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TMI Blog2018 (7) TMI 2179X X X X Extracts X X X X X X X X Extracts X X X X ..... pectfully submits in respect of the order passed by the learned Commissioner of Income-tax (Appeals) ["CIT (A)"] under section 250 of the Income-tax Act, 1961 (hereinafter referred to as the 'Act') that: 1. The learned CIT (A) has erred in law and on facts in upholding the order of the Assistant Commissioner of Income-tax - TDS ("AO") and passing an order under section 250 of the Act 2. The learned CIT (A) has erred in passing an order under section 250 of the Act which is bad in law and on facts. 3. The learned CIT (A) and the AO have erred in law and on facts holding that the 'expense provisions' debited to the profit and loss account as at the year-end would attract the tax deduction at source provisions under the Act without appreciating the fact that no liability to pay to the vendors had accrued to the Appellant in relation to such provision. 4. The learned CIT(A) and the AO have erred in law and on facts in holding the Appellant to be an 'assessee in default' under section 201(1) of the Act in respect of the expense provisions debited to the profit and loss account. 5. The learned CIT(A) and the AO have erred in law and on facts in failing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing, of the appeal." 3. The grounds raised by the assessee in respect of demand raised u/s. 201(1A) of IT Act are also identical and hence, reproduced from ITA No. 2263/Bang/2016. "Based on the facts and circumstances of the case, IBM India Private Limited (hereinafter referred to as "the Appellant"), respectfully submits in respect of the order passed by the learned Commissioner of Income-tax (Appeals) ["CIT (A)"] under section 250 of the Income-tax Act, 1961 (hereinafter referred to as the 'Act') that: 1. The learned CIT (A) has erred in law and on facts in upholding the order of the Assistant Commissioner of Income-tax - TDS ("AO") and passing an order under section 250 of the Act 2. The learned CIT (A) has erred in passing an order under section 250 of the Act which is bad in law and on facts. 3. The learned CIT (A) and the AO have erred in law and on facts holding that the 'expense provisions' debited to the profit and loss account as at the year-end would attract the tax deduction at source provisions under the Act without appreciating the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appellate authority lower to the honourable ITAT, has erred in law in holding the decision of the jurisdictional ITAT in the case of Bosch Limited vs. Income Tax Officer (ITA 1583/BNG/2014) as "per incuriam" and accordingly to not have a binding precedent value. 12. The learned CIT(A) and the AO have erred in law and on facts in failing to appreciate that the liability under Section 201 would have to be decided based on the provisions of law relating thereto and that therefore unless tax was deductible in terms of the provisions in Chapter XVII-B of the Act, no liability under Section 201(1A) could be foisted on the Appellant. 13. The learned CIT (A) has erred in law and on facts in confirming the levy of interest under section 201(1A) of the Act Each of the above ground is independent and without prejudice to the other grounds of appeal preferred by the Appellant Further, the Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before or at, the time of hearing, of the appeal." 4. At the very outset, it was submitted by ld. AR of assessee that the issue involved in these appeals is covered against the assessee by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee and the learned DR. The learned counsel for the assessee at the outset brought to our notice that pending disposal of the appeals, the assessee has furnished before the AO, details regarding the actual payment of TDS in subsequent financial year, on the provisions made in the various financial years. These details were verified by the AO. The AO has addressed a letter to the DR in which the AO after verification has found that the assessee had deducted tax at source at the time when the provision made in one financial year is subsequently reversed and the expenses booked in the subsequent financial year. The following are the contents of the said letter (copy filed by DR in court), in so far as relates to taxes deductible at source. 3. During the course of appellate proceedings before the Hon'ble ITAT the assessee company took the same plea that it has deducted tax at source in the subsequent year on all the amounts that were disallowed u/s 40a (i) and 40a (ia) as and when these amounts were paid. The Hon'ble ITAT therefore directed that such details be produced before the Income Tax Officer (TDS) for verification. 4. At the remand stage the assessee company has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur view, will no longer survive. However the appeals will survive with regard to the liability of the Assessee to interest u/s 201 (1A) of the Act. Therefore the appeals in so far as it relates to challenge to order u/s 201 (1) of the Act have to be allowed." 6. From the above paras, it is seen that in those years, the tribunal has considered a report of the AO as per which, it was reported by the AO that the assessee has in subsequent year either deducted tax at the time of payment or added back the relevant expenditure in P & L Account. It is also reported that wherever TDS was deducted in subsequent year, the same was remitted to Govt. Account. Based on this report of the AO, the tribunal in those years held that the demand u/s 201 (1) does not survive and confirmed the demands u/s 201 (1A) only. In the present years, no such report of the AO is brought on record to show that TDS is deducted in later years at the time of payment and remitted to Govt. Account or where payment was not made, the provision of expenses was written back and credited to P & L Account. Hence, the assessee cannot get any relief in the present years on similar line. Rather one thing stands admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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