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2016 (4) TMI 297 - ITAT MUMBAI

2016 (4) TMI 297 - ITAT MUMBAI - TMI - Disallowance u/s 40(a)(ia) - TDS u/s.194C - Held that:- No payment was made to the transporter by the assessee and thus the assessee is not liable to pay/ deduct the TDS is convincing, hence the present appeal on this ground is accepted. - Decided in favour of assessee. - ITA No. 77/Mum/2013 - Dated:- 15-1-2016 - N. K. BIllaiya, AM And Pawan Singh, JM For the Petitioner : Shri K. Shivaram & Miss Neelam Jadhav For the Respondent : Shri Abani Kanta Nayak .....

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ome, Balance Sheet and Profit & Loss A/c. 2. The learned CIT(A) erred in not allowing ₹ 46,644/- treating it as prior period expenses without appreciating that the expenditure was wholly and exclusively incurred for business purpose during the relevant year. 3. The C IT(A) erred in not admitting the additional evidence filed under Rule 46A of the Income Tax Rules without appreciating that the same ought to party (agent) was not responding to the notice u/s 133(6) of the Act. II. Disall .....

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and not amount 'paid' could be disallowed u/s. 40(a)(ia) of the Act. 6. The lamed CIT(A) also failed to appreciate that the payee are assessed to tax an already paid taxes on the said amount and therefore there should not be any disallowance, the aforesaid view is also supported by the amendment made by the Finance Act 2012 inserting proviso to section 40(a)(ia) of the Act which is clarificatory in nature and ought to be applied retrospectively. 7. The appellant craves leave to add, amen .....

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n including disallowance u/s 40(a)(ia) in assessment order dated 30.11.2011, against which an appeal was filed before the CIT(A) including disallowance u/s 40A(ia) for the amount of ₹ 27,69,384/-. 3. The CIT(A) dismissed the appeal of the assessee on the ground of disallowance u/s 40(a)(ia) in the impugned order dated 02.011.2012 against which the present appeal is filed before us. 4. We have heard the Authorized Representative (AR) of the assessee and Departmental Representative (DR) of t .....

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rove the identity of the parties and genuineness of the transaction. The assessee provided his PAN number and address of Rajesh Singh and shown the Ledger Account about the nature of transaction on which the commission to be paid and date of payment and TDS deducted, the assessee further explained that commission was paid through Account Payee Cheque and even Rajesh Singh was communicated to compliance the notice of Income tax Department and copy of material forwarded to the party were placed on .....

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as made through banking channel. The order of CIT(A) further revealed that assessee filed an application for additional evidence u/s 46A and the same was dismissed by observing that appellate authority are vested with the discretion to admit or reject the application for production of additional evidence. 7. The Ld AR for the assessee argued that the Ld. CIT(A) has not allowed the application for leading additional evidence and mechanically rejected the same, otherwise the assessee could prove t .....

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or discussed it in its order whether the cheque through which the payment was made was clear in the account of assessee or not ? 10. The assessee seeks opportunity to lead the additional evidence before the CIT(A) to prove the identity of the person and genuineness of the transaction but the same was rejected in a mechanical way without giving any reason, hence, we are of the considered opinion that this issue be remanded to the file of AO, the matter is restored and send to the files of the AO. .....

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cals Ltd. of ₹ 21,68,662/- ,(2) Neno Marketing & Trading Co. of ₹ 1,26,940/- (3) Umya India Pvt. Limited of ₹ 3,75,742/- & (4) Reliance Industries Limited of ₹ 80,040/- totaling of ₹ 27,69,384/- in respect of which the assessee was asked to specify if TDS has been deducted in respect of the said amount or not and the assessee vide its reply dated 07.11.2011, explained that the freight & octroi charges were separately charged in the purchase invoice by th .....

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person responsible for paying any sum to any resident for carrying out any work in pursuance of contract between the contractor and specified person shall deduct in context on income comprised and the assessee had not deducted tax on reimbursement on freight charges and the same is not allowable as expenditure in view of the provision of section 40(a)(ia). 12. The CIT(A) while dealing with this ground has observed that assessee company has made disbursement of expenses on account of freight and .....

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ssessee clearly shown that it was made only to avoid TDS provision and that no doubt that payment made to the transporter is made by assessee-company nor directly but through supplier and the provision of section 194C applicable on freight to pay basis irrespective of actual payment and that the provision of section 40(a)(ia) are clearly applicable. 13. The AR of the assessee is argued that the AO well as CIT(A) misconceived by considering the case of assessee and argued that assessee-company ha .....

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