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TMI Blog2011 (12) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Commissioner of Income-tax (Appeals) having noted that reopening was done by the Assessing Officer as he examined the appellant's submission dated May 17, 2007 filed during the course of original assessment proceedings wherein details of TDS were given showing that TDS was deducted only on Rs. 89.05 lakhs instead of the entire amount of Rs.1.93 crores, he ought to have held that reopening was done only on the fresh appraisal of facts on record. (II) Disallowance under section 40(a)(ia) of the Act. (1) On the facts and circumstances of the case and as per law the learned Commissioner of Income-tax (Appeals) erred in making disallowance under section 40(a)(ia) of the Act. (2) The appellant submits that the learned Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,54,670 under section 194C of the Act which was payable before the end of the year, i.e., March 31, 2005. The Assessing Officer further observed that as per section 40(a)(ia) of the Act, no deduction is allowable in respect of the expenses incurred as professional or technical services, amounts payable to a contractor or sub-contractor, etc., on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or after deduction, tax has not been paid within the time prescribed, etc. Therefore, the Assessing Officer was of the view that the assessee has not complied with the provisions of section 194C of the Act and the deduction of expenses to the extent of Rs. 1,04,54,670 was not allowable under section 40(a)(ia) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted. If the entire amount of Rs. 1.93 crores was falling within the provisions of section 194C of the Act, then there is no question of "mere change of opinion" and as per the provisions of the Act the assessee was required to deduct tax at source on the entire amount and if the assessee had failed to do so, the necessary action for reopening of the assessment has to be taken. We find no infirmity in the findings of the learned Commissioner of Income-tax (Appeals) and therefore, in the circumstances and facts of the case, the assessee's ground No. I(1) and (2) are dismissed. In ground No. II(1), (2) and (3) the brief facts are that assessee has agitated the addition with the main contention that since the proviso to section 194C(3)(i) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responsible for paying such sums referred to in sub-section (1) or as the case may be, sub-section (2) shall be, liable to deduct income-tax under this section. Therefore, Mr. Shah vehemently argued that the amendment was brought into play with effect from October 1, 2004 and the assessee has not violated any provisions on or after October 1, 2004. Before the said amendment the assessee was not liable to deduct tax at source because none of the payments had exceeded Rs. 20,000. On the other hand, the learned Departmental representative supported the orders of both authorities below and argued that the assessee was aware of the provisions of the Act and therefore, knowingly he managed his affairs to show the payments before October 1, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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