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TMI Blog2017 (10) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... 40(a)(ia) of Rs.1,69,89,200/- on irrelevant considerations by wrongly interpreting the provisions of sec.40(a)(ia) and sec.201(1). 3. FOR that the Ld. CIT(Appeals) was wrong in confirming the disallowance u/s.-40(a)(ia) of Rs.1,69,89,200/- even though the Form 26A was furnished to him. The Ld. CIT(Appeals) wrongly interpreted the decision of Abhoy Charan Bakshi (ITA No. 1492/Kol/2015 dtd.06.04.2016. 4. FOR that the appellant craves leave to alter, amend, modify any of the grounds and/or take additional grounds before or at the time of hearing of this appeal." 3. The Assessee is a partnership firm. It is engaged in the business of executing construction contracts. In the course of assessment proceedings u/s 143(3) of the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 ITR 635 (Del) wherein it was held that the aforesaid amendments to the proviso to section 201(1) and 40(a)(ia) of the Act were retrospective and were applicable right from the time when section 40(a)(ia) of the act were enacted. The assessee filed certificate in Form No.26A as required by the proviso to section 201(1) of the Act and prayed that the additions made by the AO may be deleted. 5. Since additional evidence in the form of certificate of a Chartered Accountant was filed by the assessee before CIT(A), CIT(A) called for the remand report from the AO. In the remand report the main contention of the AO was that in the remand proceedings he had called for the evidence from Shri Banamali Koley, proprietor of M/s. Koley Construction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to section 40(a)(ia) of the Act. The CIT(A) also held that even if a certificate of an accountant is furnished in Form No.26A, the AO has the right to make further enquiries to verify the correctness of the aforesaid certificate. Since the AO could not make the required verification due to failure of Shri Banamali Koley to give the required details CIT(A) was of the view that the assessee cannot be given the benefit of second proviso to section 40(a)(ia) of the Act. The addition made by the AO was confirmed by CIT(A). 8. Aggrieved by the order of CIT(A) the assessee has preferred the present appeal before the Tribunal. 9. We have heard the rival submissions. The short point that arose for consideration is as to whether filing of Form N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate given by a Chartered Accountant clearly confirms that Shri Banamali Koley has included the sum of Rs. 1,69,89,200/- received as labour charges from the assessee in the gross receipt accounted for by him in his books of account of Rs. 7,87,57,116/-. In the remand proceedings the AO had called for information from Shri Banamali Koley u/s 133(6) of the Act namely the details with documents regarding inclusion of Rs. 1,69,89,200/- in his return of income filed for A.Y.2012-13. Shri Banamali Koley in his letter dated 21.11.2016 has pointed out that the same AO had completed his assessment for A.Y.2012-13 u/s 143(3) of the Act dated 30.03.2015 and the complete books of account, bills and vouchers, bank statements and other documents were subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n circumstances we are of the view that the certificate in Form No.26A has to be accepted as correct. In that view of the matter we are of the view that disallowance sustained by CIT(A) u/s 40(a)(ia) of the Act should be deleted. In the light of the above conclusions we are of the view that it is unnecessary to decide the question whether Form No.26A namely certificate of a Chartered Accountant is conclusive in the matter of applicability of proviso to section 201(1) and second proviso to section 40(a)(ia) of the Act. The addition sustained by CIT(A) is accordingly directed to be deleted. The appeal of the assessee is allowed.
12. In the result the appeal by the assessee is allowed.
Order pronounced in the Court on 25.08.2017. X X X X Extracts X X X X X X X X Extracts X X X X
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