9911796707
TMI Blog2024 (7) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they have declared the respective income in their return of income, no disallowance u/s. 40(a)(i) of the Act is to be made in view of second proviso for the reason that this issue has been settled in the assessee of Ansal Land Mark Township (P) Ltd. [ 2015 (9) TMI 79 - DELHI HIGH COURT] As against the same, the CIT(A)-NFAC for rejection relied on the decision of Prudential Logistics and Transports [ 2015 (2) TMI 847 - KERALA HIGH COURT] and Thomas George Muthoot [ 2015 (7) TMI 810 - KERALA HIGH COURT] We noted that when there was contrary decision of two High Courts that is of non-jurisdictional High Court, beneficial to the assessee is to be applied and adopted. For this proposition of ours, we are relying on the decision of Vegetable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 40(a)(i) of the Act amounting to Rs. 2,26,73,426/-. This is the only limited issue on merits but assessee has raised various other issues of proper opportunity etc., which will be dealt with later. 3. Brief facts are that the assessee filed its return of income for the relevant assessment year 2011-12 on 30.09.2011 whereby the AO disallowed a sum of Rs. 2,26,73,426/- (the dispute presently left with us for adjudication) by invoking the provisions of section 40(a)(i) of the Act being payments made to non-resident claimed by assessee as expenses without deduction of TDS. The assessee challenged the draft assessment order before DRP and DRP vide directions dated 29.12.2015 directed the AO and in consequent to the same, fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of AO to examine the applicability of the said proviso to Sec.40(a)(i) of the Act and decide accordingly. Therefore, the issue is remitted to the file of AO for fresh consideration. This Ground is partly allowed. 3.1 In consequent to the above order of Tribunal, the AO in giving effect order dated 22.08.2017 confirmed the disallowance by observing in para 4 as under:- 4. With respect to payments to various resident parties without TDS deduction and the subsequent disallowance made by AO u/s. 40(a)(ia), the Hon ble ITAT, Chennai, had opined that if the recipient of the payment has disclosed the receipts of their income, then the assessee company should not be treated as assessee in default as per provisions of Sec.201(1) of the Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee s appeal has been dismissed as infructuous on the ground that the assessee has opted for Vivad Se Vishwas Scheme. However, as per statement made by Ld.AR, the assessee has not opted for VSVS in respect of disallowance u/s 40(a)(ia). Considering the same, the impugned order is set aside and LD.CIT(A) is directed to adjudicate the issue on merits. 3.3 In consequence to the Tribunal s direction, the CIT(A)-NFAC vide order dated 02.01.2024 again confirmed the disallowance by observing in para 5.3 to 5.5 as under:- 5.3 The appellant relied upon the decisions of the hon ble high court of Delhi in the case of Ansal Landmark Township (P) Ltd., 377 ITR 635 as well as the case of Rajeev Kumar Agarwal v. Addl. CIT, ITA No.337 (Agra) of 2013 to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not deducted the taxes i.e., TDS u/s. 195 of the Act. The ld.counsel for the assessee before us now stated that the Tribunal again and again has restored the matter back to the file of the CIT(A) or AO but none of the authorities have looked into the details given regarding the fact that these parties have declared the income in their respective returns of income and once the assessee has provided the details in respect of recipient parties that they have declared the respective income in their return of income, no disallowance u/s. 40(a)(i) of the Act is to be made in view of second proviso for the reason that this issue has been settled by Hon ble Delhi High Court in the assessee of Ansal Land Mark Township (P) Ltd., supra. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
