TMI Blog2018 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... re. 2. None appeared on assessee s behalf. Case heard with the assistance of Ld. Departmental Representative. Revenue has raised following grounds of appeal; 1. Whether on the facts and in the circumstances of the case, the Ld. CIT(A)-I, Indore has erred in deleting the addition/disallowance of ₹ 89,08,758/- u/s 40(a)(ia) of the I.T. Act in violation of Rule 46A of the I.T. Rules by accepting an additional evidence produced by the assessee which was never furnished before the AO although ample opportunities were provided to the assessee in the interest of natural justice and AO was justified in making disallowance u/s 40(a)(ia) of the I.T. Act, as the assessee has without any reasonable cause failed to furnish details and the evidence of TDS deducted . 3. Briefly stated facts as culled out from the records are that the assessee is a individual doing the business of trading of pharmaceutical products under the proprietary-ship of M/s. AFD Pharmasia. Assessment u/s 143(3) of the Act was completed on 24.12.2010 assessing income at ₹ 29,85,590/-. Case was reopened u/s 147 of the Act owing to non deposit of TDS. Necessary information called by issuing notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HDFC Bank Ltd., (Online Payment) BSR Code- 05100308 7.1 Further the AO has noted that no details were submitted by the appellant in respect of TDS deducted and paid and as per audit report the auditor noted that the appellant has defaulted in making TDS compliances and the details are as per Annexure-D. but the Annexure-D was not enclosed with the audit report and not placed on record by the appellant. 7.2 From the record it is seen that copy of Annexure-D was on record according to which the following non compliances in respect of TDS on C F commission and consultancy charges were noted by the auditor. Consultancy charges of Rs.l,32,000/- paid to Mr. Neeraj Gupta during the year. TDS of ₹ 3010/- deducted on 31-03-2008 and paid on 30-09-2008. TDS deducted at the rate of 2.28% instead of 10.3%. Tax of Rs.l,82,174/- is deducted on commission of ₹ 84,82,177/-. The tax is deducted at the rate of 2.14% instead of 10.3%. The entire tax was deducted a March 31st and deposited in September 30th 2008. 7.3 From the above it is thus evident that on record it was already certified by the auditors that TDS on both commission and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 82-92C 10 B.M.S. Projects Pvt. Ltd. v/s. DCIT 93-105 11 Rana Builders V/s. ITO 106-115 12 Punjab State Co-operative Federation of Housing Building Societies Ltd. vs. DCfT 116-121 In aforementioned cases it has been held that amendment made in the provisions by Finance Act, 2010 being remedial/ curative in, nature have retrospective application. For the sake of brevity we may reproduce the relevant observation of Mumbai Tribunal in the case of Bansal Pariuahan. India Ltd, decision dated 22/9/2010 in ITA No.2355/Mum/2010. 28. The assessee in the present case thus had not only deducted tax at source from the payments of freight charges made during the period 1.4.2005 to 28.2.2006, but the tax so deducted was also entirely paid by him to the credit of the Government although beyond the due date as stipulated in section 200 but before the due date of filing of his return of income for the year under consideration. The relevant TDS provisions thus were substantially complied by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , respectfully following the decisions relied upon by Ld. AR, after hearing both the parties we are of the opinion that disallowance cannot be made if the deposits are made before the due date of filing the return as described in section 139(1). As there is no dispute so as it relates to date of deposit of tax and these dates are stated in the remand report itself we direct the AO to delete disallowance of ₹ 7,43, 955/- 4. In the result, the appeal filed by the assessee is partly allowed in the manner aforesaid 7.5 The above view has also been taken by the jurisdictional I.T.A.T. in the case of ACIT, 5(1) Indore vs Shri Jawaharlal Agrawal, Indore in ITA No.204 205/Ind/2011 for the A.Y 2006-07 2007-08 in its order dated 31.08.2012. The relevant paras are reproduced below: We have considered the rival submissions and have gone through the orders of the authorities below and also deliberated on the decisions relied on by the CIT DR in the case of Bharti Shipyard, as well as the decision of Hon'ble Kolkata High Court in the case of Virgin Creations. We found that various Benches: of the Tribunal have dealt with the issue of allowability of claim of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the provisions of Section 40(a)(ia).of the Act, by the Fina.nce Act,2010 is retrospective from 1.4.2005. Consequently, any payment of tax deducted at source during previous years relevant to and from A Y 05-06 can be made to the Government on or before the due date for filing return of income u/s.139(1) of the Act. If payments are made as aforesaid, then no disallowance u/s 40(a)(ia) of the Act can made. Admittedly in the present case the assessee had deposited the tax deducted at source before the due date for filing return. of income uls.139(1) of the Act and therefore the impugned disallowance deserves to be deleted. We order accordingly and allow the appeal by the Assessee. 17. In view of the above discussion and applying the proposition of law laid down in the above decision of Calcutta High Court, where payment to the Government treasury was admittedly made before last date of filing return, the same cannot be disallowed u/s 40a(ia). Accordingly action of the CIT(A) is upheld. 7.6 In view of the above and the fact that the appellant has paid the tax deducted at source on 30-09-2008 which is the due date for filing of return in the case no disallowance i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diture- Disallowance- Payments Subject To Deduction Of Tax At Source- Payments To Sub-Contractor Assessee Deducting Tax At Source Under Wrong Provision Resulting In Short Deduction Of Tax- No Disallowance- Can Be Made Applying Section 40(a)(ia)- Income Tax Act, 1961 3. ACIT Vs PANKAJ BHARGAVA,( 34 CCH 0035, Delhi Tribunal) Business expenditure- Allowability - AO held that assessee has deducted tax at source under s 194C at 1 percent whereas it ought to have been deducted under s 194J at 10 percent and disallowed expenses claimed by assessee-Held, this appeal was similar to issue involved for AY 2008- 2009 and in that case against order of Commissioner of Income Tax (Appeals) deleting impugned addition under s.40A(ia), department had come up with appeal which was dismissed-Following precedent, order of Commissioner of Income Tax (Appeals) was upheld as issue was squarely covered in favour of assessee-Revenue's appeal dismissed. 4. TATA AIG GENERAL INSURANCE CO. LTD. Vs INCOME TAX OFFICER(OSD)3(2),(43 SOT 0215, Mumbai Bench) TDS-Under s. 194D Commission paid on reinsurance- Insurance companies have not provided any service of soliciting or procuring insurance business ..... X X X X Extracts X X X X X X X X Extracts X X X X
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