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TMI Blog2023 (2) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... t arising out of assessment order dated 26.12.2018 u/s 143(3) of the Income Tax Act, 1961 passed by ACIT, Circle 61(1), Delhi (hereinafter referred to as the Assessing Officer 'AO'). 2. The assessee has come in appeal raising following grounds :- "1. That the Id. CIT(A) as well as A.O. have erred in adding a sum of Rs. 87,800.00 to the Returned Income being the TDS payable as on 31.3.2016. 2. That the provisions of section 43B have the over ridding effect over all other provisions of the Income Tax Act and thus the TDS deposited within the due date of filling of Income Tax Return is fully deductible 3. That in the alternative the TDS outstanding on the last day of the previous year and deposited in current financial year be allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax : Rs. 12,38,907 Ld. AO observed that the above mentioned statutory liabilities payable are a part of the expense which the assessee has claimed as expenditure in his P & L account. As the assessee is following cash system of accounting whereby only payments which have been made during the year can be claimed as expense and thus, these expenses which have not been paid cannot be allowed as an expense. After taking the reply of assessee, the Ld. AO had made addition of Rs. 13,26,708/- being the total two components, TDS payable and service tax. In appeal the issue of component of service tax addition was restored to the files of Assessing Officer as the assessee had submitted that Rs. 11,16,399/- were deposited before due date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in invoking Sec. 40(a)(ia) of the act in the case. 6.2.3 I have carefully perused the order of the Assessing Officer and the submission of the appellant. The Assessing Officer has disallowed TDS payable as the appellant is following cash system of accounting. The Assessing Officer has not invoked provisions of Sec. 43B or Sec. 40(a)(ia) of the Act. The Assessing Officer has not disallowed the expenses claimed by the appellant as paid u/s 40(a) (ia) of the Act for non deduction of TDS. As per provisions of Sec. 43B Any sum payable by the assessee by way of tax, duty, cess or fee by whatever may called under any law for the time being in force........ mean that any tax, duty, cess payable by the assessee, but in the instant case the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting the account of the assessee and deposited into government account as per 26AS of the assessee. The assessee has made TDS payment before the due date of filing of the return under Section 139(1) which emerges from page no. 6 to 11 of the paper book annexing challans as well. The decision of the Hon'ble Delhi High Court in case of Rajnder Kumar (supra) and the decision of the Tribunal relied by the Ld. AR are applicable in the present case as the assessee has paid the TDS amount before the due date i.e. before the date on which return of Income u/s 139(1) of the Act has to be filed. Thus, Section 40(a)(ia) will not be applicable in the present case. Therefore, Ground Nos. 4, 7(c) and (d) are allowed." Thus, the findings of Ld. CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expenses could have been for purposes other than the business. The Bench is of view that such adhoc allowances without any inquiry and evidence is not sustainable. Such disallowances earlier made in assessee's case for the year 2014-15 and 2013-14 were deleted as there was no case of revenue that the expenses were disproportionate to the income earned or professional activities carried by the assessee. Accordingly, this ground is sustained. The Ld. AO shall delete the impugned disallowance. 9. The remaining grounds no. 7 , 8 and 9 being superfluous are disposed off not pressed . 10. As a consequence of above determination of ground no. 1 , 2 , 3 and 6 in favour of the assessee and ground no. 4 and 5 in favour of assessee for statistica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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