TaxTMI 
TaxTMI 
2022 (10) TMI 345
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....s and circumstances of the case as well as law on the subject, the learned Pr. Commissioner of Income-Tax has erred in holding that disallowance of Rs.2,19,96,779/- should be made u/s 40(a)(ia) of the Act for depositing TDS made after due date of filling return of income. 3. On the facts and circumstances of the case as well as law on the subject, even otherwise also revisionary order u/s 263 of the Act cannot be passed as the assessment order is subject matter of appeal before ld. Commissioner of Income tax (Appeals). 4. It is therefore prayed that order passed by Pr. Commissioner of Income-Tax u/s 263 of the I.T Act setting aside the order of assessing officer and directing assessing office to make fresh assessment may please be quashed. 5. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal." 3. Brief facts of the issue in dispute are stated as under. During the year under consideration, the assessee- company, M/s Airlink Communication Pvt. Ltd. was engaged in the business of Broadband Internet Services, High Speed Broadband Internet, Seamless Connectivity, Wire & Wireless Broadband et....
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....fore ld PCIT. The ld PCIT, then held that the assessment order in the case of Airlink Communication Pvt. Ltd. passed under section 143(3) of the Act for A.Y. 2014-15 on 21.12.2016 is found to be erroneous and prejudicial to the interest of revenue and the AO concerned was accordingly directed to re-compute and determine the correct total income of the assessee company after making disallowance of wrong claims made by assessee. 5. Aggrieved by the order of the ld. PCIT, the assessee is in appeal before us. 6. Learned Counsel for the assessee, at the outset stated that during the revision proceedings under section 263 of the Act, the ld. PCIT has not given sufficient opportunity of being heard and that is why assessee has raised additional ground of appeal. The ld. PCIT has issued a show cause notice on 18.03.2019 which was served on the assessee- company. The hearing of the case was fixed on 25.03.2019, however neither the assessee nor his Authorized Representative (AR) appeared before the ld. PCIT, therefore, ld PCIT passed revision order under section 263 of the Act. The Ld. Counsel submitted that ld. PCIT ought to have given more opportunity to the assessee and ought to hav....
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....iven sufficient opportunity during the revision proceedings under section 263 of the Act, then the Bench may remit this issue back to the file of the ld. PCIT for de novo adjudication after giving sufficient opportunity of being heard to the assessee. 10. On merits, the Ld. DR submits that since the assessee has deducted TDS but not deposited to the Government Account, therefore ld. PCIT has exercised his jurisdiction on the this issue that assessee has not deposited the TDS on time, therefore issue raised by ld PCIT in his revision order was correct in the eye of law and hence order passed by the ld. PCIT under section 263 of the Act, does not called any interference, therefore order passed by the ld. PCIT should be upheld. 11. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. PCIT and other material brought on record. We note that assessing officer framed the assessment order dated 21.12.2016, under section 143(3) of the Act, after considering assessee`s submission on the issue of TD....
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....DSA Commission or Brokerage 21100/- 194H 4. Kapadiya Infotech-DSA Commission or Brokerage 18750/- 194H 5. Keeran Communication DSA Commission or Brokerage 11900/- 194H 6, Meenu Garg DSA Commission or Brokerage 16100/- 194H 7 Online Enterprise DSA Commission or Brokerage 64150/- 194 H 8 Padmavati DSA Commission or Brokerage 16150/- 194H 9, Rajesh Dekhate DSA Commission or Brokerage 32,350/- 194H 10. Ruby DSA Commission or Brokerage 19850/- 194H 11. Sahil Enterprise DSA Commission or Brokerage 382750/- 194H 12 Subham Computer Commission or Brokerage 47732/- 194H 13 Sun Enterprises Commission or Brokerage 17,900/- 194H 14. Super Telecom Commission or Brokerage 4600/- 194H 15 Umesh Mishtri Commission or Brokerage 68,250/- 194H 16 Zainab Commission or Brokerage 10,350/- 194 Total 7,87,182/- 1. Shri Ankit Mansukhbhai Rathod Salary 3,96,000/- 192B 2 Jafar Miyarnahmad Tai Salary 4,91,000/- 192B Total 7,87,182/- 1. Devang A....
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....xpenses be made as parties to whom payment has been made must have shown it as proviso to section 201(1) as inserted by the Finance Act 2012 w.e.f. 01.07.2012 provides 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 section 139. (ii) Has taken into account such sum for computing income in such return of income and (iii) Has paid the tax due on the income declared by him in such return of income, And the person furnishes a certificate to this effect from an accountant in such form. Accordingly, form 26A obtained from r.k. Infratel Limited, is enclosed here with. Thus, no disallowance should be made with regard to payment of Rs.2,19,96,779/- made to R.K. Intratel Limited as said amount is already considered as income by them in their books. Also copy of acknowledgement of return of income filed by M/s M/s R. K. Infrate....
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.... 8. I carefully and thoroughly gone through the submission of the assessee. The reply of the assessee in respect of the payment of Rs.2,19,96,779/- made to M/s R.K. Infratel limited is acceptable...." 13. From the above order of assessing officer, it is vivid that during the assessment proceedings, the assessing officer issued show cause notice to the assessee to explain the reasons of late deposit of TDS amount in the Government Account. In response, the assessee submitted written submissions before the assessing officer stating that deduction of tax at source from payment of rent expenses amounting to Rs.1,07,86,560/-, it is submitted that said payment, exclusively pertains to lease rent paid to M/s R.K. Infratel limited. Details relating to the same are enclosed in a separate chart. Also assessee has duly deposited tax with central government but inadvertently at the time of depositing tax assessee had selected section 194J instead of section 1941. The same is evident on perusal of TDS returns i. e. form 26Q filed with AO. Thus, no separate disallowance is called for as total payment of Rs.2,19,96,779/- made to M/s. R.K Infratel Limited includes rent expense of Rs.1,07,86,....
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....v) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue. When this aspect is examined one has to understand what is prejudicial to the interest of the revenue. The Hon'ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. "prejudicial to the interest of the revenue'' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of....