2016 (7) TMI 271 - AT - Income Tax

Revision u/s 263 - non deduction of tds towards rent and hire a charge - A.R.submitted that the assessee has incurred the expenditure towards rent and hire a charge which was paid before the end of the financial year - Held that - We find force in the arguments of the assessee for the reason that in view of the special Bench decision of ITAT, Visakhapatnam in the case of Merilyn Shipping & Transporters(2012 (4) TMI 290 - ITAT VISAKHAPATNAM ) no disallowance can be made u/s 40(a)(ia) of the Act, once particular expenditure has been paid during the same financial year. In the present case on hand, the assessee has filed a paper book containing financial statements for the relevant financial year. On perusal of the financial statements, we noticed that the assessee has incurred expenditure under the head rent and hire charges and the same have been completely paid during the same financial year. Even for a moment, assumed that the assessment order is erroneous, it is not prejudicial to the interest of revenue, as the issue raised by the CIT towards disallowance u/s 40(a)(ia) of the Act is not disallowable, because the assessee has proved that the impugned expenditure is paid during the same financial year. Therefore, we are of the view that the assessment order passed by the A.O. is not erroneous, in so far as it is prejudicial to the interest of the revenue, as there is no loss of revenue on account of non compliance with TDS provisions as the expenditure is not disallowable under sec. 40(a)(ia) of the Act in view of ITAT, Special Bench decision. The CIT without appreciating the facts revised the assessment order. Hence, we set aside the order passed by the CIT u/s 263 of the Act and restore the order passed by the A.O. u/s 143(3) of the Act. - Decided in favour of assessee

Summary

Issues:
1. Revision of assessment order under section 263 of the Income Tax Act, 1961 for the assessment year 2009-10.
2. Examination of net profit and TDS on rent and hire charges by the Assessing Officer.
3. Jurisdiction of the Commissioner of Income Tax (CIT) to revise the assessment order.
4. Applicability of section 40(a)(ia) of the Act regarding TDS on expenditure.
5. Compliance with TDS provisions and its impact on the assessment.

Analysis:

1. The appeal was filed against the order of the CIT, Visakhapatnam, dated 11.6.2013, under section 263 of the Income Tax Act, 1961, for the assessment year 2009-10. The CIT proposed to revise the assessment order due to certain omissions and commissions noticed in the assessment records, specifically related to low net profit declared by the assessee and non-deduction of TDS on rent and hire charges amounting to ?38,53,448.

2. The assessee contended that the assessment order was not erroneous as the Assessing Officer (A.O.) had examined the issue of TDS on rent and hire charges during the assessment process. The A.O. had accepted the explanations and completed the assessment based on the details provided. The CIT, however, held that the A.O. failed to verify the TDS compliance and low net profit, leading to an erroneous assessment prejudicial to the revenue's interest.

3. The Tribunal found that the A.O. had conducted a detailed enquiry into the net profit and TDS issues during the assessment. The CIT's decision to revise the assessment order was based on a lack of proper enquiry, despite the A.O. examining the relevant issues thoroughly. The A.O. had issued a detailed questionnaire, and after being satisfied with the explanations, accepted the income returned by the assessee.

4. Regarding the applicability of section 40(a)(ia) of the Act, the Tribunal noted that the assessee had paid the expenditure on rent and hire charges within the same financial year, as per the decision in the case of Merilyn Shipping & Transporters Vs ACIT. Therefore, no disallowance could be made under section 40(a)(ia) as the expenditure was paid during the same financial year, eliminating the loss of revenue.

5. The Tribunal concluded that the assessment order was not erroneous or prejudicial to the revenue's interest, as the A.O. had appropriately examined the issues raised by the CIT during the assessment process. The CIT's decision to revise the order was deemed incorrect, and the original assessment order passed by the A.O. under section 143(3) was restored, resulting in the appeal filed by the assessee being allowed.

This detailed analysis highlights the key arguments, considerations, and conclusions drawn by the Tribunal in response to the issues raised in the appeal against the CIT's order for the assessment year 2009-10.