TMI Blog2014 (9) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Bench in the case of Merilyn Shipping & Transports.[2012 (4) TMI 290 - ITAT VISAKHAPATNAM]. Identical issue was considered by the ITAT “A” Bench in the case of Amit Naresh Sinha (2014 (9) TMI 1000 - ITAT PANAJI – wherein one of us is a party) wherein the Bench had taken the view that if an amount is paid, disallowance under section 40(a)(ia) is not permissible - Decided in favour of assessee. - ITA No. 13/Mum/2013 - - - Dated:- 17-9-2014 - SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER For the Petitioner : Shri N. Padmanaban For the Respondent : Shri Arun Sahu ORDER PER D. MANMOHAN, V.P. This is an appeal filed at the instance of the Revenue and it pertains to AY 2009-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther party which will involve unnecessary paper work. 4. The AO was of the opinion that provisions of section 40(a)(ia) are applicable in the instant case since assessee has not deducted tax at source and accordingly worked out the disallowable figure at ₹ 36,57,581/-. 5. Aggrieved, assessee contended before the CIT(A) that in respect of deduction of tax at source the AO relied more on the rules than the circumstances of the transactions and in the peculiar circumstance of the case section 40(a)(ia) cannot be invoked. During the course of hearing assessee submitted that section 40(a)(ia) can be invoked only to the extent of expenditure payable as on the Balance Sheet date and not for payment already made. In the alternative it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be taken in which event provisions of section 40(a)(ia) should not be invoked. He has also raised certain alternative contentions which need not be considered at this stage. 8. On the other hand, the learned CIT-DR relied upon the order passed by the AO. 9. Identical issue was considered by the ITAT A Bench in the case of Amit Naresh Sinha (ITA No. 4154/Mum/2013 dated 10.09.2014 wherein one of us is a party) wherein the Bench had taken the view that if an amount is paid, disallowance under section 40(a)(ia) is not permissible. Relevant observations of the Tribunal are extracted for immediate reference:- 4. Before us, Departmental Representative(DR) stated that order of the Special Bench delivered in the case of Merily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unless the decision of Marilyn Shipping Transport (supra) is reversed by the Court, it is binding on all the benches of the Tribunal. We find that Hon'ble Court has held that judicial discipline mandates that the decision of the special bench has to be followed by other benches. As on today, the stay order granted by the Hon ble Court has been vacated and the order of the special bench is binding on other benches of the Tribunal. Therefore, respectfully following the same, we hold that the FAA was justified in following the order of Marilyn Shipping Transport (supra). Considering the facts of the case and the clarification issued by the Hon'ble Andhra Pradesh High Court on 24.06.2014 in the case of Janapriya Engineers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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