2013 (11) TMI 311 - AT - Income Tax

Disallowance u/s 40(a)(ia) - Non submission of Form 15H/15G u/s 197A with the office of CIT by the assessee within prescribed limit Held that - Reliance has been placed on the decision of Hon ble Gujarat High Court in case of CIT vs. Valibhai Khanbhai Mankad 2012 (12) TMI 413 - GUJARAT HIGH COURT - When on the basis of the record it is not disputed that the requirements of further proviso were fulfilled, the assesses was not required to make any deduction at source on the payments made to the sub-contractors. If that be our conclusion, application of section 40(a)(ia) would not arise since, as already noticed, section 40(a)(ia) would apply when there is a requirement of deduction of tax at source and such requirement is either not fulfilled or having deducted tax at source is not deposited within prescribed time - Non deposition / submission of Form 15H / 15G is not a ground to disallow expense u/s 40(a)(ia) Decided in favor of Assessee. Disallowance of brokerage expenditure of Rs. 2,75,000/- - Held that - Appellant had submitted the all details of recipients with address and PAN to the A.O. during the course of assessment proceeding. He had deducted the TDS on brokerage. The working of brokerage has been provided - Thus, the liability of brokerage has crystallized on the basis of sale made by the assessee. Thus, it is not a simple provision but calculated on the basis of sale made by the assessee Decided in favor of Assessee.

Summary

Issues:
1. Disallowance of Rs. 81,757 under section 40(a)(ia) of the Income Tax Act.
2. Disallowance of brokerage expenditure of Rs. 2,75,000.

Issue 1: Disallowance of Rs. 81,757 under section 40(a)(ia) of the Income Tax Act:
The Assessing Officer (A.O.) disallowed Rs. 81,757 under section 40(a)(ia) as the assessee had not filed Form No. 15-H for certain individuals to whom interest was paid without deducting and paying TDS. The CIT(A) upheld the disallowance, stating that the responsibility of furnishing such documents within a specified period lies with the assessee, and non-compliance does not entitle the deductor to decide on non-deduction. The appellant argued that Form No. 15 was submitted to the A.O. during the assessment order, citing a relevant case law. The ITAT, following the Gujarat High Court decision, allowed the appeal, emphasizing that the liability to deduct tax at source ceases if certain conditions are met, and failure to comply with document submission requirements does not warrant adverse consequences under section 40(a)(ia).

Issue 2: Disallowance of brokerage expenditure of Rs. 2,75,000:
The A.O. disallowed Rs. 2,75,000 of brokerage expenditure, noting that the provision remained unpaid and unexplained. The CIT(A) confirmed the disallowance, highlighting that the brokerage was not discharged throughout the year, and major liabilities created lacked PAN details. The appellant argued that brokerage was calculated on every sale bill, TDS was deducted, and the liability crystallized based on sales. The ITAT, after reviewing the details provided to the A.O. and considering the nature of the business, reversed the CIT(A)'s decision. It concluded that the liability was calculated based on sales, TDS was deducted, and the brokerage expenditure was inevitable in the appellant's trading business, thereby allowing the appeal.

In conclusion, the ITAT allowed the appellant's appeal partly, overturning the disallowance of both the interest amount under section 40(a)(ia) and the brokerage expenditure. The judgment emphasized compliance with TDS requirements and the crystallization of liabilities based on sales in determining allowable deductions.