9911796707
TMI Blog2011 (4) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... d car maintenance against which assessee has already paid FBT. X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the date of filing of return of income, this ground raised by the appellant is not maintainable. The Annual Report of the appellant also could not bring the facts and material on record regarding the amount disallowed in the statement of income by the appellant during he year under appeal, having not claimed in the subsequent year on actual payment basis. Therefore, in my opinion the AO having not made any disallowance and the disallowance having made sumoto by the appellant itself, the ground raised is rejected and decided against the appellant." 4. Before us Ld. Counsel of the assessee submitted that the issues raised in ground Nos.1 and 2 are inter-linked. He submitted that assessee has itself disallowed a sum of Rs.5,31,511/- because payment of TDS deducted from labour charges was made late. Then he referred to page 2 of the compilation and pointed out that as far as interest is concerned, assessee has itself reduced the interest income from the business profits. He made two fold submissions. Firstly, he argued that section 40(a)(ia) has been amended by the Finance Act, 2008 with retrospective effect from 1-4-2005 and now it has been provided that even if TDS on account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf was time barred which ground was not raised before the Commissioner [Appeals]. On these facts, it was held that no additional ground could be raised because there was no appeal pending before the Tribunal. However, in this very case in para-9 it was observed that "when valid appeal filed by the assessee is pending before the Tribunal, there is no doubt that assessee can raise a new or additional ground. That had not been raised either before the Revenue authorities". Thus, it is clear that in the case of Season Rubbers Ltd. vs. DCIT [supra], the only issue was whether an additional ground could be raised when no valid appeal was pending before the Tribunal. In the case before us, first of all, this ground was raised even before the CIT[A] and in any case, the appeal was not fully allowed because other issues were also involved which have been raised before us by way of ground Nos.3 and 4. Therefore, we hold that assessee has correctly raised this ground before us. We further find that section 40(a)(ia) reads as under:- "40[a](ia) any interest, commission or brokerage, [rent, royalty,] fees for professional services or fees for technical services payable to a resident, or amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mobile phone as well as telephone provided at the residence being 25% of the mobile phone charges and 20% of residential telephone charges. The Assessing Officer further disallowed a sum of Rs.1,33,139/- on account of vehicle expenses being 20% of the vehicle expenses for personal use. 9. Before the CIT[A] it was mainly contended that since assessee has already paid Fringe Benefit Tax [FBT] on these amounts, therefore, no such further disallowance could be made. However, ld. CIT[A] did not agree with this submission and decided the issue against the assessee. 10. Before us Ld. Counsel of the assessee submitted that the assessee's factory was located in Daman and, therefore, assessee was required to be constantly in touch with the factory operations and, therefore, disallowance was not justified. In any case, assessee has already paid FBT on these two amounts and, therefore, disallowance was not justified. In this regard he referred to Annexure I of the tax audit report and pointed out that a sum of Rs.1,33,139/- and Rs.76,272/- were considered for FBT purposes under the head "vehicle maintenance and telephone expenditure'. He also relied on the decision of the Chandigarh Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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