TMI Blog2017 (3) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... covered u/s 40(a)(ia) of the Act. Further, the actual cost and WDV is defined in Section 43 of the Act and provisions of Section 40(a)(ia) of the Act does not override the provisions of Section 43 of the Act. In view of above, we are of the considered opinion that the provisions of section 40(a)(ia) of the Act is not applicable in the instant case. Therefore, there is no question of deducting the TDS on capital expenditure. Short deduction of TDS - Held that:- In case of short deduction the Hon’ble Calcutta High Court in the case of M/s S.K Tekriwal [2012 (12) TMI 873 - CALCUTTA HIGH COURT ] has held that the disallowances cannot be made under the provisions of section 40(a)(ia) of the Act. Thus, we find no reason to interfere in the order of ld CIT(A). Hence, the ground of appeal raised by the revenue is dismissed. - ITA No.856/Kol /2014 & C.O. No.64/Kol/2014 - - - Dated:- 2-3-2017 - Shri N.V.Vasudevan, Judicial Member and Shri Waseem Ahmed, Accountant Member For The Assessee : Shri Anand Kumar Singh, JCIT-DR For The Respondent : Shri S. Jhajharia, FCA ORDER PER Waseem Ahmed, Accountant Member:- This appeal by the Revenue is directed against the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized as work-in-progress as the expense of ₹9,17,076/- was not claimed in revenue account. There is no question of disallowance of the same due to non-deduction of TDS. The Ld. CIT(A) after considering the submission of assessee has deleted the addition made by the AO. Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us. 6. Before us both the parties relied on the orders of Authorities Below as favourable to them. 7. We have heard the rival submissions of both the parties and perused the materials available on record. It is the admitted fact that the assessee has no deducted any TDS on the impugned expenses on the ground that the relevant expenses were capitalized as work in progress. Since the expenses has not been claimed in the profit and loss account, the question of any disallowance under section 40(a)(ia) of the Act does not arise. However the Revenue is disputing the allowability of the above expenses on account of two reasons, firstly, such expenses are not eligible for deduction under the provisions of section 40(a)(ia) of the Act, secondly, the relief has been given to the assessee on the basis of additional evidences which were admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 40(a)(ia) of the Act is not applicable in the instant case. Therefore, there is no question of deducting the TDS on capital expenditure. We also disagree with the allegation of the Revenue that the relief has been given on the basis of additional evidences. It is because we find that at the time of assessment, the assessee has filed written submission which has been duly recorded by the AO in his assessment order. Moreover, the ld DR has not brought anything on record contrary to the finding of ld CIT(A). Hence, the issue raised by the Revenue is dismissed. 8. The next issue raised by the Revenue is that ld CIT(A) erred in deleting the addition of ₹ 49,05,549/- made by the AO on account of short deduction of TDS. 9. The assessee, in the year under consideration has incurred an expense of ₹ 1,93,20,793.00 towards labour charges, contractors, technical and professional charges. The assessee was required to deduct the taxes of ₹ 4,85,839.00 but in actuality it deducted TDS of ₹ 3,62,467.00 only. Therefore, short deduction of TDS for ₹ 1,23,372/- was made by the assessee. Accordingly, the AO has disallowed proportionate expenses of ₹ 49,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts falling under various TDS provisions, assessee can be declared to be an assessee in default u/s. 201 of Act and no disallowance can be made by invoking provisions of section 40(a)(ia) of Act. Accordingly, order of CIT (A) allowing claim of assessee was confirmed and this issue of revenue s appeal was dismissed. No substantial question of law was involved in this case. Appeal was dismissed. Expenses are not liable to be disallowed u/s 40(a)(ia) on account of short deduction of tax at source The principles laid down by the Hon ble jurisdictional High Court of Calcutta in the case of M/s S.K Tekriwal (supra) are exactly identical to the facts of the present case. In the case on hand the disallowance was made on account of short deduction. In case of short deduction the Hon ble Calcutta High Court has held that the disallowances cannot be made under the provisions of section 40(a)(ia) of the Act. Thus, we find no reason to interfere in the order of ld CIT(A). Hence, the ground of appeal raised by the revenue is dismissed. 13. Next issue raised by Revenue in this appeal is that Ld. CIT(A) erred in admitting the additional evidence against the provision of Sec.46A(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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