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TMI Blog2016 (4) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the appeal are as under:- 1. That the learned ACIT Circle 5, Jaipur as well as learned CIT (Appeals II), Jaipur both have erred in law and on facts by disallowing/confirming the disallowance of rent paid of ₹ 131280 and hence the unjustified addition is to be set right by your Honor. 2. That in view of factual and legal position unless the assessee appellant is declared defaulter u/s 201(1 A) of the Act, disallowance of expenses done without making TDS u/s 40(a)(ia) of the Act, could not be made. Therefore the disallowances to be deleted. 3. That as per submissions made to the learned assessing authority and again the factual and legal submissions made to the learned CIT (Appeals II), Jaipur and further submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onetary limit specified in section 44AB, was required to deduct tax source for rent paid amounting to ₹ 1,31,280/-. It has been stated that TDS could not be deducted because the landlord insisted so, since no tax was payable on his total income. The appellant has submitted a copy of the acknowledgment of the return of income of the appellant which shows that refund was due. The second proviso to Sec 40(a)(ia) has been introduced by the Finance Act, 2012 and is effective from 1/4/2013. Therefore, it is not applicable to this assessment year. Also, the proviso to Sec 201(1) has been introduced by the Finance Act, 2012 and is effective from 1/7/2012. Therefore, it is not applicable to this assessment year. It is therefore, held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given in the case of Hindustan Coca Cola Beverages Pvt. Ltd. He further submitted that in addition to these cases Honorable ITAT Agra Bench in the case of Rajeev Kumar Agarwal Vs. Addl. Commissioner of Income Tax (2014) 34 ITR (Trib) 479 (Agra) has held that unless the assessee is not declared defaulter as per the first proviso to section 201(tA) which was introduced by the Finance Act 2012 then the second proviso to section 40(a)(ia) would not be applicable. It is a case where there is no loss occurred to the exchequer and hence the assessee would not be treated as assessee in default. Therefore if the assessee is not a defaulter under section 201(1 A) of the Act then the second proviso to section 40(a)(ia) would not be applicable. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income Tax-I V/s. Ansal Land Mark Township (P)Ltd. on 26.08.2015 (ref. TAXMAN Vol.234 page 825) clearly says that Second Proviso to section 40(a)(ia) is declaratory and curative and it has retrospective effect from 1.04.2005. In this case it was held that where assessee made payments to a resident without deducting tax at source under section 194J and since payee had filed return and offered sum received from assessee to tax, impugned disallowance made under section 40(a)(ia) deserved to be deleted- Held, yes [Paras 13 and 14]. The facts of the case of the assessee -appellant are squarely covered by above stated decisions and therefore the disallowance made of ₹ 131280/- is totally illegal and unjustified and hence is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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