9911796707
TMI Blog2010 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... d no specific issues involved, they have become non-consequential. In the remaining grounds, the cruxes and substances of the issues raised are, for the sake of clarity, reformulated as under: (i) the CIT (A) was not justified in deleting the addition of Rs.13,28,529/- on account of excess claim of deduction u/s 80IB of the Act; and (ii) the CIT (A) was not justified in deleting the addition of Rs.49,68,071/- made u/s 40(a)(ia) of the Act. C.O. No. 036/10 - By the assessee: 3. As could be seen from the Cross Objection filed, the assessee had elaborately and exhaustively given the narration running into 55 pages under the caption "Memorandum of Cross Objection" which presumably objected to the Revenue's appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited supra, we are of the firm view that the assessee was prevented by a reasonable cause in furnishing its Memorandum of Cross Objection within the stipulated time frame and, thus, the delay of five days is, therefore, condoned. 6. With regard to the deletion of the addition of Rs.13,28,529/- on account of excess claim of deduction u/s 80IB of the Act by the Ld. CIT (A), it was contended by the Revenue that the CIT (A) erred in deleting the addition, relying on the order of the Hon'ble Tribunal in the assessee's own case in ITA No.1097/B/2006 dated: 16.11.2007 for the AY 2003-04, without appreciating the very fact that the Hon'ble Tribunal had restored the issue on the file of the AO for determining the interest which was required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng loans were used for making deposits, then such interest will be reduced from the interest received from bank deposits for the purpose of computing deduction under section 80B (sic) 80IB." 6.3. This crucial observation of the Hon'ble Tribunal had not been taken note of by the Ld. CIT (A), perhaps by over-sight, while deciding the issue under dispute. 6.4. In view of the above and in conformity with the finding of the Hon'ble Tribunal in the assessee's own case for the AY 2003-04 cited supra wherein in an identical issue the matter was remitted back on the file of the AO with a direction (at the cost of repetition) "In case the assessee is able to demonstrate that interest bearing loans were used for making deposits, then s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as under: "S.40..................... (ia) any interest, commission or brokerage (rent, royalty,) fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction,(has not been paid,- (A) in a case where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-section (1) of section 139, or (B) in any other case, on or before the last of the previous yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DS has been deposited before the due date for filing the return, the addition deserves to be deleted." 7.4. To be precise, the finding of the Ld. CIT (A) was rather vague and intriguing. No doubt, the assessment was concluded prior to the amendment of the provisions of s.40(a)(ia) of the Act and on the basis of existing provisions, the AO had resorted to disallow the said claim. The Finance Act 2008 substituted clause (ia) of s.40 with retrospective effect from 1.4.2005 has not been thoroughly analyzed by the Ld. CIT (A) as to whether the assessee was entitled to have the benefit of getting the deletion of the addition made by the AO w.r. to the provisions of s.40(a)(ia) of the Act at that relevant time? To clear the suspicion of ai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
