TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 252
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....e Ld. Counsel of the assessee that similar issue had come up in immediately preceding year i.e. 2007-08, before Income Tax Appellate Tribunal in assessee's own case wherein the Tribunal accepted one of the contentions of the assessee and deleted the disallowance. It was prayed that these matter may be sent back to the file of the AO to decide this issue in the light of decision of the tribunal in assessee's own case. It was further stated by the assessee that this issue has also been decided by the Hon'ble Delhi High Court in favour of the assessee in the case of Ansal Land Mark Township (P) Ltd. 373 ITR 635 3.1. Per contra, Ld. DR relied upon the judgments of Hon'ble Kerla High Court in the case of Prudential Logistics And Transports v. ITO [2014] 364ITR 689 (Kerla). But Ld. DR had no objection if these matters are sent back to the file of the AO to be decided afresh in the light of correct legal position. 3.2. We have gone through the orders of lower authorities as well as order of the tribunal of A.Y. 2007-08. It is noted by us that identical issue came up before the Tribunal. The Tribunal vide its order dated 09.04.2014 in ITA No.3121/Mum/2011 in assessee's own case adjudicat....
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...." ------------------------------------------------------------------------------------------ "70. Inserted by the Finance Act, 2012, w.e.f. 1-4-2013." Section 201 of the Act being also relevant is reproduced as under: "Consequences of failure to deduct or pay: 201. (1) Where any person, including the principal officer of a company,- (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (1A) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: 21.[Provided that any person, including the principal officer of a company, who fails to deduct the whole or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a resident or on the sum credited to the account of a resident shall not be deemed to be an assessee in default in respect of such tax if such resident- (i) has furnished his return of income under s....
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.... issue afresh in accordance with law. 13. We have perused the order of the Pune Bench of the Tribunal in the case of 'M/s. Gaurimal Mahajan & Sons' (supra). The relevant observations of the Tribunal in the said case are reproduced as under: "8.1 However, the assessee has made a new legal argument that the Finance Act, 2010 has amended the first proviso to section 40(a)(ia) w.e.f. 01-04-2010 and it has been held by various judicial authorities that such amendment is retrospective in nature. It is the submission of the Ld. Counsel for the assessee that the second proviso to section 40(a)(ia) was inserted by the Finance Act, 2012 w.e.f. 01-04-2013 wherein it is stated that disallowance u/s.40(a)(ia) of the Act need not be made if the assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the I.T. Act., therefore, this should also be held as retrospective since it has been introduced to eliminate unintended consequences which may cause undue hardship to the tax payers. 8.2 We find some force in the above argument of the Ld. Counsel for the assessee. We find the Cochin Bench of the Tribunal in the case of Antony D. Mundackal (Supra) relied....
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.... improve his sales, since it will be very difficult for customers to identify the polishing people and get the work done by themselves. Hence, we are of the view that it may not be correct to argue that the contract existed between the customers and the polishing people. In fact, the customer may not have any contact with the polishing people in this type of transactions. Hence, it is hard to believe the claim of the assessee that he has acted as mere conduit pipe between the customers and polishing people, Accordingly, the claim that the assessee stands in a fiduciary capacity is also liable to be rejected. In this kind of factual situation, in our view, the existence or absence of profit element in the polishing works does not make any difference. 7.2 The Ld Counsel, by placing reliance on the decision of special bench in the case of Meryline Shipping and transports (supra) contended that the provisions of sec. 40(a)(ia) shall apply only to amount payable and not to the amount paid. However, the Hon'ble Gujarat High Court in the case of CIT Vs. Sikandar Khan N Tunvar (357 ITR 312) and the Hon'ble Calcutta High Court in the case of CIT Vs. Crescent Export Syndicate (ITAT....
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.... been examined by the tax authorities, therefore, respectfully following the decision of the Cochin Bench of the Tribunal cited (Supra) and in the interest of justice, we restore this issue to the file of the Assessing Officer with a direction to examine the above contention of the assessee and decide the issue afresh and in accordance with law. Needless to say, the Assessing Officer shall give due opportunity of being heard to the assessee. We hold and direct accordingly." 14. Since in this case also the above arguments were raised by the assessee for the first time before the Tribunal and the contention of the assessee has not been examined by the lower authorities, hence, respectfully following the decisions of the co-ordinate benches of the Tribunal i.e. of Cochin Bench as well as of Pune Bench, we restore this issue to the file of the AO with a direction to examine the above raised contention of the assessee and decide the issue afresh, on this contention only, in accordance with law. It is made clear that we have rejected all other contentions of the assessee on this issue except the plea relating to applicability of the second proviso to section 40(a)(ia) of the Act to the....