2012 (9) TMI 680 - AT - Income Tax

Disallowance u/s 40(a)(ia) - Assessee took on vehicles on lease and paid lease money By invoking Sec. 40(a)(ia), assessee have to deduct TDS from the lease money shown as payable - Held that - Following the decision in case of Merilyn Shipping & Transport (2012 (4) TMI 290 - ITAT VISAKHAPATNAM) the provisions of sec. 40(a)(ia) are applicable only to the amounts of expenditure which are payable as on 31st March of every year and it cannot be invoked to disallow the expenditure which had been actually paid during the previous year without deduction of TDS. Therefore to recompute the amount of disallowance issue remand back to AO Capital Gain AO compute capital gain u/s 50C adopting the stamp duty value as sales consideration Original return was accepted u/s 143(1), therefore AO invoke Sec. 147 Held that - AO was well within his powers to compute the capital gain during the u/s 147 proceedings. Matter has not been controverted by the assessee by bringing any positive material on record. Therefore appeal decides in favour of revenue.

Issues Involved:
1. Applicability of Section 124 vs. Section 127 of the IT Act for case transfer.
2. Applicability of Section 194-I and Section 40(a)(ia) of the IT Act on lease money for vehicles.
3. Disallowance of telephone and vehicle expenses.
4. Addition on account of long-term capital gains.
5. Legality of penalty initiation for interest on income tax refund.

Detailed Analysis:

1. Applicability of Section 124 vs. Section 127 of the IT Act for case transfer:
- The appellant argued that the CIT(A) erred in holding that Section 124 was applicable instead of Section 127 for the direct transfer of the case by the DCIT Chittorgarh to the ITO Mandsaur. The appellant contended that the transfer was illegal as it was done without reference to the Chief Commissioners and without recording reasons or giving an opportunity to the assessee.
- However, this ground was not pressed by the appellant's counsel during the hearing and was dismissed in limine.

2. Applicability of Section 194-I and Section 40(a)(ia) of the IT Act on lease money for vehicles:
- The assessee paid lease money for vehicles to family members and did not deduct TDS, arguing that lease money does not amount to 'rent' under Section 194-I.
- The Assessing Officer and CIT(A) held that lease money for vehicles amounts to "rent" under Section 194-I, and disallowed expenses under Section 40(a)(ia) for non-deduction of TDS.
- The CIT(A) allowed partial relief by reducing the disallowance for payments below Rs. 1,20,000, confirming a disallowance of Rs. 50,01,100.
- The Tribunal referred to the Special Bench decision in Merilyn Shipping and Transports, which held that Section 40(a)(ia) applies only to amounts payable at the year-end, not to amounts already paid.
- The Tribunal directed the Assessing Officer to recompute the disallowance based on amounts payable at the year-end, allowing the appeal in part for statistical purposes.

3. Disallowance of telephone and vehicle expenses:
- The CIT(A) sustained a lump sum disallowance of Rs. 30,000 for telephone expenses and Rs. 50,000 for vehicle expenses.
- The Tribunal, considering the nature of the assessee's business, directed the Assessing Officer to restrict the disallowance to 1/10th of the expenses incurred under these heads.

4. Addition on account of long-term capital gains:
- The Assessing Officer adopted the value for sale consideration at Rs. 4,36,000 (as per stamp duty valuation) instead of Rs. 1,01,000 shown by the assessee and noted the year of acquisition as 1995-96 instead of 1991-92.
- The CIT(A) confirmed the addition, stating that the assessee's claim of loss on the sale of the plot could not be accepted, and the capital gain was computed in accordance with Section 50C(1).
- The Tribunal upheld the CIT(A)'s decision as the assessee did not provide any positive material to counter the findings.

5. Legality of penalty initiation for interest on income tax refund:
- The CIT(A) did not decide on the legality of the AO's direction to initiate a penalty for Rs. 32,150 received as interest on an income tax refund.
- This issue was not specifically addressed in the Tribunal's order.

Conclusion:
- The appeals were allowed in part for statistical purposes, with specific directions to the Assessing Officer to recompute disallowances and rectify calculation mistakes. The decision on the transfer of cases and penalty initiation was not pressed or specifically addressed.

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