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2016 (3) TMI 583 - ITAT KOLKATA

2016 (3) TMI 583 - ITAT KOLKATA - TMI - TDS u/s 194C - Disallowance made u/s. 40(a)(ia) - non tds on freight charges - Held that:- We find that the assessee had only made purchase of goods and there was no freight charges incurred by the assessee on these purchases, which is evident from the ledger account as filed at pages 33-39 of the paper book. We also verified the sample invoices, that are kept at pages 40-47 of the paper book containing the freight charges and the details of the freight ch .....

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ame made u/s. 40(a)(ia) in the light of applicability of second proviso to section 40(a)(ia) as mentioned herein above and in the light of said decision of the Hon’ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd (2015 (9) TMI 79 - DELHI HIGH COURT). The assessee is at liberty to adduce fresh evidences, if any, to substantiate its contentions. - Decided in favour of assessee by way of remand

Disallowance of interest - Held that:- Considering balance sheet and the b .....

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I.T.A No. 721/Kol/2013 - Dated:- 3-2-2016 - Shri Mahavir Singh, Judicial Member, and Shri M. Balaganesh, Accountant Member For The Appellant : Shri S.M Surana, Advocate, ld.AR For The Respondent : Smt. Sucheta Bandhopadhyay, JCIT, ld.Sr.DR ORDER SHRI M.BALAGANESH, AM This appeal of the assessee arises out of the order of the Learned CIT(A), Durgapur in Appeal No. 426/CIT(A)/ASL/Wd-3(2)/Purulia/2010-11 dated 24-01- 2013 for the Asst Year 2008-09 against the order of assessment framed by the Lear .....

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of the said addition is as below:- 1) Shri Gurudutt Industries(Transport Agent) ₹ 6,39,883/- 2a) M/s. Sangam Transport ₹ 32,440/- b) M/s. Ganpati Road Lines Rs. 25,000/- ₹ 57,440/- 3) Shri Gautom Majee (Transport Agent) ₹ 3,94,045/- 4) Against Shri Gautam Majee ₹ 1,96,000/- Total Rs.12,87,328/- 4. This action of the ld.AO in making addition was confirmed by the ld.CIT(A) on 1st appeal. Aggrieved, the assessee is in appeal before us on the following ground:- 1. That .....

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per the terms of the contract with the said supplier, the freight is to borne by the said supplier and in case if the same is is paid by the assessee, the same would be reduced from the amounts payable by the assessee towards purchase of goods. Accordingly, the assessee as and when the freight charges has been paid by him on behalf of the supplier, chose to debit the supplier s ledger account and payment for purchase of goods is made only for the balance portion i.e. after deducting the freight .....

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s evident from the ledger account as filed at pages 33-39 of the paper book. We also verified the sample invoices, that are kept at pages 40-47 of the paper book containing the freight charges and the details of the freight charges payable by the assessee on behalf of the said supplier. Hence, we are satisfied that the provisions of section 194C are not at all attracted to the present facts of the case and consequently, the disallowances/additions made u/s. 40(a)(ia) is not warranted. 7. In resp .....

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i Road Lines, which are extracted in page 7 of the impugned assessment order. We find that the provisions of section 194C are not at all applicable in the facts of the present case. Hence, the disallowance made u/s. 40(a)(ia) of the Act in respect of the above said parties is not also warranted. 10. In respect of freight charges paid to Shri Gautom Majee amounting to ₹ 3,94,045/-, the ld.AR pleaded that the same may be set aside to the file of the ld.AO for verification in the hands of the .....

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on raised before their Lordships and their decision rendered thereon is as under:- Question: The issue that arose before the High Court was- Whether the second proviso to Section 40(a)(ia)( inserted by the Finance Act, 2012), which states that TDS shall be deemed to be deducted and paid by a deductor if resident recipient has disclosed the amount in his return of income and paid tax thereon, is retrospective in nature or not ? Held : Section 40(a)(ia) was introduced by the Finance (No.2) Act, 20 .....

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bedded in such amount. The penalty for tax withholding lapse per se is separately provided under section 271C, and, therefore, section 40(a)(ia) isn t attracted to the same. Hence, an assessee could not be penalized under section 40(a)(ia) when there was no loss to revenue. The Agra Tribunal in the case of Rajiv Kumar Agarwal v. ACIT [2014] 45 taxmann. com 555 (Agra-Trib) had held that the second proviso to Section 40(a)(ia) is declaratory and curative in nature and has retrospective effect from .....

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Land Mark Township (P) Ltd (supra), we deem it fit and appropriate to set aside the issue to the file of the ld.AO to decide the same made u/s. 40(a)(ia) in the light of applicability of second proviso to section 40(a)(ia) as mentioned herein above and in the light of said decision of the Hon ble Delhi High Court in the case of Ansal Land Mark Township (P) Ltd (supra). The assessee is at liberty to adduce fresh evidences, if any, to substantiate its contentions. Accordingly, this portion of the .....

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expenditure towards freight charges was claimed by the assessee amounting to ₹ 1,96,000/- warranting the compliance of TDS provision at his side. Hence, the disallowance made u/s. 40(a)(ia) of the Act thereon is not warranted. Accordingly, ground no.1 raised by the assessee in this appeal is allowed for statistical purpose. 13. Next ground is with regard to disallowance made u/s. 40(a)(ia) amounting to ₹ 67,300/- during the course of hearing before us the ld.AR stated that this issu .....

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