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TMI Blog2019 (12) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the assessee that payment made to parties to the tune of 30,000/- were not a single transaction and hence, Section 194C of the Act, does not apply. As regards payments to Vyapar Bharati Press, he accepted the submission that TDS @ 1% was deducted on the payments and hence Section 40(a)(ia) of the Act is not applicable. In case of payments to NG Gosai Printing Pvt. Ltd., as it was purchase of goods, he held that the provisions of Section 194C of the Act, does not apply. Regarding the payment to Jivan Ratan Chatterjee Legal, he submitted that the payment of 31517/-, was towards advocate fees and service tax and as the advocate fees was less than 30,000/-, Section 194J of the Act, does not apply. Similarly, he has analysed each and every payment and came to a conclusion that provision of tax deduction at source do not apply. D/R, could not contradict these factual findings of the ld. CIT(A). Addition made on account of sale of rights in property and carry forward of loss to future years - HELD THAT:- The assessee has sold the rights in property in the Assessment Year 2013-14 and 2014-15. The assessee declared the same as income from capital gain in its return of income for these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of 5 (five) days in filing of both these appeals by the revenue. After perusing the petition for condonation, we are convinced that the department was prevented by sufficient cause from filing the appeal on time. Hence the delay is condoned and the appeals are admitted. 2.1. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 3. We first take the appeal of the revenue for the Assessment Year 2013-14. 4. On Ground No. 1, we find that the ld. CIT(A), at para 23 has stated as follows:- "23. In Ground of Appeal No. 5 pertains to not carrying forward the Long Term Capital Loss of ₹ 160,65,10,531/-. This is agreed. The Ld. A.O. may consult the files of the previous years and if the amount is due and unclaimed, the same may be allowed." 4.1. We find no infirmity in these directions of the ld. CIT(A). The Assessing Officer is directed to verify the claim of the assessee and allow the same, in accordance with law. Hence, we dismiss this ground of revenue. 5. Ground Nos. 2, 3 & 4 are on the issue of disallowan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant cases, after considering the submissions made by the Id. A.R. of the assessee, it is crystal clear that TDS provisions were not applicable. As such, no TDS were required to be deducted, if not mandated by the statute. Thus, no additions to income could have been made u/s 40(a)(ia) of the Income-tax Act, 1961 as has been done by the ld. A.O. 8. He accepted the claim of the assessee that payment made to parties to the tune of ₹ 30,000/- were not a single transaction and hence, Section 194C of the Act, does not apply. As regards payments to Vyapar Bharati Press, he accepted the submission that TDS @ 1% was deducted on the payments and hence Section 40(a)(ia) of the Act is not applicable. In case of payments to NG Gosai Printing Pvt. Ltd., as it was purchase of goods, he held that the provisions of Section 194C of the Act, does not apply. Regarding the payment to Jivan Ratan Chatterjee Legal, he submitted that the payment of ₹ 31517/-, was towards advocate fees and service tax and as the advocate fees was less than ₹ 30,000/-, Section 194J of the Act, does not apply. Similarly, he has analysed each and every payment and came to a conclusion that provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition made on account of sale of rights in property and carry forward of loss to future years. 15. The assessee has sold the rights in property in the Assessment Year 2013-14 and 2014-15. The assessee declared the same as income from capital gain in its return of income for these Assessment Years. The Assessing Officer has accepted this claim of the assessee and assessed the income under the head capital gains. During the current Assessment Year 2015-16, the Assessing Officer treated the income from sale of right in property as income from business. The assessee disputed the same before the ld. CIT(A). Its case is that the income in question is assessable under the head capital gains and not under the head income from business of profession. He relies on the decision of the Hon'ble Supreme Court in the case of Radhasoami Satsang vs. CIT (1992) 193 ITR 321 (SC), for the proposition that consistency should be followed by the Assessing Officer when the facts permeating over the years are the same. The ld. CIT(A) at para 11, 12 and 13 of his order, page 9, held as follows:- "11. I have gone through the order of the Id. A.O. and the submissions made by the ld. A.R.s of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the ld. CIT(A) that Explanation 2 to Section 37 of the Act, does not come into play. He was of the view that deduction in question is allowable under chapter VIA and not under chapter IV. As this finding has not been challenged, in this ground, we dismiss the same. 18. Ground No. 4 is against the allowance of deduction of education cess u/s 37(1) of the Act. 19. The ld. CIT(A) at para 35 & 36 of his order held as follows:- "35. I have gone through the Kolkata Tribunal in the case of M/s. ITC Limited vs. ACIT, Range-8, Kolkata in ITA No. 685/Kol/2014. In para 12, the following has been stated by the Tribunal - "12. The assessee's additional last/ substantive ground avers that it is entitled for the educations secondary higher education cess as overhead deduction amounting to ₹ 423618317.0 u/s 37 of the Act. We not that hon'ble Rajasthan high court's decision in DB Income Tax Appeal No. 52/ Kolkata/ 2018 M/s Chambal Fertilizers Ltd. vs. DCIT decided on 31.07.2018 takes into account CBDT circular dated 18.05.1967 for holding such cess(es) to be allowable as deduction. Their lordships hold that section 40a(ii) applies only on taxes such than ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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