2018 (2) TMI 594 - AT - Income Tax

Disallowance u/s 40(a)(ia) - additions due to TDS default - Held that - We hold that the second proviso to section 40(a)(ia) is applicable with retrospective effect. Consequently if recipient of the amount has considered the same for computation its income offered to tax then no disallowance is called for u/s 40(a)(ia) of the Act. See CIT vs. Ansal Landmark Township Pvt. Ltd. (2015 (9) TMI 79 - DELHI HIGH COURT) The assessee filed the additional evidence in support of its claim that the recipient have included this amount in the income offered to tax however, the CIT(A) declined to admit the additional evidence. We find that the additional evidence filed by the assessee can be verified by the AO from the record of the Department or otherwise. We admit the additional evidence and direct the AO to verify the additional evidence filed by the assessee and in case the AO is satisfied with the evidence filed by the assessee that the recipient of the amounts have considered the same while computing their income offered to tax then, in view of the second proviso to section 40(a)(ia) of the Act no disallowance can be made u/s 40(a)(ia). Appeal of the assessee is allowed for statistical purpose.

Summary

Issues:
1. Disallowance of expenditure under section 40(a)(ia) of the Income Tax Act, 1961.
2. Admissibility of additional evidence before the CIT(A).

Issue 1: Disallowance of Expenditure under Section 40(a)(ia):
The appeal by the assessee contested the disallowance of a sum of ?43,15,295 under section 40(a)(ia) for non-deduction of TDS on advertisement and publicity expenditure. The assessee argued that since the recipients had already included the amounts in their taxable income, no disallowance was warranted. The assessee relied on the second proviso to section 40(a)(ia) and presented form 26A as additional evidence. However, the CIT(A) rejected the additional evidence and upheld the disallowance. The Tribunal considered divergent views by different High Courts on the retrospective or prospective effect of the second proviso. Citing the decision of the Hon’ble Delhi High Court, the Tribunal held that the second proviso applied retrospectively, and if the recipient had considered the amount for tax computation, no disallowance was justified under section 40(a)(ia).

Issue 2: Admissibility of Additional Evidence:
The assessee submitted additional evidence before the CIT(A) to demonstrate that the recipients had included the disputed amounts in their taxable income. The CIT(A) refused to admit the additional evidence. However, the Tribunal found that the evidence could be verified by the Assessing Officer from department records. Considering the facts and circumstances, the Tribunal admitted the additional evidence and directed the AO to verify it. If the AO confirmed that the recipients had accounted for the amounts in their income, no disallowance could be made under section 40(a)(ia). Consequently, the appeal of the assessee was allowed for statistical purposes.

In conclusion, the Tribunal ruled in favor of the assessee, allowing the appeal against the disallowance of expenditure under section 40(a)(ia) of the Income Tax Act, 1961. The Tribunal held that the second proviso to section 40(a)(ia) applied retrospectively, and if the recipients had considered the amounts for tax computation, no disallowance was warranted. The Tribunal also admitted additional evidence submitted by the assessee for verification by the Assessing Officer, ensuring a fair assessment of the situation.