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2014 (7) TMI 512 - AT - Income TaxDisallowance u/s 40(a)(ia) of the Act TDS provision u/s 194C of the Act not complied Held that - The AO disallowed expenses out of the total expenses claimed by the assessee under the head shipping and forwarding expenses on the ground that the assessee failed to deduct tax at source u/s. 194C of the Act - the assessee has raised a plea that the assessee was not liable to deduct tax at source from ₹ 27,14,737/- as the same was reimbursement of expenses made by the assessee to the clearing agent of the assessee - This plea of the assessee was not adjudicated by the CIT(A) thus, the order of the CIT(A) is set aside and the matter is remitted back for fresh adjudication as to whether the assessee was liable to deduct tax at source on amount of ₹ 27,14,737/- paid as reimbursement of expenses to the clearing agent or not Decided in favour of Revenue. Addition as GP on estimated rate of 25% - Suppressed sale Held that - The decision in Prima Ceramics Pvt. Ltd. Vs. DCIT 2014 (7) TMI 203 - ITAT AHMEDABAD followed - The issue of addition made in the income tax case is based on addition made in excise case of the assessee, which is pending in appeal before the Excise and Custom Tribunal - it would be justified to restore the issue in the grounds of the appeal of the assessee to the file of the CIT(A) with direction to decide the afresh in accordance with law on merit in the light of the order of the Excise and Custom Tribunal Decided in favor of Revenue.
Issues Involved:
1. Disallowance under Section 40(a)(ia) due to non-deduction of TDS on shipping and forwarding expenses. 2. Estimation of suppressed and undisclosed sales and the resultant profit. Detailed Analysis: Issue 1: Disallowance under Section 40(a)(ia) The first issue concerns the disallowance under Section 40(a)(ia) due to non-compliance with TDS provisions under Section 194C. The Assessing Officer (AO) disallowed Rs. 27,14,737 out of the total Rs. 40,86,749 claimed as shipping and forwarding expenses, as the assessee failed to deduct TDS. The assessee argued that these were reimbursements to the clearing agent for actual expenses, and TDS was not applicable. The Commissioner of Income Tax (Appeals) [CIT(A)] deleted the disallowance by relying on the Vishakhapatnam Special Bench decision in Merilyn Shipping & Transports Limited, which was later overruled by the Gujarat High Court in the case of Sikandar Khan N. Tunvar. The Tribunal found that the CIT(A) did not adjudicate on whether the provisions of Section 194C applied to the reimbursements. Consequently, the Tribunal remanded the matter back to the CIT(A) to determine if the assessee was liable to deduct TDS on the reimbursement of expenses amounting to Rs. 27,14,737. The CIT(A) is to provide both parties a reasonable opportunity for a hearing before making a fresh adjudication. Issue 2: Estimation of Suppressed and Undisclosed Sales The second issue pertains to the estimation of suppressed and undisclosed sales and the resultant profit. The AO added Rs. 1,68,70,442 as gross profit at a rate of 25% on the suppressed sales of Rs. 6,74,81,767, based on findings by the Central Excise authorities. The CIT(A) modified this estimation, excluding gas expenses and depreciation, and applied a net profit ratio of 16.54%, resulting in an undisclosed profit of Rs. 1,11,59,372, thereby deleting Rs. 57,11,070 from the AO's addition. Both the Revenue and the assessee appealed this decision. The Tribunal noted that in a similar case (Prima Ceramics Pvt. Ltd. Vs. DCIT), the issue was remanded for fresh consideration in light of the pending decision by the Excise and Custom Tribunal. Following this precedent, the Tribunal remanded the issue back to the CIT(A) for fresh adjudication, directing the CIT(A) to consider the outcome of the Excise and Custom Tribunal's decision and to provide a reasonable opportunity for a hearing to both parties. Conclusion: The appeals of both the Revenue and the assessee were allowed for statistical purposes, with the matters remanded to the CIT(A) for fresh adjudication. The CIT(A) is instructed to provide reasonable opportunities for hearings and to consider the relevant legal precedents and pending decisions in related cases. The order was pronounced on June 20, 2014, at Ahmedabad.
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