2021 (5) TMI 476 - AT - Income Tax

Section 37(1) expenditure disallowance, 10% estimated expenditure disallowance of cash payment and prior period expenditure disallowance - CIT(Appeals) has followed the tribunal's order in assessee's case in A.Y. 2008-09 restoring the very issues back to the Assessing Officer for his afresh necessary factual verification - HELD THAT - We thus find no merit in the Revenue's instant former grievance as the CIT(Appeals) has followed judicial consistency in issuing necessary verification directions to the Assessing Officer. The Revenue fails in its instant former two substantive grounds therefore. Prior period expenditure disallowance - CIT(Appeals) has followed the tribunal order in A.Y. 2010-11 whilst holding that the assessee had claimed the impugned expenditure because of the fact that the corresponding bills has been received in the relevant previous year only - HELD THAT - We decline the Revenue's argument in view of the fact that the assessee's impugned expenditure has crystallized in its relevant previous year as the recipient had issued the correspondingly bill much later. The third substantive ground is also declined therefore. Addition u/s. 40(a)(ia) - CIT(A) deleted the addition u/s. 40(a)(ia) on the ground that it is a mere provision and hence no tax is deductible at source - HELD THAT - As the impugned sum represents only a provision made by the assessee in the relevant previous year without any corresponding payment or any details of the bills as it could not have deducted TDS in absence of any payee; whatsoever. We thus observe that the assessee/deductor could not have complied with Chapter XVII provisions since such compliance involves the latter party in whose hands the income is admittedly assessed. We thus decline the Revenue's argument seeking to revive 40(a)(ia) disallowance for this precise reason alone. CIT(Appeals) ought to have enhanced the assessee's income since the said expenditure is not an ascertained liability and also his powers are co-terminus with that of Assessing Officer - We find no substance in Revenue's argument since it can held to be an aggrieved party having locus standi to challenge correctness of CIT(Appeals)'s inaction; if any than an action deciding the issue in tax payer's favour. This Revenue's argument is also fails therefore. CIT(Appeals) ought to have upheld the impugned 40(a)(ia) disallowance in the case of short deduction of TDS - Hon'ble Kolkata high court in DCIT Vs. S.K. Takriwal 2012 (12) TMI 873 - CALCUTTA HIGH COURT holds that sec. 40(a)(ia) does not apply its case involving short deduction of TDS. We thus uphold the CIT(Appeals)'s action deleting the impugned disallowance on this last count as well. Revenue's appeal is dismissed.

Summary

Issues:
1. Disallowance of expenditure under section 37(1)
2. Disallowance of cash expenditure under section 37(1)
3. Disallowance of prior period expenditure
4. Disallowance under section 40(a)(ia) for provision made without TDS deduction
5. Enhancement of income due to unascertained liability
6. Disallowance under section 40(a)(ia) for short deduction of TDS

Analysis:

1. The first three substantive grounds raised by the Revenue relate to disallowance of expenditure under section 37(1). The CIT(A) directed the Assessing Officer to verify certain aspects, following judicial consistency. The Tribunal found no merit in the Revenue's grievances as the directions for verification were deemed necessary. The Revenue's appeal on these grounds was dismissed.

2. The issue of disallowance of prior period expenditure amounting to ?9,10,000 was addressed next. The CIT(A) based the decision on a tribunal order from a previous assessment year, stating that the expenditure had crystallized in the relevant previous year. The Tribunal rejected the Revenue's argument, upholding the CIT(A)'s decision regarding this disallowance.

3. Moving on to the issue of disallowance under section 40(a)(ia) for a provision made without TDS deduction, the Tribunal noted that the sum in question was a provision without corresponding payment or bill details. It was observed that compliance with TDS provisions required involvement of the payee, who was not identified. The Tribunal dismissed the Revenue's argument for reviving the disallowance under section 40(a)(ia) due to non-compliance reasons.

4. The Revenue contended that the CIT(A) should have enhanced the assessee's income due to unascertained liability. However, the Tribunal found no substance in this argument, stating that the Revenue could not challenge the CIT(A)'s inaction unless it directly affected the taxpayer's liability. The Revenue's argument on this issue was also dismissed.

5. Lastly, the issue of disallowance under section 40(a)(ia) for short deduction of TDS was addressed. Referring to a judgment, the Tribunal upheld the CIT(A)'s decision to delete the disallowance based on the specific circumstances involving short deduction of TDS. The Tribunal dismissed the Revenue's appeal on this ground as well.

6. No other grounds were presented, and the Revenue's appeal was ultimately dismissed by the Tribunal on 29th April 2021.