TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 691
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.... that led to filing of this appeal are as under: Appellant is a partnership firm engaged in advertisement business. The controversy before us pertains to assessment year 2008-09. According to appellant/ assessee, for this assessment year, on account of unexpected administrative exigencies, delay occurred in filing the returns within the stipulated time, which resulted in delay in deducting and remitting the amount at source under various heads payable to the Government account within the time stipulated. In the return, a total income of Rs. 48,61,090/- was shown for the above assessment year. The assessing authority disallowed total expenditure of Rs. 4,72,59,752/- already incurred by the appellant for earning the business income under different heads invoking the provisions under Section 40(a)(ia) of the Income Tax Act. Aggrieved by the same, an appeal came to be filed by the appellant/assessee before Commissioner of Income Tax (Appeals). Appellate Authority allowed the appeal setting aside the assessment order. Aggrieved by the same, Revenue approached the Income Tax Appellate Tribunal and the Tribunal, by order dated 27.07.2013, set aside the order of CIT (Appeals). 3. Accordi....
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.... assessee in default under first proviso to Section 201(1), thus for the purpose of this sub clause, it shall be deemed that assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso. The first proviso to Section 201(1) was also amended which clarifies the position that the person who failed to deduct the whole or any part of the tax in accordance with the Chapter on the sum paid to a resident or on the sum credited to the account of the resident, he shall not be deemed to be an assessee in default, in respect of such tax, if the resident payee satisfies four conditions and the deductor furnishes a certificate from a Chartered Accountant. Under those conditions, it has to be assumed that for the purpose of Section 40(a)(ia), deductor has deducted and paid the tax on such sum on the date of furnishing return of income by the resident payee. Therefore, the provisos brought to the above two sections also dilute the effect of Section 40(a)(ia) of the Act. Contending as stated above, appellant sought for setting aside the order of the Appellate Tribunal and that demanding a sum of Rs. 2,36,78,83....
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....given on question of law, it is not binding. It is contended on behalf of appellant that order of Tribunal is without considering legal issues, therefore, it is cryptic and non speaking order without touching legal issues. 8. Revenue approached Tribunal aggrieved by order of deletion of disallowance made under Section 40(a)(ai) of Income Tax Act and also aggrieved by deletion of disallowance made out of repairs and maintenance expenses. According to Revenue, TDS amount came to be remitted beyond the due date, therefore, relevant expenses are not leviable during the year under consideration in view of specific provision contained in said Section. In the absence of proper vouchers pertaining to claim of repairs and maintenance, according to department, assessing officer was justified in disallowing 10% of expenses on ad-hoc basis. To this, learned representative for assessee while supporting the order of CIT (Appeals) contended, expenditure could be claimed in the year of payment of TDS. According to appellant, this concession made by counsel pertains to question of law and not question of fact. Therefore, there was no justification for Income Tax Appellate Tribunal to set aside ord....
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....ould be any possible view, in such cases judicial review has to be exercised. 13. In a case where Advocate General gives concession before court to grant benefit of an earlier date of appointment to an employee and if such concession is on point of law, it does not bind State Government or other employee. In this regard, decision in B.S. Bajwa v. State of Punjab AIR 1999 SC 1510 is relied upon. 14. The order of assessment came to be interfered with by CIT (Appeals) by placing reliance in the case of Teja Constructions v. Assistant Commissioner of Income-Tax ((2010) 5 Taxmann.com 61 (Hyd.-ITAT)). Relevant portion of the order reads as under: "The bare provision of s.40(a)(ia) provides for non-deduction of amount which remains payable to a-resident in respect of fees for technical services etc. It is not applicable where expenditure is paid. It is applicable only in cases where the payments are due and outstanding. The word 'payable' is not defined though the word paid is defined under s.43(2) to mean actually paid or incurred. Hence, by implication the word payable does not mean actually paid or incurred. Hence, by implication the word 'payable' does not inc....
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....ven the principles of liberal interpretation cannot be applied where the language is clear, simple, and the meaning of the word is apparent. As such, the provisions of s.40(a)(ia) are not applicable in the present facts of the case. The disallowance if any required to be made shall be restricted to the extent of payable shown in the balance sheet at the end of the year. However, this is not the case in the present case because once the estimation of income is made, further disallowances are unwarranted." 15. Learned counsel appearing for assessee relies upon another decision of Appellate Tribunal, Mumbai in the case of Bansal Parivahan (I) P.Ltd. v. Assessee (ITA 2355/M/10M). The issue was also with regard to ground No.2, which relates to disallowance of certain amounts made by assessing officer, which came to be confirmed by CIT (Appeals) in respect of transport charges under Section 40(a)(ia) of Income Tax Act. At paragraph 28 relevant facts are discussed, which reads as under: "28. The assessee in the present case thus had not only deducted tax at source from the payments of freight charges made during the period 1.4.2005 to 28.2.2006, but the tax so deducted was also entirely....