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2016 (1) TMI 683 - AT - Income TaxDisallowance u/s.43B - excise demand - CIT(A) deleted the addition - Held that - Once the company makes the payment, whether under protest or otherwise, by debting Profit & Loss account or by showing in the Balance Sheet or as contingent liability the same will be available as deduction u/s 43B on making payment. Further, in the case of Glaxo Smithline Consumer Healthcare Ltd. ITA 2007 (7) TMI 334 - ITAT CHANDIGARH it has been held that the Section 43B is not restrictive of prohibiting section by the Revenue but it is equally an enabling provision under which deductions are allowed on the payment of duties and taxes. In other words, the provision of Section 43B overrides the method of accounting consistently followed and provides for the deduction of statutory liabilities in the year of payment irrespective of the year in which the liability is incurred. - Decided in favour of assessee Disallowance on account of Panchayat tax - CIT(A) deleted the addition - Held that - We find that the expenses on account of panchayat tax was debited under the head prior period expenses by the Auditor of the Company. We further note that the said expenses were crystallized during the year upon the assesee being served a notice of demand. Though, the some part of the demand pertained to earlier years, we are in full agreement with the conclusion drawn by the CIT(A) on this point that the expenses pertain to current year as the notice of demand was received during the current year which is consistent to the practice followed by the assessee - Decided in favour of assessee Disallowance on account of foreign commission - non deduction of tds - CIT(A) deleted the addition - Held that - We find that the assessee has made payment of export commission which was directly remitted out of the country as the non resident agent based and operated outside the country and no part of the income on account of the export commission arose in India. In the Circular No.23 dated 23/07/1969 and Circular No.786 dated 07.02.2000 issued by CBDT, it has been provided that no TDS was required to be deducted from the export commission where the non resident agent operated from the outside of the country and the payment is remitted directly abroad. We also note that the similar issue cropped up in the A.Y. 2007-08 in the assessee s own case which was decided in favour of assessee
Issues:
1. Disallowance under section 43B of the Act 2. Disallowance on account of Panchayat tax 3. Disallowance of foreign commission Issue 1: Disallowance under section 43B of the Act: The appeal filed by the Revenue challenged the CIT(A)'s order deleting the disallowance of Rs. 3,71,42,093 under section 43B of the Act. The assessee claimed this amount on a payment basis after adjusting a refund against an excise duty demand. The AO rejected the claim stating the excise demand was penal in nature. However, the CIT(A) allowed the deduction, emphasizing that the amount was not claimed in earlier years under section 43B. The ITAT upheld the CIT(A)'s decision, citing precedents that support deductions under section 43B on payment basis, regardless of accounting method. The ITAT dismissed the Revenue's appeal on this issue. Issue 2: Disallowance on account of Panchayat tax: The dispute involved the disallowance of Rs. 3,66,000 related to Panchayat tax. The AO disallowed the amount as prior period expenses, but the CIT(A) ruled in favor of the assessee, stating the liability crystallized during the year. The ITAT agreed with the CIT(A), noting that the notice of demand was received during the year, aligning with the assessee's practice. Consequently, the ITAT upheld the CIT(A)'s decision and dismissed the Revenue's appeal on this ground. Issue 3: Disallowance of foreign commission: The third issue concerned the disallowance of Rs. 29,382 on foreign commission by the AO under section 40(a)(i) for non-compliance with TDS provisions. The CIT(A) reversed this disallowance based on Circulars exempting TDS on export commission remitted abroad. The ITAT concurred with the CIT(A), emphasizing that no TDS was required as the non-resident agent operated outside India. The ITAT referred to a previous decision in favor of the assessee and dismissed the Revenue's appeal on this issue. In conclusion, the ITAT upheld the CIT(A)'s decisions on all three issues, dismissing the Revenue's appeal in its entirety.
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