2016 (1) TMI 401 - AT - Income Tax

Disallowance of employees contribution for PF & ESI - Held that - This issue has been decided by the Hon ble Jurisdictional High Court in favour of the Revenue in the case of CIT vs. Gujarat Road State Transport Corporation reported at (2014 (1) TMI 502 - GUJARAT HIGH COURT ) - Decided against assessee Disallowance of expenses u/s.40(a)(ia) - deduction of tax paid after the specific date - contention of the ld.counsel for the assessee is that the TDS was deposited before the due date for filing of return - Held that - The law is well settled, in case the assessee has paid tax before the due date of filing of the return, then disallowance u/s.40(a)(ia) is not called for on the ground that TDS was not paid before the due date specified in the section. The Revenue has not controverted the fact that the assessee has deposited the tax before the due date of filing of the return, therefore we direct the AO to delete the disallowance. - Decided against revenue Short deduction or non-deduction of TDS - disallowance of expenses by invoking the provisions of section 40(a)(ia) - Held that - restore this issue back to the file of AO to verify whether any order u/s.201 has been passed against the assessee. In case, no order has been passed, the AO would decide this issue in the light of the judgement of the Hon ble High Court of Delhi in the case of CIT vs. Ansal Land Mark Township (P) Ltd.(2015 (9) TMI 79 - DELHI HIGH COURT ). Thus, this ground of assessee s appeal is allowed for statistical purposes. Addition u/s.68 - unexplained cash credit - Held that - There were debit and credit entry into the ledger account of the depositor. We find that there are debit entries of ₹ 1,50,000/-, then credit entries of ₹ 50,000/- & ₹ 1 lac, again there is a debit entries of ₹ 20,000/- and there is corresponding credit entry f ₹ 20,000 and again there is a credit entry of ₹ 72,000/- and debit entry of ₹ 72,000/-. The AO has added the entire entry entries of ₹ 3,94,000/- All these transactions have been routed through banking channel. The closing balance is of ₹ 1,52,000/-. We find that the AO has not given set off of these debit entries, when the transaction is routed through banking channel, identity of depositor is established, therefore in our considered view, the AO was not justified in making the disallowance of the entire credit entries amounting to ₹ 3,94,000/- and he ought to have given the set off of the debit entry. Therefore, the addition is sustained to the extent of ₹ 1,52,000/- and rest of the addition is directed to be deleted - Decided partly in favour of assessee.

Issues Involved:
1. Disallowance of additional depreciation
2. Disallowance of employees' contribution to PF & ESI
3. Disallowance of expenses under Section 40(a)(ia) due to late payment of TDS
4. Disallowance of expenses under Section 40(a)(ia) due to short or non-deduction of TDS
5. Addition under Section 68 for unexplained cash credit

Detailed Analysis:

1. Disallowance of Additional Depreciation:
- Issue: The learned CIT(A) erred in confirming the disallowance of additional depreciation of Rs. 1,51,059/-.
- Disposition: The assessee did not press this ground during the hearing, and thus it was dismissed as not pressed.

2. Disallowance of Employees' Contribution to PF & ESI:
- Issue: The learned CIT(A) confirmed the disallowance of employees' contribution for PF & ESI amounting to Rs. 4,73,003/-.
- Analysis: The counsel for the assessee conceded that this issue had been decided in favor of the Revenue by the Hon'ble Jurisdictional High Court in the case of CIT vs. Gujarat Road State Transport Corporation.
- Disposition: Following the jurisdictional High Court's judgment, the ground raised by the assessee was dismissed.

3. Disallowance of Expenses under Section 40(a)(ia) Due to Late Payment of TDS:
- Issue: The learned CIT(A) confirmed the disallowance of expenses amounting to Rs. 18,53,850/- on the ground that TDS was paid after the specified date.
- Analysis: The counsel for the assessee argued that the TDS was deposited before the due date for filing the return of income under Section 139(1). The counsel relied on the decision of the Hon'ble Gujarat High Court in CIT vs. Omprakash R Chaudhary, which held that the amendment has retrospective effect from 01/04/2005.
- Disposition: The Tribunal agreed that if the TDS was paid before the due date of filing the return, disallowance under Section 40(a)(ia) was not warranted. The AO was directed to delete the disallowance, and this ground of the assessee's appeal was allowed.

4. Disallowance of Expenses under Section 40(a)(ia) Due to Short or Non-Deduction of TDS:
- Issue: The learned CIT(A) confirmed the disallowance of expenses amounting to Rs. 18,29,036/- on the ground that the appellant either failed to deduct TDS or deducted and paid short TDS.
- Analysis: The counsel for the assessee contended that no order under Section 201 had been passed against the assessee, and thus disallowance under Section 40(a)(ia) was not applicable. The counsel cited the Delhi High Court's decision in CIT vs. Ansal Land Mark Township (P) Ltd., which held that the second proviso to Section 40(a)(ia) is curative and has retrospective effect.
- Disposition: The Tribunal remanded the issue back to the AO to verify whether any order under Section 201 had been passed. If no such order existed, the AO was to decide the issue in light of the Delhi High Court's judgment. This ground of the assessee's appeal was allowed for statistical purposes.

5. Addition under Section 68 for Unexplained Cash Credit:
- Issue: The learned CIT(A) confirmed the addition of Rs. 3,94,000/- under Section 68 for unexplained cash credit.
- Analysis: The counsel for the assessee argued that the authorities were not justified in making the addition, as confirmations and bank statements of the depositor were provided. The assessee claimed that only Rs. 1,52,000/- received on 17/11/2009 needed explanation, and the rest were transactions squared up on the same date.
- Disposition: The Tribunal found that the AO had not given a set-off for debit entries when the transactions were routed through banking channels, and the identity of the depositor was established. The addition was sustained to the extent of Rs. 1,52,000/-, and the rest was directed to be deleted. This ground of the assessee's appeal was partly allowed.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions given to the AO to reassess certain issues based on the provided evidence and relevant judicial precedents. The order was pronounced on 21st October 2015 at Ahmedabad.

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