TMI Blog2013 (4) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceeding the Assessing Officer noted that the assessee had incurred the expenditure by way of cash. The cash payments consisted of payments of above ₹ 2500/- and below ₹ 2500/-. The Assessing Officer observed that in respect of cash payments above ₹ 2500 the assessee has maintained proper record of recipients, name and address etc. However, in respect of payments of less than ₹ 2500/- no proper record to identify the payee is either available or produced. In response to query raised by the Assessing Officer, the assessee submitted that such payments made to the winning punters was not their expenditure at all on the basis of method of accounting followed by them. It was further submitted by the assessee that similar disallowances made in the earlier assessment years in case of the assessee was deleted by the Income-tax Appellate Tribunal. The Assessing Officer however did not accept the contention of the assessee. Though the Assessing Officer agreed that the ad hoc disallowances made in the earlier assessment years were deleted by the Income-tax Appellate Tribunal, he however did not follow the order of the Tribunal by observing that dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons. The entire payment was through computerized system. The payment was made to the person holding the winning ticket. The Department has not brought to our notice of any instance of payment when there was no winning ticket. In the circumstances, respectfully following the decision of the coordinate bench in the Assessee's own case we delete the ad hoc disallowance of 10% of the total payment for winning bets of less than 2500/- each. The Appeal of the Assessee on this issue is allowed. 6. Since the issue under consideration is identical to the one decided by the co-ordinate bench in assessee s own case for AY 2007- 08(supra), respectfully following the same, we set aside the order of the CIT(A) and allow this ground of appeal of the assessee. Since the issue in dispute is squarely covered by the decision of the co-ordinate bench as referred to above, we respectfully follow the same and uphold the order of the CIT (A) in deleting the addition on account of ad hoc disallowance made by the Assessing Officer. The grounds raised are dismissed. 8. The next issue raised in ground Nos. 4 and 5 is with regard to deletion of addition on account of disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 117 of the paper book, the learned authorised representative for the assessee submitted the Tribunal has remitted the issue to the file of the Assessing Officer for fresh consideration. Besides making the aforesaid submission the learned authorised representative for the assessee further submitted that the payees i.e., the other race clubs have accounted for the payments made by the assessee in their books of accounts and have declared as income and paid taxes thereon in the financial year 2008-09. In this context, the learned authorised representative for the assessee invited our attention to the certificates issued by the other race clubs which are at pages 132 to 136 of the paper book. 13. The learned authorised representative for the assessee submitted that as per the proviso to sec. 201(1) introduced by the Finance Act, 2012 w.e.f. 1-7-2012 an assessee shall not be deemed an assessee in default if the recipients of such payments declare it as their income in the relevant financial year and pay the tax due on such income. He further submitted that in terms with the proviso to section 201(1) amendment has also been made to sec. 40(a)(ia) by Finance Act, 2012 w.e.f. 1- 4- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 468, the appellant submits that the amendment made to the provisions of the section 40(a)(ia) by the Finance Act, 2012 w.e.f. 1-4-2013 is retrospective in nature and applies to all pending proceedings and therefore the disallowance of ₹ 3,15,33,468 is wholly unsustainable. However, while deciding the appeal vide order dated 12-11- 2012 the CIT (A) has not dealt with the aforesaid additional ground. The assessee has also not raised this issue by either filing an appeal or cross objection before us. Hence, the assessee cannot be permitted to raise the issue at this stage in the appeal filed by the department. That besides taking any decision on the merits of the disallowance u/s 40(a)(ia) at this stage by us would prevent the Assessing Officer from taking any independent decision on this issue for the earlier assessment years which have been remitted to him by the order of the Tribunal. We also cannot accept the contention of the learned authorised representative for the assessee that the Tribunal while deciding the appeal for the earlier assessment year has committed a mistake by not considering the order dated 9-11- 2009 passed by the CIT (A). The orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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