02-2012 declaring total income of Rs. 81,51,000/-. The case was selected for scrutiny and thereafter the assessment was framed u/s. 143(3) vide order dated 20-03-2013 and the total income was determined at Rs. 1,23,11,379/-. Aggrieved by the order of AO, Assessee carried the matter before Ld. CIT(A) who vide order dated 23-05-2014 dismissed the appeal of the assesssee. Aggrieved by the order of Ld. CIT(A), Assessee is now in appeal before us and has raised the following grounds. "Appellant being aggrieved by the order dated 23-05-2014 passed by the Ld. CIT(A)-I, Baroda (herein after referred to as Ld. assessing Officer) presents this appeal against the same on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. It is submitted that it may be held so now. This ground of appeal of the appellant is of general nature and the same is dealt with ground of appeal no. 2. The second ground of appeal of the appellant is that the Ld. Assessing Officer has erred in making disallowance of interest paid to NBFC of Rs. 41,60,384/- due to non deduction of TDS. It is submitted that he has erred on facts and in law. With regard to these two grounds of appeal, the appellant in its submission dated 20/05/2014 has stated that it was argued before the AO during the course of assessment proceedings that disallowance was not called for in view of the decision of ITAT Vishakhapatnam, in the case of M/s. Merilyn Shipping & Transport vs. CTT -Range 1 pronounced on 09/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly the word "payable", therefore, the provision should not be applied on "paid" services. As per the appellant furthermore, the payee company must have paid the due tax on the interest income received by it, therefore, there is no loss of revenue aIso in this case. As per the appellant hence, in equity also the addition made by the assessing officer is not justified. 5.2 But the above entire submission of the appellant is not found to be tenable it is mentioned that the Hon'ble High Court of Gujarat in the case of CIT vs Sikandarkhan N. Tunvar 33 taxmann.com 133 has held that section 40(a)(ia) would cover not only the amounts which are payable as on 31st March of a particular year but also which are payable at any time during the y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per the Hon'ble Court merely because, accounts are closed on the date and the computation of profit and loss is to be judged with reference to such date, does not mean that whether an amount is payable or not must be ascertained on the strength of the position emerging on 31st March. Thus, finally the Hon'ble High Court of Gujarat has held that section 40(a)(ia) would cover not only the amounts which are payable as on 31st March of a particular year but also which are payable at any time during the year. In view of is decision of Hon'ble High Court of Gujarat it is held that the amount for Rs. 41,60,384/- is to able to be disallowed u/s. 40(a)(ia) of the IT Act as the appellant has failed to deduct the tax at source during the year und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Cococola Beverage vs. CIT (2007) 293 ITR 226 (SC). Ld. AR further submitted that though second proviso to section 40(a)(ia) was inserted w.e.f. 01-04-2013, the proviso has to be given retrospective effect and for which he also placed reliance on the decision in the case of Rajiv Kr. Agrawal vs. Additional CIT (Agra) (2014) 40 CCH 304 (Agra Trib). Ld. DR on the other hand supported the order of AO and Ld. CIT(A). 7. We have heard the rival submissions and perused the material on record. It is an undisputed fact that Assessee has paid interest to India Bulls and no TDS was deducted while making the payment. We find that the Co-ordinate Bench in the case of Rajiv Kr. Agarwal vs. ACIT (supra) has held as under:- Section 40 of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the Assessee has not deducted TDS but payee has paid the taxes needs to be re-examined by the A.O in the light of the aforesaid decision of Agra Tribunal and we therefore set aside the issue to the file of A.O for him to decide the issue in the light of decision of Agra Tribunal and in accordance with law. Needless to state, that A.O shall grant adequate opportunity of hearing to the Asseasee. The assessee is also directed to promptly furnish the required details as called for by the AO. We thus allow this ground of Assessee for statistical purposes.
9. In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in open court on the date mentioned hereinabove at caption page X X X X Extracts X X X X X X X X Extracts X X X X
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