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TMI Blog2015 (5) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) erred in deleting the addition of Rs. 3,18,41,394/- made by the A.O. as unexplained cash credits, by treating the same as genuine gift. 2.a. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in allowing relief to the assessee to the extent of Rs. 24,03,663/- out of total addition of Rs. 26,12,930/- made by the A.O. on account of non payment of TDS into Government Treasury by holding that the expenses to which the said TDS defaults relates were in the nature of reimbursement. 2.b. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in admitting addition alevidences without providing the A.O . a n opportunity to examine the additional evidences, which is in contravention of Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance of Mr. Zulfikar K. Momin was Rs. 3,88,51,576/-. Out of the said amount Rs. 3,18,41,394/- was shown as gift received by the assessee by way of passing of a journal entry. After seeking and considering the explanation given by the assessee in this respect, the AO held that the assessee had failed to establish the genuineness of the transaction and the creditworthiness of the donor for the following reasons: "i) The alleged donor Mr. Zulfikar Momin is a salaried employee of the assessee and have received salary of Rs. 1,32,000/- during the year. ii) Mr. Zulfikar Momin is not having any other sources of income. There fore the capacity of Mr. Zulfikar Momin to give gift of Rs. 3,18,41,394/- is not proved. Mr. Momin did not have the cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount received by the assessee is without any consideration as there is no such entry in the account which suggests of any consideration being paid. v) The RBI Bonds are not to have been shown as alleged gift. The gift as shown by the assessee is executed through JV passed on 31st March, 2007." 5. In appeal, the Ld. CIT(A), after considering the submissions and the evidences on the file, observed that in this case the identity of the donor Mr. Zulfikar K. Momin, brother of the assessee was well established. His PAN number was available on record and he was regularly assessed to tax. He further observed that the financial capacity and creditworthiness of the donor was also established from the copies of the income tax returns, balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.2 6. The Revenue, vide ground No.2, has agitated the action of the Ld. CIT(A) in giving relief to the assessee to the extent of Rs. 24,03,663/- out of total addition of Rs. 26,12,930/- made by the AO on account of non payment of TDS into government treasury by holding that the expenses to which the said TDS defaults had occurred were in fact in the nature of reimbursement. At the outset, the Ld. A.R. of the assessee has stated that the TDS in this case was deposited before the due date of filing of return. 7. We have considered the rival contentions of the Ld. Representatives of the parties. In the case in hand the assessee has claimed that though it had not deposited the TDS before the due date as was prescribed u/s 40(a)(ia) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Finance Act, 2010 is to be considered as retrospective in-as-much as it is only toward mitigating a hardship and, thus, is to be considered as curative in nature. In view of the above decisions of the Hon'ble Delhi High Court and that of Calcutta High Court and in the absence of any decision to the contrary of our Hon'ble jurisdictional High Court of Bombay, it is to be held that the amendment to section 40(a)(ia) of the Act made vide Finance Act, 2010 is applicable retrospectively and if the payments have been deposited before the due date of filing of return, then it cannot be said to be a case of violation of provisions of section 194C of the Act inviting disallowance u/s section 40(a)(ia) of the Act. Since the challans re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance of Rs. 50,000/- on lumpsum basis on account of personal element considering expenses incurred through credit card towards purchase of cosmetics, perfumes etc. 10. In appeal, the Ld. CIT(A), after considering the submissions of the assessee, observed that the assessee had been engaged in the business of export of marble, granite and other stones. The very nature of the assessee's business and prevailing cut-throat competition required foreign travelling for meeting customers, exploring new avenues and buyers, regular personal meeting with customers to understand their needs, taste, requirements, etc., latest trends in the market, and market conditions, follow up for payments, the need for exploring new markets, new customers, regular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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