2017 (5) TMI 1521 - AT - Income Tax

Disallowance per se u/s. 40(a)(ia) - non deduction of tds - TDS u/s 194C or 194-I - Held that - There is no evidence on record that assessee has deducted any tax either u/s. 194C or u/s. 194-I. In view of that even though assessee raised the issue in Ground No. 4, whether amounts are covered u/s. 194C or 194-I that dispute is not material for disallowing the amount u/s. 40(a)(ia), as assessee has not made any TDS on the amounts paid. In view of that, the disallowance per se u/s. 40(a)(ia) is warranted. Accordingly, the order of AO is restored - Decided against assessee

Summary

Issues Involved:
1. Reopening of assessment under Section 147 and validity of notice under Section 148.
2. Disallowance under Section 40(a)(ia) for payment towards hire charges.
3. Disallowance of insurance charges and RTA taxes.
4. Disallowance of diesel expenses and own bus maintenance.
5. Disallowance of Sundry Creditors.
6. Disallowance of depreciation claim.
7. Applicability of Section 194C and Section 194-I for TDS on payments.
8. Modification of the CIT(A) order based on a Supreme Court decision.
9. Restoration of the AO's order on disallowance under Section 40(a)(ia).

Analysis:

1. The judgment deals with cross-appeals by the Assessee and Revenue against the order of the Commissioner of Income Tax (Appeals). Despite various notices, the Assessee did not appear, leading to the appeals being considered ex-parte-assessee on merits. The Assessee had filed a return of income for a specific assessment year, which was later reopened under Section 147, resulting in a revised total income determination. The validity of the notice under Section 148 was contested, but the CIT(A) upheld the reopening and related additions.

2. The CIT(A) directed the AO to restrict the disallowance under Section 40(a)(ia) for payment towards hire charges based on a specific case law. Disallowances related to insurance charges, RTA taxes, diesel expenses, and own bus maintenance were also discussed, with some being upheld and others partly allowed. The CIT(A) further addressed the disallowance of Sundry Creditors and the Assessee's depreciation claim.

3. The Assessee contested the reopening of assessment, the disallowance under Section 40(a)(ia), and the applicability of Sections 194C and 194-I for TDS. The Revenue challenged the CIT(A)'s direction regarding the disallowance under Section 40(a)(ia), which was based on a Special Bench decision later reversed by the Supreme Court. The judgment emphasized the lack of TDS by the Assessee, leading to the restoration of the AO's order on the disallowance under Section 40(a)(ia.

4. The judgment concluded by dismissing the Assessee's appeal and allowing the Revenue's appeal, highlighting the restoration of the AO's order on the disallowance issue. The decision was pronounced in open court on a specific date, marking the conclusion of the hearing.