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2020 (6) TMI 504 - AT - Income TaxTDS u/s 194H - Disallowance u/s. 40(a)(ia) - Commission payment - HELD THAT - The perusal of the details of the commission paid by the assessee, reveals that out of the total commission which has been disallowed u/s 40(a)(ia), includes the amounts paid to Anuj Kumar, Surya Kumar, Mukesh Tyagi and Krishna Dayal which individually are below ₹ 10,000/- each and therefore we find force in the argument of the Ld AR that on those payments assessee was not required to deduct TDS u/s. 194H - same cannot be disallowed u/s 40(a)(ia) of the Act. We accordingly direct its deletion. As far as the amounts paid to other persons in the list are concerned, we find the payments to be in excess of ₹ 10000/- each. We find that Finance (No.2) Act has made amendment to section 40(a)(ia) of the Act w.e.f. 01.04.2015. Various benches of the Tribunals including the Delhi Benches of the Tribunal, have held the amendment made by Finance (No 2) Act to be curative in nature. We further finds the coordinate bench of the Tribunal in the case of R.H. International Vs. ITO 2019 (5) TMI 616 - ITAT DELHI has held that disallowance u/s. 40(a)(ia) of the Act be restricted to 30% of the expenses paid as against 100% because amended provision is curative in nature and the provisions should be applied retrospectively. - Appeal filed by the assessee is partly allowed.
Issues:
Disallowance of commission/incentives paid, Opportunity of being heard not provided, Non-filing of documents before AO, Disallowance of commission due to non-deduction of TDS, Applicability of section 40(a)(ia) of the Act, Restriction of disallowance to 30% of expenses. The judgment pertains to an appeal filed by an individual assessee against the order of the Commission of Income Tax relating to the assessment year 2014-15. The assessee, engaged in trading in fabric and job work, filed the return of income declaring total income. The assessment was framed under section 143(3), disallowing an amount under section 40(a)(ia) of the Act. The CIT(A) dismissed the appeal of the assessee, leading to the current appeal before the ITAT Delhi. The main issue raised in the appeal was the disallowance of commission/incentives paid to employees and parties amounting to a specific sum. The assessee contended that the disallowance under section 40(a)(ia) was not applicable as TDS was not deducted on the commission paid during the financial year. However, the AO and CIT(A) upheld the disallowance. The ITAT Delhi examined the details of the payments and held that for payments below a certain threshold, TDS deduction was not required, thus directing the deletion of disallowance for those payments. For payments exceeding the threshold, the ITAT restricted the disallowance to 30% of the expenses based on the curative nature of the amendment to section 40(a)(ia) by the Finance Act. Regarding the opportunity of being heard, the assessee argued that the CIT(A) did not provide a reasonable opportunity for rebuttal, especially concerning the remand report and notices allegedly not delivered. However, the ITAT did not find any merit in this argument as the focus of the appeal was primarily on the disallowance of commission. The ITAT also addressed the contention that certain documents were not filed before the AO to justify the commission paid. The ITAT's decision primarily revolved around the applicability and interpretation of section 40(a)(ia) of the Act in the context of TDS deduction on commission payments. In conclusion, the ITAT partially allowed the appeal, directing the deletion of disallowance for payments below a specified threshold and restricting the disallowance to 30% of expenses for payments exceeding that threshold. The judgment highlighted the curative nature of the amendment to section 40(a)(ia) and its retrospective application, emphasizing the need for TDS compliance in such transactions.
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