2023 (8) TMI 1500

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.... Income-tax Act, 1961 (in short 'the Act') dated 26.12.2017 for assessment year 2015-16. The assessee has assailed the impugned order on the following grounds of appeal before us : "1. In the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals), NFAC has erred in confirming disallowance of Rs.15,89,324/- u/s.40(a)(ia) of the Income-tax Act, 1961. 2. In the facts and circumstances of the case the Ld. Commissioner of Income Tax (Appeals) has erred in not giving proper opportunity while deciding the appeal especially by relying on the notices issued during pandemic Covid-19. 3. The impugned order is bad in law and on facts. 4. The appellant reserves the right to add, a....

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....ing the appellate proceedings, notice of hearing were issued on 06-01-2021, 17-03-2022 and 25-11-2022 under section 250 of the Act to the assessee, no written submissions were made by the appellant. Therefore, the appeal is disposed after considering the submission of the appellant, facts on record and position of law. During the course of assessment proceedings, the assessing officer has observed that assessee company has paid interest amounting to Rs.52,97,748.56/- to Reliance Capital and DHFL. The assessing officer has issued show cause notice in respect of the non-deduction of TDS to the assessee. However, the assessee failed to submit any supporting document during the course of assessment proceedings. During the appellate proceedings,....

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....ate its said claim by placing on record any evidence in support thereof. Accordingly, the AO observing that the assessee had failed in complying with its statutory obligation of deducting tax at source on the aforesaid amount of interest paid to the NBFC's, thus triggered the provisions of Section 40(a)(ia) of the Act and worked out a disallowance of Rs.15.89 lacs (supra). 8. Although we principally concur with the Ld. AR that in case the interest paid by the assessee company to the aforementioned NBFCs was included by them in their respective returns of income for the year under consideration and subjected to tax in their hands, then the assessee company could not be deemed as an assessee-in-default, but at the same time in absence of a....

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....le or any part of the tax in accordance with the provisions of this Chapter on the sum paid to a 84[payee] or on the sum credited to the account of a 84[payee] shall not be deemed to be an assessee in default in respect of such tax if such 84[payee]- (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 as may be prescribed:" On a conjoint perusal of the aforesaid statutory provisions, it transpires that the concession carved out in the "2nd proviso" to S....

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....countants in the prescribed form i.e in "Form 26A" r.w 31ACB, certifying that the respective payees had fulfilled all the conditions mentioned in the "1st proviso" to Sub-section (1) to Section 201 of the Act, but the Ld. AR on being queried during the course of hearing of the appeal had candidly admitted that the said certificates had till date have not been obtained by the assessee from the said payees. In so far the reliance placed by the ld. AR on the order passed by the ITAT in the case of RKP Company Vs. ITO, Ward-1, Korba, ITA No. 106/RPR/2016, dated 24.06.2016, the same being distinguishable on facts would not assist the case of the assessee company. We, say so, for the reason that a perusal of the record in the present case before ....