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TMI Blog2015 (10) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... month of March, 2009 the assessee has rightly made TDS in March and deposited it before the due date u/s 139(1) to claim the deduction for the assessment year under consideration. No disallowance can be made u/s 40(a)(ia) in such circumstances. We accordingly uphold the order of CIT(A) on this account. We also observe that even if TDS was liable to be made before March, 2009 and the assessee had deducted it during the year and deposited before the due date of filing return u/s 139 (1), no disallowance could have been made in view of our decision in the case of Rajasthan Art Emporium (2014 (11) TMI 43 - ITAT JODHPUR ) wherein it was held that the amendment made by the Finance Act, 2010 in section 40(a)(ia) is clarificatory in nature. - Deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) TMI 477 - BOMBAY HIGH COURT) wherein even the employees contribution to PF and ESI has been found allowable if paid prior to the due date of filing return u/s 139 (1). The High Court has referred the decision of Supreme Court in the case of CIT vs. Alom Extrusion Ltd. (2009 (11) TMI 27 - SUPREME COURT ). We accordingly reject this ground of appeal also.- Decided against revenue. - ITA No.111/JU/2014 - - - Dated:- 25-9-2014 - SHRI HARI OM MARATHA AND SHRI N.K.SAINI, JJ. For the Appellant : Shri Sandeep Jhanwar For the Respondent : : Shri Jai Singh, DR ORDER Per: Hari Om Maratha: This appeal by the revenue is directed against the order of the CIT(A), Udaipur dated 06.12.2013 pertaining to A.Y 2009-10. 2. Grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiries the commission so paid after deducting tax at source cannot be disallowed. He observed that such commission was paid and allowed in earlier years also. The CIT(A) has also observed that the commission has been credited to parties account on 30th and 31st March as per ledger accounts and the assessee has deducted tax at source at that time and deposited the same within the time allowed for filing the return of income u/s 139(1) of the Income-tax Act, 1961 ['the Act' for short]. There is nothing on record to suggest that the assessee has credited the said sum before 30th or 31st March to the account of party in its books of account. According to him the Assessing Officer has not made out a case where in the enquiries from payee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. He further mentioned that even if the TDS is considered to have been made before March 2009, in view of the provisions of section 40(a)(ia) amended by the Finance Act, 2010, no disallowance can be made if such TDS is deposited prior to due date of filing return u/s 139(1). He placed reliance on the judgement of this bench in case of DCIT vs. Rajasthan Art Emporium, 161/Jodh/2011, (order dated 05/06/2013) wherein the said amendment has been considered to be of clarificatory in nature while dealing with case for the A.Y. 2007-08. Similar view has been expressed by ITAT, Mumbai in the case of Bapusaheb Nanasaheb Dhumal vs. ACIT, 40 SOT 361 (Mumbai). 3. We have heard the rival submission and perused the material on record. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re towards sales promotion expenses against claim of ₹ 4,65,721/- in the earlier year. When asked for the details the AO found that it is incentive paid to 4 employees of the assessee of which incentive of ₹ 1,44,800/- was paid to Mr. Bansraj Shukla who is accountant of assessee. The AO noticed that the accountant did not have any role in sales activity and accordingly disallowed the sum of ₹ 1,44,800/-. In appeal the ld. CIT(A) has deleted the disallowance by pointing out that the payee has been involved in sales activity in preceding years also and no such disallowance was made. He found that this amount has been actually paid and Assessing Officer did not brought anything on record to prove the assessee s claim as incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 on which TDS u/s 194C was made. On this basis ld. AO concluded that expenditure of ₹ 2,50,589/- was a capital expenditure. The CIT(A) has deleted the disallowance by pointing out that disallowance has been made without sufficient basis and without making any enquiry. 6.1 Before us the ld. D.R relied on the assessment order while the ld. A.R supported the order of CIT(A) and submitted that the assessee has not constructed anything new and therefore question of considering it as capital expenditure does not arise. 6.2 We have heard the rival parties and have carefully perused the entire material on record. We are in full agreement with ld. CIT(A) that AO did not point out any good reason to treat the expenditure in question as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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