2019 (12) TMI 666 - AT - Income Tax

Deduction u/s 80-IB(10) - HELD THAT - Considering the facts in the present case are identical to earlier years and follow the precedence and direct the AO to grant deduction u/s 80IB(10) Disallowance u/s 40(a)(ia) - non- deduction of TDS on provision for expenses - contentions of the ld. AR that no bills/invoices were raised by the parties. Hence, there is no liability to pay the amount. But as an Accounting Policy, the assessee has made provision in the books of accounts - HELD THAT - we found this disputed issue was dealt by the co-ordinate bench in TE CONNECTIVITY INDIA PVT. LTD. 2016 (5) TMI 1222 - ITAT BANGALORE and SANGHI INFRASTRUCTURE LTD. 2018 (7) TMI 2072 - GUJARAT HIGH COURT where provision was made by assessee for expenses for which bills were not received during year under consideration, no section 40(a)(ia) disallowance could be made for nondeduction of TDS. In the present case, no bills and invoices were raised by the creditors and no liability of payment arose. Hence we, followed the judicial decisions and are of the opinion that the assessee is under no obligation to make payment and no TDS is deducted and accordingly we direct the AO to delete the addition and allow the grounds of appeal of the assessee.

Summary

Issues Involved:
1. Deduction under Section 80-IB(10) of the Income-tax Act, 1961.
2. Disallowance under Section 40(a)(ia) of the Income-tax Act, 1961.
3. Interest levied under Sections 234A and 234B of the Income-tax Act, 1961.

Issue-wise Detailed Analysis:

1. Deduction under Section 80-IB(10) of the Income-tax Act, 1961:
The assessee, a partnership firm engaged in developing and constructing residential and commercial building projects, claimed a deduction under Section 80-IB(10) amounting to ?1,91,93,385 for the assessment year 2014-15. The Assessing Officer (AO) disallowed the deduction proportionately because some residential units exceeded the built-up area of 1500 sq. ft., despite the Tribunal allowing such deductions in earlier years. The CIT(A) confirmed the AO's order. The Tribunal, referencing the Hon'ble High Court of Karnataka's decision in CIT v. SJR Builders, upheld that the assessee would not lose the benefit of deduction entirely and directed the AO to grant the deduction proportionately to the units within the prescribed area.

2. Disallowance under Section 40(a)(ia) of the Income-tax Act, 1961:
The AO disallowed expenses under Section 40(a)(ia) because the assessee failed to deduct tax at source on provisions made for expenses in the books of account. The CIT(A) upheld this disallowance. The Tribunal considered the submissions that no bills/invoices were raised, and the provisions were reversed at the beginning of the next year. Citing the Hon'ble Supreme Court's decision in GE India Technology Centre P. Ltd. and other judicial precedents, the Tribunal concluded that the liability to deduct tax at source does not arise when there is no accrual of income in the hands of the payee. Therefore, the Tribunal directed the AO to delete the addition, allowing the assessee's appeal.

3. Interest levied under Sections 234A and 234B of the Income-tax Act, 1961:
The issue of interest levied under Sections 234A and 234B was not separately analyzed in detail in the judgment, but the overall appeal was allowed in favor of the assessee, implying that the interest levied would also be reconsidered in light of the Tribunal's directions on the primary issues.

Conclusion:
The Tribunal allowed the assessee's appeal, directing the AO to grant the deduction under Section 80-IB(10) proportionately and to delete the addition made under Section 40(a)(ia) due to non-deduction of tax at source on year-end provisions. The order was pronounced in the open court on 27th November 2019.