2011 (6) TMI 1048

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.... as under: "1. That the Ld. CIT(A) has erred in deleting the addition of Rs. 2,75,544/-, payment towards works contract Rs. 16,72,161/- for Advertisement expenses and Rs. 1,40,90,000/-, payment to HPCL for work contract for lying gas pipeline, which was made by the A.O. by invoking the provisions of section 40(a)(ia) of the Income-tax Act, 1961. 1(a) While deleting the above additions Ld. CIT(A) has not appreciated the fact that Section 40(a)(ia) is very clear on non deductability of payments where TDS is not deducted or is short deducted." 3 In the course of present appellate proceedings, both the Ld. Counsel for the assessee and the Ld. 'DR' conceded before the Bench that the issue involved in the present appeal is sq....

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....rrying on any business or profession and is also not carrying on any business as is referred to in section 49AB(c) of the Income tax Act. The assessee has no sales, turnover or gross receipts from the business or profession as specified under section 44AB, therefore, the provisions of section 44AB are not attracted in this case. The income of the assessee is exempt as admitted by the AO, therefore, the decision of the ITAT, Mumbai 'A' Bench in the case of Indian Magnum Fund (supra) is clearly applicable to the present appeals." 5.1 In the case of Asstt. C.I.T. Vs. India Magnum Fund reported in (2002) 74 TTJ (Mum) 620, the Mumbai 'A' Bench of the Tribunal has held as under:- "It is well-settled that there has to be legal ba....

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.... operational only when profits and gains of business or profession are to be computed for the purpose of computation of total income to meet the requirements of the provisions of s. 4. That being so, any income which is designated as "incomes which do not form part of total income" have nothing to do and cannot be subjected to the provisions of s. 44AB. In view of the discussion in the foregoing paragraphs, the assessee was not liable to obtain any audit report within the meaning of s. 44AB. For this reason, the impugned order of the CIT(A) canceling penalty under s. 271B cannot be interfered with." 5.2. Respectfully following these Tribunal decisions, this ground of appeal filed by the assessee is allowed." 6.1. Thus, respectfu....