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TMI Blog2021 (8) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... in such return of income - in the light of the certificate of the Chartered Accountant filed by the assessee, the issue with regard to the disallowance under section 40(a)(ia) of the Act should be remanded to the AO for fresh consideration - Appeal of the assessee is treated as allowed for statistical purposes. - ITA No. 358/Bang/2021 - - - Dated:- 24-8-2021 - N. V. Vasudevan, Vice President For the Appellant : Adam Kajabee , CA For the Respondents : Ganesh R. Ghale , Standing Counsel ORDER Per N. V. Vasudevan , Vice President This is an appeal by the assessee against the order dated 14.09.2017 of CIT(A)-7, Bengaluru, in relation to AY 2014-15. 2. The assessee is an individual engaged in the business of running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 provided as follows:- Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (1) of section 201, then, for the purpose of this sub-clause, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso. 4. The 2nd proviso to Sec. 40(a)(ia) lays down that for non-deduction of tax at source, if the Assessee is not treated as Assessee in default under the first proviso to 201(1) of the Act then no disallowance u/s. 40(a)(ia) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier. As per these provisions, if ultimately the tax due to the exchequer is received then no disallowance u/s. 40(a)(ia) of the Act should be made. The Hon'ble Supreme Court in the case of Hindustan Coca Cola Beverages Pvt. Ltd. v/s CIT 163 taxman 55 in the context of section 201(1) and 201(1A), wherein it was held that, where deductee (recipient of income) has already declared income/paid taxes on amounts received from deductor, the department could not subject the same to double taxation. 6. The CIT(A) agreed with the stand taken by the assessee but found that the certificate required to be filed was not filed and hence he refused to interfere with the order of the AO. The following were the relevant observations of the CIT(A): ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the CIT(A). The learned Counsel for the assessee also did not inform the assessee about the outcome of the appeal before the CIT(A). It is only when the refund due to the assessee were adjusted against the demand arising out of the order of the CIT(A) that the assessee came to know about the result of the appeal before CIT(A). Thereafter the assessee contacted the AR and received the order on 20.01.2021. Due to Covid lockdown the assessee could file the appeal only on 28.07.2021 resulting in a delay of about 188 days. The assessee has also filed an affidavit affirming the facts stated in the application for condonation of delay. It has further been stated that the Hon'ble Jurisdictional High Court vide order dated 28/10/2011 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Cholamandalam Investment and Finance Company Ltd., has filed the return of income for Assessment Year 2014-15 and has included the income received form the assessee in such return of income. I am of the view that in the light of the certificate of the Chartered Accountant filed by the assessee, the issue with regard to the disallowance under section 40(a)(ia) of the Act should be remanded to the AO for fresh consideration. The AO will consider the certificate filed by the assessee and decide the question whether disallowance under section 40(a)(ia) of the Act should be made or not, after affording the assessee opportunity of being heard. 11. In the result, appeal of the assessee is treated as allowed for statistical purposes. Pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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