2015 (8) TMI 918 - AT - Income Tax

Addition of amount paid/payable to the vendor i.e. Star India Private Limited ( Star India ) u/s 68 - Star India did not respond to the notice issued by the learned AO under section 133(6) - Held that - Disallowance has been made and upheld by the authorities below merely on the basis that the Star India Pvt. Ltd. did not bother to respond the notices issued under sec. 133(6) of the Act by the Assessing Officer to them. The authorities below have not bothered to examine the veracity of the documents filed by the assessee in support of the genuineness of the claimed payment made to Star India Pvt. Ltd. It is a well established position of law that genuineness of the claim cannot be denied merely because the party to whom payment claimed to have been made is not responding the notice issued by the Assessing Officer especially when the assessee claimant had filed sufficient documents in support of the claimed payment. There may be several reasons for a party for non-appearance or non-compliance before the Assessing Officer, for which the assessee cannot be penalized. Though we are aware that it is second round of the appeal before the ITAT, still to meet the end of justice the only option left with us is to set aside the matter to the file of the Assessing Officer to examine the veracity of the documents filed by the assessee in support of the genuineness of the claimed payment of ₹ 4,55,41,557 to Star India Pvt. Ltd. after affording opportunity of being heard to the assessee and decide the issue afresh. It is ordered accordingly. - Decided in favour of assessee for statistical purpose. Non deduction of tax at source under section 40(a)(ia) - no bills or vouchers were filed by the Appellant to substantiate payments made to Star India - Held that - Direction to the Assessing Officer by the Learned CIT(Appeals) to disallow payments made by the assessee under sec. 40(a)(ia) of the Act was a question of taxability of income from a new source of income which has not been considered by the Assessing Officer, hence it was exceeding of jurisdiction by the CIT(Appeals) in a set aside matter by the ITAT in the present case. The decisions relied upon by the CIT(DR) having distinguishable facts are not relevant as main thrust of the Learned CIT(DR) in his contentions is that the Learned CIT(Appeals) has coterminus powers as of the Assessing Officer, hence, he is empowered to do what an Assessing Officer can do for the assessment and the directed disallowance has bearing on the question of pass-through costs. It is, however, not in dispute that the directed disallowance was new source of income, which was not the subject matter of setting aside order by the ITAT, in compliance of which assessment under sec. 254 read with section 143(3) was framed. We thus decide the issue in favour of the assessee with finding that while directing the Assessing Officer to disallow payments made by the assessee under sec. 40(a)(ia) of the Act, the Learned CIT(Appeals) has exceeded her jurisdiction on an issue which was never raised by the Assessing Officer or remained the subject matter of the setting aside order of the ITAT. Similarly, the Learned CIT(Appeals) has also exceeded her jurisdiction by directing the Assessing Officer to initiate penalty proceedings under sec. 201(1) of the Act - Decided in favour of assessee.

Issues Involved:
1. Validity of the appellate order passed by CIT(A).
2. Confirmation of addition made by AO due to non-response from Star India.
3. Consideration of Star India's confirmation filed after the assessment order.
4. Disregard of alternate evidence submitted by the appellant.
5. Applicability of Section 68 for disallowance.
6. Legality of notice issued by CIT(A) for enhancement of additions.
7. Jurisdiction of CIT(A) in enhancing addition under Section 40(a)(ia).
8. Disallowance of payments to Star India without TDS under Section 40(a)(ia).
9. Disallowance of payments to Doordarshan without TDS.
10. Disallowance of payments to other vendors without TDS.
11. Disallowance of payments for supply of materials without TDS.
12. Disallowance of reimbursements to employees without TDS.
13. Disallowance of small payments under Section 40(a)(ia).
14. Applicability of second proviso to Section 40(a)(ia).
15. Direction to initiate penalty proceedings under Section 201(1).
16. Violation of principles of natural justice by CIT(A).

