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TMI Blog2020 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, which can be rectified u/s 254(2) of the I.T.Act, 1961. Disallowances of gifts and other expenses given to employees, dealers, customers and other business associates - Tribunal has recorded its categorical finding and discussed the issue in light of various averments made by the assesee and has also considered various case laws cited on this issue. Tribunal has recorded its categorical finding that expenditure incurred under the head gifts and other expenses given to employees etc, are in the nature of personal expenses and are not incurred wholly and exclusively for the purpose of business of the assessee. Further, if you go through the fact finding recorded by the Tribunal in light of averments made by the assesee in the miscellaneous application, we find that what is sought through the miscellaneous application is to review the decision rendered by the Tribunal in the given facts and circumstances of the case, which in our considered view is not permissible u/s 254(2) - miscellaneous application filed by the assessee on both grounds does not have merits - Decided against assessee. - M.A. No.753 /Mum/2018 (Arising out of ITA No.7619/Mum/2013) - - - Dated:- 28-7-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the transaction charges to the account of the stock exchange. However, since both the revenue and assessee were under the bona fide belief for nearly a decade that tax was not deductible at source on payment of transaction charges, no fault can be found with asssesee in not deducting the tax at source in the assessment year in question and consequently, disallowance made by the assessing officer under section 40(a)(ia) in respect of the transaction charges cannot be sustained * Decision of the coordinate bench in the case of DCIT vs. UPS Jetair Express P Ltd 56 taxmann.com 387 (Mum) not considered while deciding on merit - mistake apparent from record o * Reliance is placed on the following decisions: - Honda Siei Power Products Ltd 295 ITR 466 (SC) Reliance Communication Ltd 183 TTJ 388 (Mum) - Silicon Graphics Systems (I) Ltd 21 SOT 471 (Del) Ref Para 65, Pg 10 of Fact Sheet - Relying on the decision of the coordinate bench in the case of DCIT vs. UPS Jetair Express P Ltd 56 taxmann.com 387 (Mum) the Appellant also argued that proviso to section 40{a) is retrospective in nature and hence the AO may be directed to verify whether the payee has pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is placed on the following decisions: - Honda Siel Power Products Ltd 295 ITR 466 (SC) Reliance Communication Ltd 183 TTJ 388 (Mum) - Silicon Graphics Systems (I) Ltd 21 SOT 471 (Dei) Relying on the decision of in the case of Hansraj Mathurdas vs ITO (ITA No 2397/Mum/2010) the Appellant argued that since the Appellant Company had already paid FBT it can be construed that the expenses are business expenses and incurred wholly and exclusively for the purpose of business (Para 45 46, Pg 8 of Fact Sheet) The Hon'ble Mumbai Tribunal in the case of Hansraj Mathurdas vs ITO (ITA No 2397/Mum/2010) laid down the following principle: circular No. 8/2005 dated 29-08-2005 issued by the Board explaining the provisions relating to fringe benefit tax thus makes it clear that fringe benefit tax is levied on the expenses incurred by the employer irrespective of whether the same are incurred for official or personal purposes. In our opinion, once fringe benefit tax is levied on such expenses as has been done in the present case, it follows that the same are treated as fringe benefits provided by the assessee as employer to its employees and the same have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the I.T.Act, 1961. 4. The Ld. DR, on the other hand submitted that the Ld. AR for the assessee has failed to make out a case of prima-facie mistake apparent on record from the order of the Tribunal, but what is sought through the miscellaneous application is review the decision rendered by the Tribunal in the given facts and circumstances of the case, which is not permissible u/s 254(2) of the Act. Hence, miscellaneous application filed by the assesee may be rejected. 5. We have heard both the parties and perused the miscellaneous application filed by the assesee, along with order of the Tribunal, dated 07/06/2018 in ITA No. 7619/Mum/2013. We find that the Tribunal has recorded categorical findings, insofar as, disallowances of amount paid to Mr. Mohla, an ex-employee for non deduction of tax at source u/s 194C of the I.T.Act, 1961, on the ground that the payment made to Mr. Mohla, is in the nature of commission, and the assessee is required to deduct tax at source u/s 194C of the I.T.Act, 1961. Since, the assessee has failed to deduct tax at source on said payment, the Tribunal came to the conclusion that there is no error in disallowances of said amount u/s 40(a)(ia) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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