2023 (11) TMI 1184 - AT - Income Tax

Provident fund disallowance under section 43B remitted for fresh adjudication after assessee sought verification opportunity

ITAT Bangalore remitted provident fund contribution disallowance under section 43B to AO for fresh adjudication after assessee sought verification ... Disallowance of contribution to provident fund, superannuation fund / gratuity fund or any other fund for the welfare of the employees - disallowance u/s. 43B - case of the assessee that the amount has been debited to the profit & loss account of the previous year - sum payable to an employee by way of contribution towards fund has been shown in the tax audit as not allowable expenses u/s. 43B - HELD THAT:- The amount, was not available for deduction in 2017-18 as the same amount was not paid by the assessee on or before the due date applicable in it’s case of furnishing his IT return u/s. 139(1) - in terms of the provision of the law, the same expenditure can be availed as deduction in the year of actual payment i.e. for A.Y. 2018-19. The claim of making such payment in the previous year not appearing in the audit report due to some technical error. In that view of the matter, the assessee prayed for deletion of the adjustment made in the intimation u/s. 143(1) of disallowance of payment towards contribution of provident fund and superannuation for the year under consideration. No evidence has been filed by the appellant to the amount as added back to the income of the appellant for A.Y. 2017-18, particularly the computation of income for A.Y. 2017-18 and the contention made by the appellant was not found to be acceptable as also the same fact is not appearing in the Audit Report as a technical error, the addition was upheld by the Ld.CIT(A). At the time of hearing the instant appeals, assessee submitted before us that the issue may be remitted to the file of Ld.AO for verification of the same upon considering the evidences to be placed by the assessee in support of the case made out. The Ld.DR on the other hand relied upon the order passed by the Ld.CIT(A). We in order to prevent the miscarriage of justice, find it fit and proper to remit the issue to the file of Ld.AO to adjudicate the issue afresh upon considering the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter. We also further make it clear that the assessee in that event be given an opportunity of being heard by the Ld.AO. This ground of appeal is, therefore, allowed for statistical purposes. Addition u/s. 40(a)(ia) - non compliance with the provisions of chapter XVII-B - assessee’s case is this that the receiver of the above expenditure has offered as income in its return of income for the respective financial year - case of the revenue is this that no details have been furnished about the receiver neither evidence has been filed to show that the receiver of the said expenditure has offered this amount as income in its ITR filed for A.Y. 2018-19 u/s. 139 - HELD THAT:- As assessee submitted before us that the issue may be remitted to the file of Ld.AO for verification of the same upon considering the evidences to be placed by the assessee in support of the case made out. DR on the other hand relied upon the order passed by the Ld.CIT(A). We in order to prevent the miscarriage of justice, find it fit and proper to remit the issue to the file of Ld.AO to adjudicate the issue afresh upon considering the evidence on record and any other evidence which the assessee may choose to file at the time of hearing of the matter. Scope of limited scrutiny - Addition towards non-deduction of tds u/s 194H - assessee argued case was selected for limited scrutiny under CASS to verify the issue “verification of the genuineness of the expenses” and therefore the scope of making addition in the instant case is beyond the scope of limited scrutiny and thus the addition is not in accordance with law and thus liable to be deleted - HELD THAT:- The submission of the Ld.AR have not been able to be controverted by the Ld.DR rather consideration of the issue of payment of TDS is also within the scope of limited scrutiny for verification of the genuineness of the expenses as was the ultimate argument by him. However, according to us such submissions is found to be not tenable, the scope of limited scrutiny is only within the periphery of the verification of the genuineness of the expenses which does not include the payment of TDS as has been considered in this particular case by the Ld.AO and addition made thereof. Hence the same is not found to be justified and thus deleted. TDS u/s 194H - Whether TDS is not liable deducted on whole receipts? - From the case in hand, we find that the parties are service providers who collect fees from participants and they collect gateway payment commission from the appellant after returning the gateway charges they transfer the balance amount collected from the participants to the appellant. We find that the payments made to gateway providers are not brokerage and TDS u/s. 194H of the Act is not liable to be deducted. TDS is not liable to be made u/s. 194H. The addition, is, therefore, deleted. Issues Involved:1. Condonation of Delay2. Disallowance under Section 43B3. Addition under Section 40(a)(ia)4. Addition under Section 194HCondonation of Delay:The application in ITA No. 466/Bang/2023 was barred by a delay of 102 days, and in ITA No. 281/Bang/2023 by 19 days. The delay was attributed to the misplacement of the order by a staff member who left the organization and the Managing Director being out of station. The Tribunal found the reasons genuine and condoned the delay in both appeals.Disallowance under Section 43B:The issue involved a disallowance of Rs. 5,00,150/- for contributions to provident fund and other welfare funds. The assessee claimed the amount was debited in the previous year but paid in the current year, making it eligible for deduction in the year of actual payment. The Tribunal remitted the issue back to the Assessing Officer (AO) for verification, allowing the assessee to present evidence.Addition under Section 40(a)(ia):The assessee contested the addition of Rs. 50,045/- for non-compliance with Chapter XVII-B, arguing that the recipient had included the amount in their income, and no proceedings were initiated under Section 201(1). The Tribunal remitted the issue back to the AO for fresh adjudication, allowing the assessee to present supporting evidence.Addition under Section 194H:The addition of Rs. 15,34,844/- was contested on the grounds that the case was selected for limited scrutiny to verify the genuineness of expenses, and the scope did not include TDS payment issues. The Tribunal found the addition beyond the scope of limited scrutiny and deleted it. On merit, the Tribunal held that TDS under Section 194H should only be on the commission part, not the whole receipt, relying on judgments from various courts. The payments to gateway providers were not considered brokerage, and thus, TDS was not liable under Section 194H. The addition was deleted, and the appeal was allowed.Conclusion:In the result, the appeals filed by the assessee were allowed, with the issues remitted back to the AO for fresh adjudication where necessary, and the addition under Section 194H was deleted.