TMI Blog2021 (10) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant documents. It is settled law that no fresh relief can be raised before the Assessing Officer except by filing revised return of income as has been held in Goetze India Limited [ 2006 (3) TMI 75 - SUPREME COURT] . However, these restrictions are not applicable on appellate authority as held in case of CIT Vs Pruthvi Broker Shareholder Limited [ 2012 (7) TMI 158 - BOMBAY HIGH COURT] - scope of application under section 154 is limited for rectification of mistake in the order which is apparent. In our view the Ld. CIT(A) was not justified in rejecting the alternative claim of the assessee. Considering the fact that appellate authority are entitled to examine and admit the additional ground of appeal. Therefore the additional / alternative plea made by assessee is admitted by way of additional ground. On merit of the additional / alternative claim, we find that assessee has field certificate of chartered accountant certifying that the recipient of the impugned receipt has included the said receipt in their gross income and had paid tax thereon. Therefore, prima facie we are of the opinion that no disallowance in such circumstances is warranted against the assessee, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re towards the purchase of the goods (i.e. milk) especially in view of the appellant s letters/submissions addressed to the AO, which form part of statement of facts alongwith various submissions to be filed before Hon'ble ITAT, Surat and the appeal of the appellant be allowed in full as prayed for. 2. Brief facts of the case are that assessee is a co-operative society engaged in the business of procurement, processing and marketing of milk, milk products, cattle feed, etc. The assessee filed its return of income declaring total income of ₹ 2.14 crores. In the computation of income, the assessee claimed deduction under section 80P of ₹ 3.27 crores. The case was selected for scrutiny. During the assessment, the Assessing Officer on the basis of information gathered from the office of Income Tax Officer Ward-2 Bardoli that the assessee has paid rent of ₹ 7,48,492/- to Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. On account of bulk chilling unit (for the sake of brevity BCU ) has not deducted tax while making payment. Shri Bandharpada Dudh Utpadak Sahakari Mandli Ltd. has shown the said amount as rent in its return of income. Therefore, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed the certificate of Chartered accountant in Form-26A (under Rule 31ACB) that the recipient and the has included the receipt in their income and paid tax thereon. Thus the assessee cannot be saddled with the liability by invoking provisions of section 40(a)(ia) of the Act. It is conclusive proof that recipient of impugned payment has taken into of the receipt of payment for computing its income and hence, there is no lawful reason to invoke the provision of section 40(a)(ia) of the Act for failure to deduct the tax at source under section 194-I of the Act. To support his submission, the assessee relied on the decision of Koley Construction vs. ITO (2017) 86 taxmann.com 73 (Kol) and RBL Bank Ltd. vs. ITSO (TDS) (2016) 65 Taxmann.com 219 (Panaji). 4. The Ld. CIT(A) considered both the submissions i.e. the primary and alternative submission of the assessee. On primary submission, the Ld. CIT(A) held that payment as prima facie are evident made for use of equipment and chilling units and hence comes within the scope of section 194-I of the Act. Since no TDS is made by the assessee, the disallowance under section 40(a)(ia) of the Act and the Assessing Officer rightly made the disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has shown on account of payment of milk. 8. In alternative submission, Ld. AR of the assessee submits that alternative contention of assessee was rejected by Ld. CIT(A) by taking view that no such plea was raised before the Assessing Officer and that the assessee may raise such plea before Assessing Officer. The Ld. AR of the assessee submits that assessee has furnished the certificate of chartered accountant and relevant document of certifying the payee has included the impugned receipt in their gross total income and therefore no additions were sustainable against the assessee. The Ld. AR for the assessee submits that the assessee is entitled to succeed on primary as well as on alternative submissions. 9. On the other hand, Ld. Senior DR for the Revenue has supported the order of lower authorities. 10. We have considered the rival submission of both the parties and have gone through the order of lower authorities. We find that the Assessing Officer made disallowance of ₹ 7,48,492/- by taking view that the ITO Ward-2 Bardoli informed that the assessee has paid rent to Dudh Utpadak Sahakari Mandli, on which no tax deducted at source as recorded above. Before Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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