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Ved Prakash Samariya Versus A.C.I.T., Circle-5, Jaipur

2016 (4) TMI 518 - ITAT JAIPUR

TDS liability - disallowance u/s 40(a)(ia) - Held that:- The recipient has already paid tax and evidence has been produced before the Assessing Officer as the recipient had claimed refund by filing the return. There is no revenue loss. - Decided in favour of assessee - ITA No. 116/JP/2015 - Dated:- 11-3-2016 - SHRI MUKUL K. SHRAWAT, JM & SHRI T.R.MEENA, AM For The Assessee : Shri D.P. Khandelwal (CA) For The Revenue : Shri Raj Mehra (JCIT) ORDER PER T.R. MEENA, A.M This is an appeal filed by .....

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clared defaulter u/s 201(1 A) of the Act, disallowance of expenses done without making TDS u/s 40(a)(ia) of the Act, could not be made. Therefore the disallowances to be deleted. 3. That as per submissions made to the learned assessing authority and again the factual and legal submissions made to the learned CIT (Appeals II), Jaipur and further submissions to be made at the time of hearing of the appeal, it will be far clear that facts and legal position are in favor the assessee appellant, sinc .....

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bricants. He filed his return for year under consideration on 30/09/2008 declaring total income of ₹ 13,24,370/-. The case was scrutinized U/s 143(3) of the Act and order was passed on 29/12/2010 by the Assessing Officer. Thereafter notice U/s 154 of the Act was issued by the Assessing Officer and it was found by him that the assessee had paid house rent and no TDS has been deducted U/s 194(I) of the Act on ₹ 1,31,280/-. Therefore, these payments are not allowable U/s 40(a)(ia) of th .....

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uld not be deducted because the landlord insisted so, since no tax was payable on his total income. The appellant has submitted a copy of the acknowledgment of the return of income of the appellant which shows that refund was due. The second proviso to Sec 40(a)(ia) has been introduced by the Finance Act, 2012 and is effective from 1/4/2013. Therefore, it is not applicable to this assessment year. Also, the proviso to Sec 201(1) has been introduced by the Finance Act, 2012 and is effective from .....

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n of income. That as per return filed by Sh. Prabhu Dayal, A.Y. 2008-09 with PAN ACQPK2217F on 25/2/2009, he was entitled for a refund of ₹ 370, copy of acknowledgement and computation of income were submitted to the Assessing Officer and has been filed with the present appeal. He further relied on the decision of Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CIT 293 ITR page 226, Hon ble Rajasthan High Court decision in the case of CIT Vs. Rathi Gum .....

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wherein the same judgment has been delivered relying on the above stated Apex Court decision given in the case of Hindustan Coca Cola Beverages Pvt. Ltd. He further submitted that in addition to these cases Honorable ITAT Agra Bench in the case of Rajeev Kumar Agarwal Vs. Addl. Commissioner of Income Tax (2014) 34 ITR (Trib) 479 (Agra) has held that unless the assessee is not declared defaulter as per the first proviso to section 201(tA) which was introduced by the Finance Act 2012 then the sec .....

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had taken into account income embedded in the payments and paid due taxes thereon and filed the income tax returns in accordance with the law. The assessee could not be punished for non-deduction of tax at source when the corresponding income was duly brought to tax. The insertion of the second proviso to section 40(a)(ia)was declaratory and curative in nature and it has retrospective effect from April 1,2005. Further Hon. lncome Tax Appellate Tribunal. Mumbai-T Bench.ITA No. 1056/Mu m/2 011 A.Y .....

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h Kumar Shett (Income Tax Appeal No. 590/2013) on 15th July 2014. This view is also supported by the Judgment delivered by the Gujarat High Court in the case of Om Prakash R.Choudhary in the Tax Appeal No.412/2013. He has further submitted that in addition to above the decision being given by Hon,High Court of Delhi in case of Commissioner of Income Tax-I V/s. Ansal Land Mark Township (P)Ltd. on 26.08.2015 (ref. TAXMAN Vol.234 page 825) clearly says that Second Proviso to section 40(a)(ia) is de .....

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