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TMI Blog2012 (6) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... e immediately proceeding month for the Assessment Year 2005-06. The books of account are audited and the financial statement and tax deducted at source payable were certified by the auditors having been paid prior to the due date of filing of the return. - CIT(A) therefore, misdirected himself to confuse between "previous year" and the "assessment year" under the mercantile system of accounting which we are inclined to vacate. The assessee had complied with the provisions of Section 40(a)(ia) was therefore entitled to claim deduction of these expenses which are directed to be allowed. Belated serving of order after a gap of two years – Held that:- assessee did not seek to find the delay in serving the order when the demand had already be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and arbitrary should be interfered with in the facts and circumstance of the case. 3. For that the learned Commissioner of Income Tax (Appeals) should have deleted the disallowance of Rs.60,92,836 u/s. 40(a) (ia) of the Income Tax Act, 1961 on the facts and circumstances of the case and is not justified to direct the Assessing Officer to once again examine the TDS details for allowing necessary relief when the basis, due dates, date of payment of TDS, etc. were available in form of a table in the Assessment order itself. Therefore the order of the Commissioner of Income Tax (Appeal) setting aside the matter to the Assessing Officer is incorrect, illogical, bad in law and unsustainable in the facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of sales amounting to Rs.1,15,972. He also considered TDS default for levy of interest u/s.200(1A) amounting to Rs.15,175 which was taken up by the Assessing Officer in separate proceedings. Aggrieved the assessee appealed before the first appellate authority who confirmed the additions u/s.40(a)(ia) and the suppression of sales amounting to Rs.1,15,972 which in turn have been raised by the assessee before us in Grounds No.2 and 3. In the first ground, the assessee has also agitated the non-receipt of the assessment order even after a gap of more than two years which was noted by the learned CIT(A) as assessee not producing any evidence whatsoever in support of the claim that the order was received by the assessee-Company belatedly on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid or payable to the payee. Therefore, it is apparent on the order itself that the assessee was entitled to make the payment of TDS till the due date of filing of the return when the due date of payment of TDS was the first week of the immediately proceeding month for the Assessment Year 2005-06. The learned CIT(A) therefore misconstrued the concept of "previous year" and the "assessment year" subsequent to the impugned Assessment Year which obviously has to be for the subsequent Assessment Year only. The books of account are audited and the financial statement and tax deducted at source payable were certified by the auditors having been paid prior to the due date of filing of the return was noted by the learned CIT(A) in his order therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when, irrespective of the expenses whether paid or payable, the assessee ought to have shown the deduction of tax at source within the financial year itself was confirmed by the learned CIT(A) when he noted that the actual date of payment was in the end of the previous year but before the due date of filing of the return. Similarly, the deduction claimed u/s.43B was to be reconciled with the sales in the impugned Assessment Year when the residual balance in gross sales and net sales was left un-reconciled to the extent of Rs.1,15,972. The learned CIT(A) therefore rightly confirmed that the assessee did not question the finding of unaccounted sales of Rs.1,15,592. He supported the order of the learned CIT(A) on this score as well as the fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CIT(A) that the assessee was entitled to claim deduction of the expenses under the provisions of law which was subjected to deduction of tax u/s.194C, 194H and 194J. On page 5 of the order of the learned CIT(A) a clarity has been identified by the learned CIT(A) itself that for all the payments the due date of payment of tax was the first week of ensuing month after the close of the financial year was allowable to the assessee to be paid before the due date of filing of return u/s.139(1). The learned Counsel for the assessee has relied on the ITAT decision in the case of Bansal Parivahan(Inda) Ltd v. ITO (2011) 137 TTJ (Mum) 319, Kanubhai Ramji Bhai v. ITO (2011) 135 TTJ (Ahd.) 364 which clearly indicate that the intention of the le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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