TMI Blog2016 (11) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... In this connection, we are inclined to restore the matter back to the file of AO for fresh adjudication as per law with a direction to check whether the payment to the party concerned has been made in contravention to the provision of Sec. 40A(3) of the Act after providing reasonable opportunity of being heard to assessee. - ITA No. 2734/Kol/2013 - - - Dated:- 5-10-2016 - Shri Waseem Ahmed, Accountant Member And Shri S. S. Viswanethra Ravi, Judicial Member By Appellant : Sh. Md. Ghayas Uddin, JCIT-SR-DR By Respondent : Shri Sanjay Bhattacharya, FCA ORDER Per Waseem Ahmed, Accountant Member:- This appeal by the Revenue is against the order of Commissioner of Income Tax (Appeals)-XIX, Kolkata dated 06.09.2013. Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income dated 23.09.2009 declaring total income of ₹8,97,197/- comprising of business income. Thereafter the case was selected for scrutiny as per action plan and subsequently notice u/s 143(2) r.ws. 142(1) was issued upon the assessee. The assessment was framed u/s 143(3) of the Act at a total income of ₹ 2,02,04,217.00 by disallowing certain expenses which are detailed in the grounds of appeal of Revenue as under. 3. The common issue raised by Revenue in this appeal is that Ld. CIT(A) erred in deleting the addition made by Assessing Officer on account of non deduction of Tax Deducted at Source (TDS for short) u/s 40(a)(ia) of the Act for the machine hire charges and transport charges. The assessee, for the year u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, I find that the AO has hastily concluded that the hiring charges are of contractual in nature and decided the issue to be covered u/s. 194I of the Act without finding out the factual position in the matter. On the other hand the contention of the appellant lends much force on the issue that the payments made for hiring the machineries were not in the nature of contractual payments when there was no agreement of any sort to the effect. The facts of the case surrounding the appellant s case needed a deeper probe and understanding by the AO to come to a judicious decision. The submissions of the appellant along with the reasoning that the impugned items of expenditure form part of the trading account rather than the P L A/c lend much force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption in the matter will not justify his action which needs to be corroborated with conclusive proof and reasoning to make out his case. In view of this the addition made by the AO to the tune of ₹1,90,32,520/- on account of disallowance made u/s. 40(a)(ia) read with section 194I treating the amount as rental payment is hereby deleted. The ld. CIT(A) also deleted the addition made by the AO for ₹ 6.10 lakhs for the reasons cited above. Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us. 6. Before us Ld. DR submitted that even oral agreements are also contracts for the purpose of the provisions of section 194C of the Act therefore the provision of TDS are very much attracted to the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable on record. At the outset, we find that the Amendment in Sec. 201(1) of the Act has been brought by the Finance Act, 2012 which is curative in nature. Therefore, it should be effective from the retrospective date. In this connection, we rely on the order of this Hon ble Tribunal in the case of Santosh Kumar Kedia vs. ITO in ITA No.1905/Kol/2014 dated 04.03.2015 and the relevant operative portion is reproduced below:- From the above, judgment of the Hon'ble jurisdictional High Court in the case of Peerlees Hospitax Hospital and Research Centre Ltd. Kolkata (supra) it is clear that Hon'ble jurisdictional High Court has not considered that the second proviso to Sec. 40(a)(ia) of the Act as inserted by the Finance Act, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as deciding the question as to whether the second proviso is curative and clarificatory of the law from its inception. The question whether the second proviso is curative and clarificatory did not arise for consideration in Crescent s case, was not debated before the Hon'ble Calcutta High Court. Hon'ble Supreme Court in the case of In State of Haryana v. Ranbir, (2006) 5 SCC 167, has discussed the concept of the biter dictum thus: A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known..Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments ..... X X X X Extracts X X X X X X X X Extracts X X X X
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