TMI Blog2017 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ove that the payee had included the aforesaid payment in its income and paid taxes on the same also. Since we agree with the Ld. Counsel of the assessee that these evidences go to the root of the matter and are necessary for the adjudication of the issue in the present appeal, we therefore admit the same and further restore the issue to the file of the A.O to examine the issue afresh in the light of the proposition as laid down by the Hon’ble Delhi High Court in Ansal Land Mark Township (P) (Ltd)(2015 (9) TMI 79 - DELHI HIGH COURT). Appeal of the assessee is allowed for statistical purposes. - ITA No.883/Chd/2015 - - - Dated:- 6-4-2017 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER, AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER For The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be taken at the time of hearing, the appeal may please be allowed and justice rendered. Total payment made is ₹ 36,50,133/- which is disallowed. 4. The only issue in the present appeal is against the action of the Ld. CIT(A) in upholding the addition of ₹ 36,50,133/- made u/s 40(a)(ia) of the Act. 5. Brief facts relevant to the issue are that the assessee had claimed display rights payment of ₹ 36,50,133/- which as per the assessee were paid to M/s H.P.Bus Stands Management and Development Authority, Shimla for obtaining display rights which was allotted through tender. The A.O disallowed the same u/s 40(a)(ia) of the Act since no tax had been deducted on the same by the assessee. Ld. CIT(A), in appellate pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment amounting to ₹ 36,50,133/- made to M/s H.P.Bus Stands Management and Development Authority, Shimla. The sole contention raised by the LD. Counsel of the assessee is that no disallowance is permissible u/s 40(a)(ia) since the payee i.e M/s H.P.Bus Stands Management and Development Authority, Shimla has included the said payment in its income and paid taxes on the same. The Ld. Counsel has further adduced the following evidences before us to substantiate its aforesaid claim. Certificate from M/S H.P. Bus Stands Management and Development Authority, Shimla regarding receipts from the assessee on account of advertisement rights during the year and further certifying that the said amount was duly accounted for in its books. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar, the Court would like to refer to para 9 of the said order which reads as under: On a conceptual note, primary justification for such a disallowance is that such a denial of deduction is to compensate for the loss of revenue by corresponding income not being taken into account in computation of taxable income in the hands of the recipients of the payments. Such a policy motivated deduction restrictions should, therefore, not come into play when an assessee is able to establish that there is no actual loss of revenue. This disallowance does deincentivize not deducting tax at source, when such tax deductions are due, but, so far as the legal framework is concerned, this provision is not for the purpose of penalizing for the tax ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due hardships even in cases in which the assessee's tax withholding lapses did not result in any loss to the exchequer. Now that the legislature has been compassionate enough to cure these shortcomings of provision, and thus obviate the unintended hardships, such an amendment in law, in view of the well settled legal position to the effect that a curative amendment to avoid unintended consequences is to be treated as retrospective in nature even though it may not state so specifically, the insertion of second proviso must be given retrospective effect from the point of time when the related legal provision was introduced. In view of these discussions, as also for the detailed reasons set out earlier, we cannot subscribe to the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that these evidences go to the root of the matter and are necessary for the adjudication of the issue in the present appeal, we therefore admit the same and further restore the issue to the file of the A.O to examine the issue afresh in the light of the proposition as laid down by the Hon ble Delhi High Court in Ansal Land Mark Township (P) (Ltd)(supra) and in the light of evidences produced by the assessee in this regard. We may add that the assessee be given due opportunity of hearing and is free to adduce all evidences which it wishes to rely upon to substantiate its claim. The A.O. is directed to decide the matter thereafter in accordance with law. 11. In effect, the appeal of the assessee is allowed for statistical purposes. Or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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