2012 (12) TMI 527

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ier charges and convention charges. These amounts have been disallowed by the Assessing Officer under sec. 40(a)(ia) of the Income-tax Act, 1961 on the ground that assessee failed to deduct the TDS while making payments of these amounts. The learned counsel for the assessee at the very outset submitted that the issue in dispute is squarely covered in favour of the assessee by the order of the ITAT, Delhi Benches in ITA No.2218/Del/2010 in the case of M/s. SRS Real Estates Ltd. vs. Addl. CIT as well as by the decision of the Special Bench of the ITAT passed in the case of Merilyn Shipping & Transport Vs. ACIT, Range-I, Vishakhapatnam reported in 136 ITD 23. According to the learned counsel for the assessee, the ITAT while construing section ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... or, after deduction, has not been paid durng the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section(1) of section 200" 9. In Jaipur Vidyut Vitran Nigam Ltd.(supra), it has been held, inter alia, that the provisions of section 40(a)(ia) of the Act provided in nondeduction of amount which remains payable to a resident in respect of fees for technical services, etc.; that it is not applicable where expenditure is paid; that it is applicable only in cases where the payments are due and outstanding; that the word "payable" is not defined, though the word "paid" is defined u/s 43(2) of the Act to mean "actually paid" or "incurred"; that hence, by implication, the word "payable" does not include....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....observed, 'K. Srinivas Naidu' (supra) has followed 'Jaipir Vidyut Vitran Nigam Ltd.' (supra). Even otherwise, it is trite law that nothing can be added to or subtracted from the bare provisions of a section of a statute, unless the context is shown to be otherwise. The legislature chooses its words deliberately and specifically. The expression implied in section 40(a)(ia) of the Act, is "payable" and not "paid". In the present case, the commission involved undisputedly stands paid. Also, as observed in 'Jaipur Vidyut Vitran Nigam Ltd.'(supra), section, 40(a)(ia) imbibes a legal fiction and it needs to be construed strictly. 13. In view of the above, the grievance of the assessee is found to be justified and is accepted as such. 14. Th....