Detailed Analysis:

1. Validity of the Appellate Order:
The appellant argued that the CIT(A)'s order was contrary to the facts and law, based on conjectures and surmises. The tribunal found this ground general and did not require independent adjudication.

2. Confirmation of Addition Due to Non-response from Star India:
The appellant, engaged in advertising services, claimed payments to Star India. The AO added Rs. 4,55,41,557 to the appellant's income due to non-response from Star India to notices under Section 133(6). The CIT(A) upheld this disallowance.

3. Consideration of Star India's Confirmation:
Star India responded to the AO's notice after the assessment order was passed. The appellant argued that this confirmation, along with other evidence, substantiated the payments. The tribunal noted that the AO and CIT(A) did not consider this post-assessment confirmation.

4. Disregard of Alternate Evidence:
The appellant submitted ledger accounts, bank statements, and invoices to substantiate payments to Star India. The tribunal found that the authorities did not verify these documents, instead relying solely on Star India's non-response.

5. Applicability of Section 68:
The appellant contended that Section 68 was inapplicable as there was no outstanding credit balance with Star India. The tribunal agreed, noting that the disallowance was based on assumptions without verifying the evidence provided by the appellant.

6. Legality of Notice for Enhancement of Additions:
The appellant argued that the CIT(A) exceeded her jurisdiction by enhancing the addition under Section 40(a)(ia), which was not part of the original assessment. The tribunal agreed, citing jurisdictional overreach by the CIT(A).

7. Jurisdiction in Enhancing Addition Under Section 40(a)(ia):
The CIT(A) directed the AO to disallow payments under Section 40(a)(ia), which was not the subject of the original assessment. The tribunal found this enhancement illegal and beyond the CIT(A)'s jurisdiction.

8. Disallowance of Payments to Star India Without TDS:
The appellant argued that payments to Star India were exempt from TDS as per CBDT Circulars. The tribunal noted that the CIT(A) ignored these submissions and the evidences provided, leading to an unjust disallowance.

9. Disallowance of Payments to Doordarshan Without TDS:
The CIT(A) disallowed payments to Doordarshan, citing a nil withholding certificate issued to a different entity. The appellant argued that such payments were exempt from TDS. The tribunal found the CIT(A)'s disallowance unjustified.

10. Disallowance of Payments to Other Vendors Without TDS:
The appellant provided lower tax withholding certificates from vendors, which were ignored by the CIT(A). The tribunal found the disallowance based on assumptions without verifying the provided documents.

11. Disallowance of Payments for Supply of Materials Without TDS:
The CIT(A) disallowed payments for materials, presuming them subject to withholding tax. The tribunal found this disallowance based on presumptions without proper verification.

12. Disallowance of Reimbursements to Employees Without TDS:
The appellant argued that reimbursements were not income and thus not subject to TDS. The tribunal noted that the CIT(A) ignored the evidence provided, leading to an unjust disallowance.

13. Disallowance of Small Payments Under Section 40(a)(ia):
The CIT(A) disallowed payments below the threshold for TDS. The tribunal found this disallowance unjustified.

14. Applicability of Second Proviso to Section 40(a)(ia):
The appellant argued that no disallowance was warranted under the second proviso to Section 40(a)(ia). The tribunal agreed, noting the proviso's applicability.

15. Direction to Initiate Penalty Proceedings Under Section 201(1):
The CIT(A) directed the AO to initiate penalty proceedings, which the appellant argued was beyond her jurisdiction. The tribunal agreed, finding this direction unjustified.

16. Violation of Principles of Natural Justice:
The appellant argued that the CIT(A) passed the order without giving adequate opportunity to be heard. The tribunal found that the authorities below did not properly verify the evidence provided, violating natural justice principles.

Conclusion:
The tribunal allowed the appeal partly, setting aside the matter to the AO for fresh examination of the evidence regarding the payment to Star India and finding the CIT(A) exceeded her jurisdiction in enhancing the addition and directing penalty proceedings.

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