2013 (11) TMI 720 - AT - Income Tax

Disallowance u/s 40(a)(ia) - TDS deducted after end of financial year - Held that - There is no doubt that TDS was not deposited before the end of the AY. under consideration. But it is also a fact that same was deposited before the due date of filing of the return of income. We find that amended provisions of Section 40(a)(ia) have to be considered while deciding the issue of deduction/deposit of tax as per the TDS provisions. Therefore, in the interest of justice, matter is restored back to the file of the AO to decide the issue afresh in light of the amended provisions. He is directed to afford a reasonable opportunity of hearing to the assessee - Decided in favour of assessee. Disallowance of commission - Principal of natural justice - Held that - reasonable opportunity of hearing was not given to the assessee. From the orders of the AO and the FAA it is clear that assessee was given only two days time and evidences produced by the assessee-firm before the FAA were rejected - issue should have been decided after considering the evidence produced by the assessee. Therefore, in the interest of justice matter is restored back to the file of the AO to adjudicate afresh the issue of disallowance of commission payment to three parties - He is directed to afford a reasonable opportunity of hearing to the assessee-firm - Decided in favour of assessee.

Issues Involved:
1. Opportunity of being heard and admission of additional evidence.
2. Disallowance under Section 40(a)(ia) of the Income Tax Act.
3. Disallowance of clearing and forwarding expenses.
4. Disallowance of commission payments.
5. Ad hoc disallowances of business promotion and motor car expenses.

Detailed Analysis:

1. Opportunity of Being Heard and Admission of Additional Evidence:
The appellant contended that the CIT(A) erred in confirming the assessment without giving sufficient opportunity of being heard and in not admitting additional evidence. However, the Authorized Representative (AR) did not press this ground, and it was dismissed.

2. Disallowance under Section 40(a)(ia) of the Income Tax Act:
The appellant challenged the disallowance of Rs. 3,44,237/- for commission, professional fees, and contractor charges due to late TDS deposit. The Assessing Officer (AO) disallowed the amount as TDS was deposited after the financial year-end. The CIT(A) partially upheld the disallowance but allowed relief for amounts where TDS was timely deposited. The Tribunal found that TDS was deposited before the due date of filing the return and directed the AO to reconsider the issue in light of the amended provisions of Section 40(a)(ia).

3. Disallowance of Clearing and Forwarding Expenses:
The AO disallowed Rs. 24,37,510/- for clearing and forwarding expenses due to late TDS deposit and an additional Rs. 5,17,328/- for non-deduction of TDS. The CIT(A) upheld the disallowance as the appellant failed to rebut the AO's findings with documentary evidence. The Tribunal restored the matter to the AO for fresh consideration, emphasizing the need to consider the amended provisions of Section 40(a)(ia).

4. Disallowance of Commission Payments:
The AO disallowed Rs. 10,43,849/- paid to three parties (Shri Janet D'souza, Verinica John Rodrigues, and Anil V. Patel) and 20% of the remaining commission payments due to lack of evidence of services rendered and disproportionate increase in commission payments. The CIT(A) upheld the disallowance, rejecting additional evidence. The Tribunal found that the appellant was not given reasonable opportunity to produce evidence and directed the AO to reconsider the issue, allowing the appellant to present necessary evidence.

5. Ad Hoc Disallowances of Business Promotion and Motor Car Expenses:
The appellant did not press this ground, and it was dismissed.

Conclusion:
The Tribunal partly allowed the appeal, directing the AO to reconsider the disallowances under Section 40(a)(ia) and the commission payments after giving the appellant a reasonable opportunity to present evidence. The Tribunal emphasized the need to consider amended provisions and ensure justice by allowing the appellant to substantiate its claims. The order was pronounced on 19.4.2013.

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