TMI Blog2018 (3) TMI 2000X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 201, then the assessee shall be deemed to have deducted and paid the tax and, thus, no disallowance would be called for under section 40(a)(ia) of the Act. For complying with the finding of the Tribunal in the case of the assessee itself for assessment year 2007-08, the assessee is required to demonstrate that it fulfilled the conditions provided in above proviso to section 201(1) - we restore the matter to the file of AO for verification of the conditions of proviso to section 201(1) - Appeal of the Revenue is allowed for statistical purposes. - ITA No.6484/Del/2015 - - - Dated:- 16-3-2018 - SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. O.P. KANT, ACCOUNTANT MEMBER For the Appellant : Sh. Vijay Verma, CIT(DR) For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidering the submission of the assessee, deleted the addition with following findings: 7. I have carefully considered the submission of the finding of the Assessing officer the submission of the, L.d A.r. In the case under consideration identical disallowance on same set of facts were made in A.Y 2007-08 against which appeal was filed by the appellant before the Commissioner of income Tax (A) -8 Delhi . CIT(A) has considered the issue in question in detail and vide order no 1/13-14 dated 03.09.2014 it has been held that disallowance under section 40(a)(ia) is not applicable for the payment made by the assessee to DTC/MCD. Moreover, Hon ble Delhi High Court in the case of CIT vs. Ansal Land Mark Township Pvt. Ltd. order dated 26th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2007-08, the Tribunal has upheld the finding of the Ld.CIT(A) and deleted the disallowance. According to him, payments made by the assessee have been declared by the DTC as their income, therefore, no disallowance can be made under section 40(a)(ia) of the Act in view of 2nd proviso to section 40(a)(ia) of the Act, which has been held to be retrospective in nature. 5. In rejoinder, the Ld. CIT(DR) submitted that the fact whether the payment made by the assessee are reflected in the income of the DTC has not been verified by the lower authorities as far as the year under consideration is concerned. Accordingly, he submitted that matter may be restored to the Assessing Officer for verification and the assessee may be directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reproduced above is affirmed and accordingly, ground raised by the revenue is dismissed. 7. Thus, the Tribunal has held that in terms of proviso to section 40(a)(ia) of the Act, which has been held to be retrospective in nature by the Hon ble Delhi High Court, no disallowance could be made under section 40(a)(ia) of the Act. For ready reference, the relevant proviso which has been inserted by the Finance Act, 2012, w.e.f. 01/04/2013 is reproduced as under: Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (1) of section 201, then, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfilled the conditions provided in above proviso to section 201(1) of the Act. 10. Accordingly, we restore the matter to the file of the Assessing Officer for verification of the conditions of proviso to section 201(1) of the Act and decide the issue in view of the finding of the Tribunal in the case of the assessee for assessment year 2007-08. The assessee is directed to produce all the necessary documents and evidences before the Assessing Officer for carrying out the said verification. Accordingly, the grounds raised by the Revenue are allowed for statistical purposes. 11. In the result, appeal of the Revenue is allowed for statistical purposes. The decision is pronounced in the open court on 16th March., 2018. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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