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TMI Blog2013 (11) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of being heard to the Appellant while framing the assessment. 1.2.While doing so, the ld. CIT (A) also erred in not admitting the additional evidences brought on record by the Appellant; 1.3.It is submitted that in the facts and the circumstances of the case, and in law, the assessment order be held as bad and illegal, having framed in breach of the principles of natural justice. 2. WITHOUT PREJUDICE TO THE ABOVE: 2.1The ld. CIT (A) erred in partly confirming the disallowance of Rs. 3,44,237/-, made by the A.O. comprising of payments by way of commission, professional fees and contractor / sub - contractor charges, by invoking the provisions of section 40 (a) (ia) of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % Motor car expenses (including depreciation) Rs. 1,21,377/- 10% 5.2. While doing so, the CIT(A) erred in: (i) basing his action purely on surmises, conjecture and suspicion; and (ii) by taking into account irrelevant and extraneous considerations while ignoring relevant and material considerations. 5.3. It is submitted that in the facts and the circumstances of the case, and in law, no such disallowance was called for. 5.4.Without prejudice to the above, and in the alternative it is submitted that the disallowances are arbitrary and excessive. 6.1.The ld. CIT (A) erred in confirming the action of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its return of income on 11-10-2005 declaring total income at Rs.24,50,902/-. Assessment was finalised u/s.143(3) of the Income Tax Act,1961(Act) by the Assessing Officer (AO) on 26-12-2007 determining total income of the assessee at Rs. 82.48 Lakhs. 2.1. Before us, Authorised Representative (AR) submitted that Ground of Appeal No. 1 was general in nature. He did not press Ground No.5. So, we dismiss both the Grounds i.e., Ground Nos. 1 & 5. 3. Ground Nos. 2, 3 & 4 of the appeal are about disallowance made by the AO u/s.40(a) (ia) of the Act. During the assessment proceedings, AO found that the assessee firm had deducted the Tax at Source (TDS) late in certain cases, that payment of TDS in some cases to the Government Account had been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the AO was fully justified in disallowing a sum of Rs. 3,44,237/- (i.e. 6,51,947-1,89,830-1,17,880) by invoking the provisions of Section 40(a)(ia) of the Act on account of commission, professional fees and contractor/subcontractor charges paid by the appellant as the TDS on the same was deposited late into the government account, that claim of the assessee about the TDS deducted and paid on time in respect of the payments of Rs. 1,89,830/- and Rs. 1,17,880/- was correct and justified as per the chart prepared by the AO in this regard, that the payments made to this extent were already subjected to TDS and the tax deducted was paid into the government account within the due date prescribed under the Act, that the AO was not justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered while deciding the issue of deduction/deposit of tax as per the TDS provisions. Therefore, in the interest of justice, matter is restored back to the file of the AO to decide the issue afresh in light of the amended provisions. He is directed to afford a reasonable opportunity of hearing to the assessee. Ground Nos. 2-4 are partly allowed in favour of the assessee. 5. Next Ground of appeal is about disallowance of the commission payment made to three parties. During the assessment proceedings AO found that assessee had paid Commission charges amounting to Rs 49,26,274/- on total receipts of Rs 1,06,97, 288/-, that there was disproportionate increase in the Commission paid as compared to last year. He directed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to the above three parties amounting to Rs. 10,43,849/- plus 20% of balance commission payment which worked out to Rs 7,76,485/- was disallowed and added to the total income of the assessee by the AO. 5.1. Against the order of the AO assessee preferred an appeal before the FAA. He requested the FAA to admit additional evidence in this regard. He, after considering the submissions of the assessee and the assessment held that the appellant had failed to furnish either the confirmations or to produce the parties concerned, that sufficient opportunity for this purpose was given to it by the AO. He refused to admit additional evidences filed by the assessee. He finally held that the AO was fully justified in disallowing the claim of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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