2011 (4) TMI 443 - AT - Income Tax

Deduction u/s.80IB - Late payment of TDS - Section 40(a)(ia) has been amended by the Finance Act 2008 with retrospective effect from 1-4-2005 and now it has been provided that even if TDS on account of commission or professional services etc. is paid before the due date specified in sub-sec. 1 of sec.139 even then such payment could be allowed - After the amendment even if tax was paid before the due date of filing of the return u/s.139 1 then no disallowance should be made under this provision - Therefore set aside the order of the ld. CIT A and remit the matter back to the file of the AO with a direction to allow the amount of disallowance on account of commission and labour charges if assessee has paid this sum before the due date of filing of the return. Disallowance of Expenses where FBT has already paid - 25% of mobile expenses 20% of residential phone and 20% of the vehicle expenses - no disallowance could have been made on account of personal expenses incurred on telephone and car maintenance against which assessee has already paid FBT.

Summary

Issues:
1. Disallowance of deduction u/s.80IB
2. Disallowance of TDS on commission and labour charges
3. Disallowance of telephone expenses and vehicle expenses
4. Disallowance of interest charged u/s.234B and 234C

Issue 1 - Disallowance of deduction u/s.80IB:
The Assessing Officer noted a difference in the claim for deduction u/s.80IB due to disallowance u/s.40(a)(ia) and inclusion of interest income. The CIT[A] rejected the appeal, stating that the disallowance was self-imposed by the assessee. However, the Tribunal found the ground valid as raised before the CIT[A]. The Tribunal referred to the amendment in section 40(a)(ia) by the Finance Act, 2008, allowing TDS payment before the due date. Consequently, the disallowance was set aside, directing the AO to verify the payment date and allow the deduction accordingly.

Issue 2 - Disallowance of TDS on commission and labour charges:
The AO disallowed a sum for late TDS payment, which the assessee self-imposed. The CIT[A] upheld this disallowance. However, the Tribunal, considering the FBT already paid by the assessee on these amounts, ruled in favor of the assessee, directing the AO to delete the disallowed amount.

Issue 3 - Disallowance of telephone and vehicle expenses:
The AO disallowed amounts for personal usage of mobile and residential phones, as well as vehicle expenses. The CIT[A] rejected the contention that FBT payment should prevent further disallowance. The Tribunal, citing a similar case, held that no disallowance could be made on expenses already subjected to FBT. Therefore, the Tribunal directed the AO to delete these disallowed amounts.

Issue 4 - Disallowance of interest u/s.234B and 234C:
The Tribunal deemed the levy of interest u/s.234B and 234C as consequential and directed the AO to apply the interest in accordance with the law.

In conclusion, the Tribunal partly allowed the assessee's appeal, overturning disallowances related to TDS, telephone, and vehicle expenses due to FBT payments. The Tribunal also directed the AO to verify TDS payment dates for deduction u/s.80IB and levy interest as per legal requirements.