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2016 (4) TMI 751 - ITAT MUMBAI

2016 (4) TMI 751 - ITAT MUMBAI - TMI - TDS u/s 194H - non deduction of TDS on commissioner paid - Held that:- The case of the assessee is squarely covered by the decision of Ansal Land Mark Township Pvt. Vs CIT [2015 (9) TMI 79 - DELHI HIGH COURT ] wherein it has been held that The second proviso to section 40(a)(ia) of the Act is declaratory and curative in nature and has retrospective effect from 1st April, 2005. Assessing Officer is directed to examine the claim of the assessee whether the sa .....

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als was actually received. The AO added the same as bogus purchase without carrying any further verification especially when he accepted the submission of the assessee M/S Vinav Trading Co and rejecting the plea for the other without bringing on records any other independent evidence such as specific confirmation from M/S Mahalaxmi and cross examination by the assessee. In our opinion the assessee had explained the purchase made from Mahalaxmi Corporation with all the supporting records which pr .....

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22, Mumbai (Hereinafter called as the CIT(A)) for assessment year 2010-11. The assessee has raised the following grounds of appeal: 1. On the facts and circumstances of the case and in law, the Ld. CIT-(A) has erred in confirming action of Ld. AO of adding commission of ₹ 9,08,111/- u/s 40(a)(ia). 2. On the facts and circumstances of the case and in law, the Ld. CIT-(A) has erred in confirming action of Ld AO of disallowing purchases of ₹ 4,23,875/- treating them as bogus. 2. The fac .....

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n deduction of TDS on commissioner paid and second ₹ 4,23,875/- for bogus hawala purchases of LDO. 3. The issue raised in the first ground of appeal is against the confirmation of additions of ₹ 9,08,111/- by the CIT(A) as made by the AO u/s 40(a)(ia) of the Act for non deduction of TDS. The Ld AO added the commission of ₹ 9,08,111/- for not complying with the provisions of section 194H of the Act as stated in para 4 of the assessment order which was also confirmed by the CIT(A .....

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k Township Pvt. Vs CIT ITA No 160/2015 dated 26.08.2015. The Ld AR argued that the said disallowance was uncalled for in view of the fact the assessee filed before the lower authorities the necessary proof of the said payment being taxed in the hands of payees and also the by filing certificate of chartered accountant to that effect the said payments were duly taxed and finally prayed for the deletion of same. Per Contra the ld DR relied on the orders of authorities below. 3.2. We have heard the .....

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n accordance with the provisions of this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident- (i) has furnished his return of income under section 139; (ii) has taken into account such sum for computing income in such return of income; and (iii) has paid the tax due on the income declared by him in such return of income, and the person furnishes a certificate to this eff .....

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ed 26.08.2015 wherein it has been held that The second proviso to section 40(a)(ia) of the Act is declaratory and curative in nature and has retrospective effect from 1st April, 2005 by upholding the decision of Agra Bench in the case of Rajiv Kumar Aggarwal Vs ACIT. Further we find that similar issue has been decided by the Tribunal in the assessee s own case in the case of ITA No 2878/Mum/2013 AY 2009-10 dated 26.10.2015. The relevant para is extracted below:- "2.1. We have considered the .....

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2003 is declaratory and curative in nature with retrospective effect from 01/04/2005, inserted by Finance (No.2) Act 2004, thus, the Assessing Officer is directed to examine the claim of the assessee whether the said amount has been included as income of the payee. Thus, this ground is allowed for statistical purposes." We therefore respectfully following the decisions of the Delhi High Court and of the coordinate bench in assessee s own case, set aside the issue to the file of the AO to ex .....

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scandal. The VAT department of Govt. of Maharashtra unearthed the said scandal following investigations into the default of VAT set off credits and all these hawala companies admitted to have indulged into hawala transactions and then this information was passed on to the investigation wing of the departments following which the case of the assessee was selected for scrutiny. The AO after rejecting the reply dated 27.02.2013 of the assessee partly made addition of ₹ 4,23,875/- in respect o .....

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ght and other records and mere payment by cheque was not sufficient proof .Moreover the said company was not a regular supplier to the assessee 4.2. The Ld.AR for the assessee submitted that the whole addition was based upon the suspicion and conjectures on the basis of information by the VAT department , Govt of Maharashtra. The counsel submitted that the payment was made by cheque which was acknowledged by the supplier, the materials was received which was duly reflected in the stock register, .....

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eleted. The ld Dr on the other hand relied on the order of lower authorities. 4.3. We have considered the rival submissions and perused the materials on records. We find from the order of authorities below that VAT departments conducted search on various dealers and found that they were engaged in hawala transactions such giving bills without supplying materials and the various hawala dealers had admitted to have supplied the bills to various companies including the assessee. During the course o .....

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