TaxTMI 
TaxTMI 
2016 (2) TMI 1148
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....irecting the AO to add back Rs. 33,88,282/- claimed under the head machinery hire charges by invoking the provisions of sec. 40(a)(ia) read with sec. 194I(a)/194C as also the provisions of section 40(a)(ia) were not applicable on the facts and circumstances of the case. 4. For that the Ld. CIT erred in directing the AO to add back Rs. 1,83,956/-claimed under the head dewatering charges by invoking the provisions of sec. 40(a)(ia) read with sec. 194C as also the provisions of section 40(a)(ia) were not applicable in the facts and circumstances of the case. 5. For that the Ld. CIT erred in directing the AO to add back Rs. 5,13,966/- by invoking the provisions of sec. 40(a)(ia) read with sec. 194C(3) when no tax was deductible on the said amount was since the payment during the whole year to each of the person less than Rs. 50000/- and single payment was less than Rs. 20000/ -and further even otherwise the provisions of section 40(a)(ia) were not applicable on the facts and circumstances of the case. 6. For that the Ld. CIT erred in direction the AO to add back Rs. 43,94,971/- claimed under the head wages and labour by invoking the provisions of sec. 40(a)(i....
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....t on 01-06-2011 determining the assessed income at Rs. 6,04,831/- as against returned income of Rs. 4,97,664/-. During the course of proceedings u/s. 263 of the Act before the ld.CIT, the ld.AR of the assessee pleaded that allowability of various expenses in the context of provisions of section 40(a)(ia) of the Act was indeed examined by the ld.AO in detail as per the then prevailing case laws on the impugned issue. He further clarified that the assessment order u/s. 143(3) of the Act was passed on 01-06-2011 by relying on the decision of the Hon'ble Special Bench, ITAT Vizag in the case of Merilyn Shipping Transport, which was in favour of the assessee. The ITAT Vizag, Special Bench in the case (supra) had held that the provisions of section 40(a)(ia) cannot be invoked in respect of amounts paid before the end of the previous year. The ld.AO had duly considered the said judgment and taken a conscious, judicious and possible view while framing the impugned assessment u/s. 143(3) of the Act. Accordingly, the ld.AR argued that the same cannot be the subject matter of revision proceedings u/s. 263 of the Act by the ld.CIT based on subsequent developments of judgments by the various Ho....
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....ncellation of the assessment order by the CIT was not valid and he should have directed the ITO to make a fresh assessment only with regard to the specific items of income for which the show-cause notice was given under section 263. We agree with the submissions made by the learned counsel for the assessee and modify the order of the CIT to the extent that the ITO will make a fresh assessment after making necessary and proper investigation only in respect of the two items of income (i) relating to the loss of Rs. 4,06,93,010 claimed by the assessee in purchase and sale of units of UTI, 1964, etc., as per details discussed hereinbefore ; and (ii) with regard to the dividend income on such units of UTI as discussed and decided in earlier paragraphs of this order." * In the case of Maxpak Investment Ltd Vs. ACIT reported in (2007) 13 SOT 67(Delhi), wherein it has been held: "...........CIT v. G.K. Kabra [1995] 211 ITR 336 the Andhra Pradesh High Court was dealing with an _ - n seeking reference 'under section 256(2), inter alia, of the following question: "Whether , on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was ....
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....nt is continuously seeking adjournment before the tribunal. We also find that the revenue had also sought adjournment today for its 11 cases out of 18 cases listed in the bench. In view of the aforesaid facts, revenue's request for adjournment is rejected and we dispose off the appeal after hearing the ld.AR and the material available on record. 7. We have heard the Learned AR and perused the materials available on record. With regard to the addition proposed to be made by the ld.CIT towards understatement of receipts in the sum of Rs. 1,20,49,196/-, we find that the same was not intended to be included in the show cause notice by the ld.CIT and the same was for the first time brought to the notice of the ld.AR only on last date of hearing i.e. on 14-02-2014 and the order of the ld.CIT u/s. 263 has been passed on 20-02-2014. In this regard, we hold that the issue which was not the subject matter of show cause notice issued u/s. 263 cannot be considered in the order passed u/s. 263 of the Act, as obviously the assessee would not have an occasion to file his submissions on the same in consonance with principles of natural justice. The provisions of section 263 is very clear that t....
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....e tax in accordance with the provisions of Chapter XVIIB on any such sum but is not deemed to be an assessee in default under the first proviso to subsection (1) section 201, then, for the purpose of this sub-clause, it shall be deemed that the 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.] 9. We also find that the provisions of section 40(a)(ia) of the Act has been held to be retrospective in operation by the decision of the Hon'ble Delhi High Court in the case of CIT vs Ansal Land Mark Township (P) Ltd reported in (2015) 61 taxmann.com 45/ 377 ITR 635(Del)., wherein the question raised before their Lordships and their decision rendered thereon is as under:- Question: The issue that arose before the High Court was- "Whether the second proviso to Section 40(a)(ia)( inserted by the Finance Act, 2012), which states that TDS shall be deemed to be deducted and paid by a deductor if resident recipient has disclosed the amount in his return of income and paid tax thereon, is retrospective in nature or not ?" Held : "Section 40(a)(ia) was introdu....