AI Drafter 
TaxTMI 
TaxTMI 
2016 (12) TMI 1190
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....se be deleted. 2. For that on the facts of the case the ld. CIT(A) was not justified in sustaining the addition of Rs. 2,05,102/- u/s.69A of the Act'61, and the addition may please be deleted. 3. For that on the facts of the case the assessment order dated 26/03/2013, remained in the custody and in control of the A.O beyond the time barring limit, till 19th April, 2013, is barred by limitation, and may please be cancelled. 4. For that the appellant craves leave to add, alter, amend any further grounds of appeal before or at the time of hearing. 4. It was submitted by the Ld.AR that no orders are required in ground no-3 and accordingly, it is dismissed as not pressed. 5. Ground no-1 is relates to disallowance of expenditure u/s. 40(a)(ia) of the Act. 6. The Assessee is a firm, does work under contract and conducts its business in the name and style as Dhameja mining. The Assessee filed its return declaring a total income of Rs,1,36,904/- on 28-03-2012 and under scrutiny notices u/section 143(2) and 142(1) of the Act were issued, in response to which, the Assessee produced relevant documents as sought. The AO found the assessee debited an expenditure of Rs. 25,59,52....
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....n of High Court is approved. Further the decision of Hon. High Court of Allahabad is not final as the power to seek review exists. 8. In the decisions reported in CIT v. Crescent Export Syndicate [2013] 33 taxmann.com 250 (Cal), CIT v. Md. Jakir Hossain Mandal [2013] 33 taxmann.com 123 (Cal) and CIT v.Sikandarkhan N. Tunvar [2013] 33 taxmann.com 133 (Guj) have given reasoned ruling distinguishing the decision of Merilyn Shipping & Transport. The High Courts have held that the views expressed in the case of Merilyn Shipping & Transports are not acceptable. In view of discussion above the decision of Hon. High Court of Allahabad is to be compared with that of Hon. High Court of Kolkota . The latter is the jurisdictional High Court and its decision has to prevail. The decision of jurisdictional High Court is that the decision in Merilyn Shipping & Transports v. ACIT [2012] 20 taxmann.com 244(Visakhapatnam) (SB) is not acceptable. This being the case, the reliance by Authorised Representative of the assessee to decision in Merilyn Shipping & Transports v. ACIT [2012] 20 taxmann.com 244(Visakhapatnam) (SB) in the case is not accepted by me. Hence ground 2 is dismissed. 9. Before u....
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....of the Act. No doubt the object of section 40(a)(ia) of the Act is to ensure that the TDS provision as provided in Chapter XVII-B is implemented without any default. As per section 40(a)(ia) of the Act any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services "payable" on which tax is not deducted or the tax is deducted but the same is not paid within the time allowed such amount shall be disallowed while computing the income. The sub-section speaks of the amount "payable" on which the tax is not deducted and therefore it should apply only if any amount is "payable", but if the amount is already paid the provisions of this section should not apply. The crucial word is "payable". The question arises "whether payable means payable at the end of the year or payable at any time during the year though paid during the year itself? If one looks into the TDS Provisions from sections 194A to 194K, it will be apparent that as per the language of those sections, tax is to be deducted at the time the amount is paid or at the time when the amount is credited, i.e. when the liability is admitted and it becomes payable. Therefore wherever ....
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....'paid' amount. 21. In view of above discussion, we answer the question as under:- The provisions of section 40(a)(ia) of the Income Tax Act, 1961, are applicable not only to the amount which is shown as payable on the date of balance-sheet, but it is applicable to such expenditure, which become payable at any time during the relevant previous year and was actually paid within the previous year. In the result the question is decided in favour of revenue and against the assessee." 11. Hence, respectfully following the decision of the Hon'ble Calcutta High Court in the case of supra we dismiss the plea of the assessee that provisions of section 40(a)(ia) of the Act cannot be made applicable in respect of amounts paid before the end of the previous year. 12. However, the assessee had submitted the information before the CIT-A that the payees have duly reflected this subject mentioned receipts in their returns of income and paid taxes thereon. We find that the amendment in section 40(a)(ia) of the Act has been held to be retrospective in operation in the light of the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd reporte....
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....e above submissions of the assessee in respect of gross bill was disclosed and offered for taxation and confirmed the addition made by the AO in this regard. The observation of which is reproduced herein below:- "11. The explanation offered by the appellant has been considered. The fact is that the finding of the Assessing Officer that the sum received by cheque after the end of the financial year against business receiavables at the end of financial year is not figuring in the balance sheet. Thus an incontrovertible fact of an asset not recorded in the books of account exists. This fact is independent of whether the sum is included as a business receipt or not. The fact of existence of unaccounted assets in the form of business receivables stands substantiated. This is independent of whether it is already taken to profit and loss account and profit element of same is taxed or not. Hence, I uphold the addition made by the Assessing Officer. " 17. The ld.AR submits that the contention of the assessee was that he did not receive such amount. The cheque was filed before the CIT-A to prove that the said cheque was never received by the assessee. Without considering the same the C....