TMI Blog2015 (11) TMI 1879X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked even in respect of amounts paid before the end of the financial year. We also find that there is an amendment in section 40(a)(ia) by insertion of second proviso w.e.f 1-4-2013, wherein if the payee had considered the subject mentioned receipts including the sum in his return, then the payer ( the asssessee herein) should not be invited with the disallowance of section 40(a)(ia) of the Act. This amendment has been held to be retrospective in operation by recent decision of the Hon ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd. [ 2015 (9) TMI 79 - DELHI HIGH COURT] Thus we set aside this issue to the file of the ld.AO to decide the same in the light of the aforesaid judgment( as stated supra). Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he revenue arises out of the order of the Learned CIT(A), XXXVI, Kolkata in Appeal No.610/CIT(A)-XXXVI/Kol/2011-12/1638 dated 16-11- 2012 for the Asst Year 2006-07 passed against the order of assessment framed by the Learned AO u/s 144/147 of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 2. 1st and 2nd issues to be decided in this appeal are that whether a sum of Rs.41,71,115/- could be added u/s. 40(a)(ia) of the Act and 50% commission expenditure could be held to be bogus in the facts and circumstances of the case. 3. The brief facts of this issue are that the assessee is an individual and wholesaler of medicines and running his business under the name and style M/s. Roy Agency . During the assessment year 2006-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uspended from operation as per Hon ble Andhra Pradesh High Court s order. 2. Ld. CIT(A) has erred on facts and in law in not holding the full part of the commission expenditure as bogus when he himself has held the 50% to be bogus. 4. Shri Amitabh Roy, JCIT, ld. Sr. DR argued on behalf of the revenue. None appeared on behalf of the assessee. 5. We have heard the ld. Sr.DR and perused the material available on record. We find that the issue of paid/payable as decided by the ITAT Special Bench, Vishakapatnam in the context of applicability of section 40(a)(ia) has been reversed by the decision of the Hon ble Jurisdictional Calcutta High Court in the case of CIT Vs. Crescent Export Syndicate reported in (2013) 33 Taxmann.com 250( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to the same. Hence, an assessee could not be penalized under section 40(a)(ia) when there was no loss to revenue. The Agra Tribunal in the case of Rajiv Kumar Agarwal vsACIT [2014] 45 taxmann.com 555(Agra- Trib) had held that the second proviso to Section 40(a)(ia) is declaratory and curative in nature and has retrospective effect from 1st April, 2005, being the date from which sub-clause(ia) of section 40(8) was inserted by the Finance No.2) Act, 2004, even though the Finance Act, 2012 had not specifically stated that proviso is retrospective in nature. The High Court affirmed the ratio laid down by The Agra Tribunal and held that said proviso is declaratory and curative in nature and has retrospective effect from 1st Apr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2,46,065/- to the assessee. Aggrieved, the revenue is in appeal before us on the following ground:- 3. Ld. CIT(A) has erred on facts and in law in giving relief on carriage outward of Rs.2,46,065/- as he himself detected discrepancy. 8. We have heard the ld.DR and perused the material available on record. We find that in the facts and circumstances of the case, we deem it fit and appropriate, in the interest of justice and fair play, to set aside this issue to the file of the ld.AO for deciding the same afresh, in accordance with law, after providing reasonable opportunity of being heard to the assessee. The assessee is also directed to co-operate with the ld.AO in furnishing necessary evidences in support of his claim. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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