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TMI Blog2016 (12) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA s order dated 20th March 2013, in the matter of assessment under section 143(3) of the Income Tax At, 1961, for the assessment year 2008-09. 2. In the first ground of appeal, the assessee has raised the following grievance: 1) The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the disallowance of the expenses to the tune of ₹ 2,08,002/- u/s. 40(a)(ia) of the Act. 3. So far as this grievance is concerned, it is sufficient to take note of the fact that an amount of ₹ 2,08,002/- paid to Diamonds Gems Development Corporation without deduction of tax at source, and it was for this reason that the expenditure was disallowed under section 40(a)(ia) of the Act In appeal, learned CIT(A) confirmed the disallowance. Not satisfied, the assessee is in further appeal before me. 4. I have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of applicable legal position. 5. So far as disallowance under section 40(a)(ia) is concerned, in view of Hon ble Delhi High Court s judgement in the case of CIT vs. Ansal Landmark Townships Pvt. Ltd. [(2015 377 ITR 635 (Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing to the assessee, decide the matter in accordance with the law and by way of a speaking order. We order so 5. In effect thus, Their Lordships have approved the action of the Tribunal in remitting the matter to the file of the Assessing Officer with a direction to ascertain whether the recipient has taken into account related payments into computation of his income and offering the same to tax, and, if so, delete the disallowance under section 40(a)(ia) in respect of the same. 6. When, however, we asked the learned Departmental Representative as to why we should also not remit the matter to the file of the Assessing Officer, with the same directions, he, alongwith his senior colleague Shri Darhan Singh, who happens to be the CIT(A) authoring the impugned order and who was on duty as CIT(DR) before us, had three points to make- first, that there are decisions in support of the stand of the Assessing Officer s stand, by way of Hon ble Kerala High Court s decision in the case of Thomas George Muthoot Vs CIT [(2015) 63 taxmann.com 99 (Kerala)]; second, that even if insertion of second proviso to Section 40(a)(ia) can be construed as retrospective in effect, the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eptions to this general rule. It has been held that the rule of resolving ambiguities in favour of tax-payer does not apply to deductions, exemptions and exceptions which are allowable only when plainly authorised. This exception, laid down in Littman vs. Barron 1952(2) AIR 393 and followed by apex Court in Mangalore Chemicals Fertilizers Ltd. vs. Dy. Commr. of CT (1992) Suppl. (1) SCC 21 and Novopan India Ltd. vs. CCE C 1994 (73) ELT 769 (SC), has been summed up in the words of Lord Lohen, in case of ambiguity, a taxing statute should be construed in favour of a tax-payer does not apply to a provision giving tax-payer relief in certain cases from a section clearly imposing liability . This exception, in the present case, has no application. The rule of resolving ambiguity in favour of the assessee does not also apply where the interpretation in favour of assessee will have to treat the provisions unconstitutional, as held in the matter of State of M.P. vs. Dadabhoy s New Chirmiry Ponri Hill Colliery Co. Ltd. AIR 1972 (SC) 614. Therefore, what follows is that in the peculiar circumstances of the case and looking to the nature of the provisions with which we are presently conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being a non-jurisdictional High Court does not alter the position as laid down by Hon ble Bombay High Court in the matter of CIT vs. Godavari Devi Saraf ([1978) 113 ITR 589 (Bom)] and as analysed by a coordinate bench of this Tribunal in the case of ACIT Vs Aurangabad Holiday Resorts Pvt Ltd [(2009) 118 ITD 1 (Pune)]. 10. In view of the above discussions, as also bearing in mind entirety of the case, we deem it fit and proper to remit the matter to the file of the Assessing Officer for limited verification on the aspect as to whether recipient of payment has included the same in his computation of business income offered to tax, and, if found to be so, delete the disallowance in question. With these directions, the matter stands restored to the file of the Assessing Officer. 6. In view of the view so taken by the division bench and in the light of Hon ble Delhi High Court decision in the case of Ansal Landmark Township (supra), I remit the matter to the file of the Assessing Officer for adjudication de novo in the light of our above observations. Order accordingly. 7. Ground no.1 is thus allowed. 8. In ground no.2, the grievance is as follows :- 2) The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that addition is indeed devoid of any legally sustainable merits inasmuch as the entry is reasonably explained and just because a machinery is not shown, due to accounting error, it cannot be added to income. I, therefore, direct the Assessing Officer to delete the addition of ₹ 4,57,875/- on account of balance sheet difference. 12. Ground no.2 is thus allowed. 13. Ground no.3 is not pressed by the appellant and is dismissed as such. 14. In ground no.4, the assessee has raised the following grievance:- 4) The learned Commissioner of Income Tax (Appeals) has erred in law and on facts in confirming the action of the Id. A.O. in not allowing the exemption u/s 10AA of the Act. In respect of total business income of ₹ 10,59,95,776/- determined by the Id. A.O. vide the order of assessment dated 29/12/2010. It is therefore prayed that the exemption u/s. 10AA of the Act be granted to the extent of assessed business income of ₹ 10,59,95,776/- as determined by the id. A.O. 15. While computing the assessed income, the Assessing Officer restricted the exemption under section 10AA to the amount as claimed and did not extend the same to entire bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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