2017 (12) TMI 744 - AT - Income Tax

Disallowance of expenditure u/s 40(a)(ia) for failure to deduct tax at source - payments outstanding at the end of the year - Held that - We find that the issue is squarely covered in favour of the Revenue by the decision of the jurisdictional High Court in the case of Thomas George Muthoot v. CIT 2015 (7) TMI 810 - KERALA HIGH COURT wherein it was observed that whether disallowance u/s 40(a)(ia) can be made only in respect of payments outstanding at the end of the year has held that the language of section 40(a)(ia) does not warrant any interference that it gets attracted only where the amount remains payable on the last date of the financial year. The Hon ble Supreme Court in the case of Palam Gas Services v. CIT 2017 (5) TMI 242 - SUPREME COURT held that word payable occuring in section 40(a)(ia) not only covers cases where amount is yet to be paid but also those cases where amount has actually been paid. Therefore, we are of the view that there is no merit in the arguments of the assessee that, no disallowance u/s 40(a)(ia), if any, remain payable at the end of the year. The CIT(A) by following the decision of the jurisdictional High Court confirmed the additions made by the A.O. We do not find any error in the order of the CIT(A), hence we are inclined to upheld the finding of the CIT(A) and reject the ground raised by the assessee.

Summary

Issues Involved:
1. Disallowance of expenditure under section 40(a)(ia) for failure to deduct tax at source under section 194C.
2. Additions towards unexplained cash credits in the capital account of partners.
3. Validity of assessment order under section 153C in the absence of seized material.
4. Disallowance of remuneration paid to partners under section 40(b).

Detailed Analysis:

1. Disallowance of Expenditure under Section 40(a)(ia):
The assessee challenged the disallowance of expenditure under section 40(a)(ia) on the grounds that the payees had included the amount in their income and paid tax thereon. The CIT(A) upheld the disallowance by following the jurisdictional Kerala High Court decision in Thomas George Muthoot v. CIT, which held that the language of section 40(a)(ia) does not limit disallowance to amounts payable at the end of the financial year. The Tribunal found no merit in the assessee's argument and upheld the CIT(A)'s decision, citing the Supreme Court's ruling in Palam Gas Services v. CIT, which clarified that section 40(a)(ia) applies to both amounts paid and payable.

2. Additions towards Unexplained Cash Credits:
The assessee had initially challenged the additions towards unexplained cash credits in the partners' capital accounts but later withdrew the grounds before the CIT(A). The CIT(A) confirmed the additions made by the A.O. as the assessee did not press the grounds.

3. Validity of Assessment Order under Section 153C:
The assessee raised an additional ground challenging the validity of the assessment order under section 153C, arguing that no additions could be made in the absence of seized material for assessments which were concluded/unabated as on the date of search. The Tribunal admitted this additional ground and found that the A.O. had made additions without reference to any seized material. The Tribunal noted that the assessments for the years 2006-2007 to 2008-2009 were concluded/unabated as the time limit for issuing notice under section 143(2) had expired before the date of search. Citing the Supreme Court's decision in Sinhgad Technical Education Society v. CIT, the Tribunal held that no additions could be made for concluded/unabated assessments in the absence of incriminating material. The Tribunal set aside the assessments for these years to the CIT(A) for fresh adjudication in light of the seized material.

4. Disallowance of Remuneration Paid to Partners:
The CIT(A) deleted the disallowance of remuneration paid to partners under section 40(b), holding that book profit for the purpose of section 40(b) is the net profit after adjustments as per sections 28 to 44 DB. The Tribunal did not find any error in the CIT(A)'s decision and upheld the deletion.

Conclusion:
The Tribunal allowed the appeals for the assessment years 2006-2007 to 2008-2009 for statistical purposes, remanding the matter to the CIT(A) for fresh adjudication regarding the validity of the assessment under section 153C. The appeal for the assessment year 2010-2011 was dismissed, upholding the disallowance under section 40(a)(ia) and the CIT(A)'s decisions on other issues.