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TMI Blog2015 (10) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... he has not given a clear finding that there is no deduction of tax. If the case was of short deduction then as per the decision of the Tribunal in the case of SK Tekriwal which was approved by the Jurisdictional High Court [2012 (12) TMI 873 - CALCUTTA HIGH COURT] no disallowance u/s 40(a)(ia) of the Act can be made. Hence this issue that there was only a case of short deduction needs to be verified by the AO. Hence we remit the issue to the file of the AO to examine as to whether there was a case of short deduction or non deduction of tax Non deduction of TDS on amount paid to truck owners as hire charges - Held that:- Assessee submitted that there was some error on the part of the counsel who represented the assessee before the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances of the case the appellant having deducted TDS no disallowance u/s 40(a)(ia) of the Act was called for. Thus the addition was unjustified and the same be deleted. 3. For that in the facts and circumstances of the case the appellant having made short TDS no disallowance u/s 40(a)(ia) of the Act was called for. Thus the addition was unjustified and the same be deleted. 4. For that the appellant craves leave to modify or amend the above grounds or press for new grounds of appeal. ITA No.56/Kol/2012 (Revenue s Appeal): 2. 1 The grounds of appeal in this appeal read as under :- 1. The Ld.CIT(A)-XXXVI, Kolkata erred in law as well as on facts in deleting the addition of ₹ 1,06,92,991/made u/s 40(a)(ia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) noted that the amount payable as shown by the assessee s balance sheet in this regard was ₹ 1,21,33,003.93. Hence the ld. CIT(A) noted that since the assessee has not deducted TDS on the amount payable of ₹ 1,21,33,003.93 he disallowed u/s 40(a)(ia) of the Act and the income of the assessee was enhanced by the amount of Rs,.1,21,33,003.93. Against the above order the assessee and the Revenue are in cross appeals before us. 6. The ld. Counsel of the assessee submitted that the sundry creditors of ₹ 1,21,33,003/cannot be disallowed u/s 40(a)(ia) of the Act without finding out or bringing on record that the said amount represents current year expenditure which is payable. Further when the entire years expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 34,15,298/ 34,584/ 31-03-2009 2. 59,16,222/ 62,252/ 30-09-2009 3. 13,61,471/ 1,793/ Post 30-09-2009 1,06,92,991 6.3. In this regard he submitted that the TDS which was deposited within the due date of filing of return u/s 139(1) of the Act no disallowance can be made u/s 40(a)(ia) of the Act in view of the decision of the Jurisdictional High Court of Calcutta in the case of Virgin Creations in ITAT No.302 of 2011. On the basis of the above the ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of allowing deduction of such sum it should be deemed that the assessee has deducted and paid the tax on such sum before the date of furnishing of return of income by the resident payee. In support of his claim the ld. Counsel of the assessee placed reliance upon the decision of Special Bench of the Tribunal in the case of Bharti Auto Products vs. CIT 37 taxmann.com 37 and the decision of ITAT Agra Bench in the case of Rajeev Kumar Agarwal vs Addl.CIT in ITA NO.337/Agra/2013 dated 29.05.2014. 7. The ld. DR, on the other hand relied upon the orders of the authorities below and has been heard. 8. We have heard both the counsel and perused the records. We find that the ld. Counsel of the assessee is correct in submitting that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies below. In this regard the ld. Counsel of the assessee has given a chart as reproduced above regarding the payment of the hire charges payable. As regards serial no. 1 and 2 in the above chart payment of TDS was made upto the date of filing of the return and the same has to be allowed. Hence we remit this issue to the file of the AO to verify the date of deposit of the TDS in this case and delete the disallowance if the deposit of TDS has been done upto the filing of the return. 8.3. As regards the last item in the above chart, a sum of ₹ 13,61,471/has been claimed to have been deposited after 30.09.2009. In this regard also we agree with the submission of the ld. Counsel of the assessee and give direction that it should be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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