TMI Blog2016 (2) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2012, passed by the ld. CIT(A), Jammu. The department has taken the following grounds: 1 On the facts and circumstances whether the ld. CIT(A) was right in deleting the addition made on account of disallowance of deduction u/s 40(a)(ia) of the Income Tax Act, 1961 for non deduction of TDS as per the provisions of section 194C of the Act. 2. On the facts and circumstances whether the ld. CIT(A) was right in not appreciating the fact that the object of section 40(a)(ia) is to ensure that the TDS provisions are scrupulously implemented without any default and that if the interpretation is assigned to the term payable then the object with which section 40(a)(ia) was inserted would be frustrated. 3. On the facts and circumstances whether the ld. CIT(A) was right in deleting the addition made on account of disallowance of deduction u/s 40(a)(ia) of the Income Tax Act, 1961 for non deduction of TDS as per the provisions of section 194C of the Act, when the Hon ble High Court of P H in the case of Rakesh Kumar Co. vs. Union of India (2010) 325 ITR 35 has confirmed the disallowance made u/s 40(a)(ia) of the Act. 4. On the facts and circumstances whether the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT allowed the Department s appeal, holding as follows: 28. As regard to the appeal filed by the Revenue, we are of the view that as we have discussed in the appeal filed by the assessee i.e. I.T.A. No. 358(Asr)/2012 and held that the Hon'ble Calcutta High Court in the case of Crescent Export Syndicate ( supra ), decided on 3rd April, 2013, has held that 'the majority views expressed in the case of Merilyn Shipping Transporters ( supra ) are not acceptable and decided the issue in favour of the Revenue. Learned First Appellate Authority has respectfully followed the decision of I.T.A.T.(SB), Vishakhapatnam, in the case of Merilyn Shipping Transporters ( supra ) and given partly relief to the assessee. In para 4.5, it is held that out of total disallowance of ₹ 6,04,40,918/-, an amount of ₹ 4,16,53,215/- has been paid during the year and an amount of ₹ 17,800/- in respect of one Sh. Faooq Ahmed Dar, to be excluded as no TDS was to be made on this. Thus, remaining amount of ₹ 1,87,87,703/- is payable at the end of the year and has to be disallowed. 29. As discussed above, Hon'ble Calcutta High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue and upheld the decision of Hon'ble ITAT, Amritsar by not admitting the appeal of Revenue by holding that We regret our inability to accept that any question of law much less a substantive question of law would immerge for admission of the appeal particularly when there was hardly an loss of revenue. Under the circumstances this application of 254 lies before the Hon'ble Bench to adjudicate the appeal of the Revenue afresh after duly considering the judgment of Hon'ble High Court which decision is binding because it is a decision of jurisdictional High Court and jurisdictional High Court has upheld the decision of the Hon'ble ITAT. The decision of the Hon'ble ITAT in this case was that if expenditure has already been paid during the year and is not payable at the year then the provisions of sec 40(a)(ia) of the Income Tax Act , 1961 are not applicable. In this case the Hon'ble Court has confirmed the decision of Hon'ble ITAT and its decision in relying the cases of Jaipur Vidyut Vitran Nigam Ltd. VS. Deputy Commissioner of Income Tax (123 TTJ (JP)888(2009) M/s. Teja Construction vs. Asstt . Commissioner of Income Tax (129TTJ (Hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jamkash Vehicleades Pvt. Ltd., Jammu , vide order dated 20.02.2013, in ITA no.11/2013, dismissed the Department s appeal against the ITAT order dated 07.08.2012, which was followed by the ld. CIT(A) in the present case. The Hon ble High Court held as follows: 4. The Tribunal has placed reliance on the order passed by Jaipur, Hyderbad and Vishakapatnam Benches. In that regard, reliance has been placed on the order of the Tribunal rendered in the case of Vidyut Vitran Nigam Ltd. v. DCIT (2009) 123 TTJ 888 and ITAT, Hyderabad Bench in the case of M/s. Teja Constructions v. ACIT in ITA No. 30/HYD/2009, on the identical issue. Likewise a reference has been invited to the judgment of the Special Bench, Vishakapatnam of the Tribunal in the case of M/s. Merilyn Shipping and Transports, Vishakapatnam v. Additional Commissioner of Income Tax (ITA No. 477/Viz/2008 decided on 29.03.2012). 5. At the hearing, we have asked learned counsel for the Revenue about the status of the aforesaid orders passed by various Benches of the Tribunal, in order to satisfy ourselves whether the Revenue has accepted the orders or such orders have been subject matter of challenge in appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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