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TMI Blog2023 (3) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the circumstances of the case and in law, the learned CIT(A) erred in confirming disallowance made by AO, of an amount of Rs.69,27,693/- out of storage charges reimbursed by the appellant to the customers by invoking provisions of section 4o(a)(ia) in view of the following: a) On the facts and in the circumstances of case, Ld AO has not taken all the necessary steps and efforts, and not executed his powers in this de novo assessment proceeding. b) The provisions in respect of the tax deduction at source in the Income Tax Act 1961 are not applicable on the payment made to the corporation established under an Act of parliament. C) The provisions of the tax deduction at source are not applicable to the reimbursement made of payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2009. The AO in the assessment order passed u/s.143(3) held that the assessee has made payments to certain warehouses without deducting TDS and hence disallowed Rs.69,27,693/- u/s.40(a)(ia) of the Act. Aggrieved by the assessment order the Assessee filed appeal before the Ld.CIT(A). The Ld.CIT(A) Aurangabad vide order dated 30/08/2012 deleted the addition made u/s.40(a)(ia) of the Act. The revenue filed appeal before ITAT. ITAT in ITA no. 2146/Pune/2012 vide order dated 27/12/2013 restored the appeal to the file of the CIT(A). Ld.CIT(A) upheld the addition. The assessee filed appeal before the ITAT. The ITAT in ITA No.124/PUN/2016 vide order dated 26/04/2018 remitted the issue to the file of the AO for proper verification and proper opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct Tax at source u/s.194-I. Assessee has admittedly not deducted the Tax at source. Hence the disallowance shall be sustained. Findings and discussions : 5. We have heard both the parties and perused the records. At the outset, we would like to reproduce the relevant paragraphs of the ITAT Order in ITA No.124/PUN/2016 dated 26.04.2018 vide which the ITAT had set-aside the order to the Assessing Officer for denovo adjudication. Quote "3. Shri M.K. Kulkarni appearing on behalf of the assessee submitted at the outset that he is not pressing ground Nos. 1(d) and 1(e) raised in the appeal. The other grounds i.e. ground Nos. 1(a), 1(b), 1(c) and 1(f) are directed against the single issue of disallowance of Rs.69,27,693/- u/s. 40(a)(ia) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The ld. Counsel for the assessee made an oral prayer that the assessee can produce necessary evidence to show that the recipient of the amount i.e. the warehousing corporations have offered the amount paid by assessee to tax if, the matter is remitted back to the Assessing Officer for verification in the light of second proviso to section 40(a)(ia) of the Act inserted by Finance Act, 2012 w.e.f. 01- 04-2013. The ld. Counsel submitted that the Hon'ble Delhi High Court in the case of Commissioner of Income Tax Vs. Ansal Land Mark Township (P) Ltd. reported as 377 ITR 635 has held that the second proviso is declaratory and curative and it has retrospective effect from 01-04-2005. 7. We find merit in the alternate prayer made by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:]] Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed one hundred and twenty thousand rupees : 98 [Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the actual amount was paid by the purchaser directly to the warehouses. However, this does not change the character of the Rent. It was the liability of the assessee. The assessee has admittedly debited the said amounts in its books. It is also a fact that assessee could not file any confirmations from the warehouses that they have shown the amounts as Income and paid taxes. In these facts and circumstances of the case, we are of the opinion that the disallowance made by the AO u/s 40(a)(ia) was right. Accordingly the disallowance of Rs.69,27,693/- is upheld. Therefore, the ground numbers 1 and 3 of the assessee are dismissed. 7. Ground No.2 is regarding interest u/s.234A, 234B & 234C. The Ld.AR could not explain any defect in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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