P.Manickam & Co, CHENNAI V. DCIT Non Corporate Circle 10(1), CHENNAI

ITA 2838/CHNY/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4326 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 24-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: P G SADGURU DAS
• Keywords: TDS
• Section: 139; 143(3); 40(a)(ia); 201(1)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ I.T.A. NO. 2838/CHNY/2017 / ASSESSMENT YEAR: 2012-13 M/S. P. MANICKAM & CO., NO. 21, PERAMBUR BARRACKS ROAD, PATTALAM,CHENNAI 600 012. [PAN:AAAFP0680R] VS. THE INCOME TAX OFFICER, CORPORATE WARD 5(2), CHENNAI. ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI P.G. SADGURU DAS, C.A. / RESPONDENT BY : SHRI R. CLEMENT RAMESH KUMAR, ADDL. CIT / DATE OF HEARING : 04.02.2019 /DATE OF PRONOUNCEMENT : 12.02.2019 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 12, CHENNAI, DATED 20.09.2017 RELEVANT TO THE ASSESSMENT YEAR 2012-13. THE FIRST EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PAYMENT OF .10,45,392/-. I.T.A. NO. 2838/CHNY/17 2 2. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT [ACT IN SHORT] WAS COMPLETED BY MAKING DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT TOWARDS INTEREST PAYMENTS AMOUNTING TO .12,57,113/- MADE TO NBFC ON THE GROUND THAT TDS WAS NOT DEDUCTED TREATING THE ASSESSEE AS ASSESSEE IN DEFAULT UNDER SECTION 201(1) R.W.S. 194H OF THE WITHOUT ASCERTAINING AS TO WHETHER THE RECIPIENT PAID TAXES ON THE ALLEGED INCOME RECEIVED/ RECEIVABLE FROM THE ASSESSEE AS REQUIRED UNDER SECTION 191 OF THE ACT. CONSIDERING THE CERTIFICATES IN THE RESPECT OF M/S. RELIGARE FINVEST LIMITED FOR .62,419/- AND TATA CAPITAL FINANCIAL SERVICES LIMITED FOR .1,49,392/- AND ALLOWING THE SAME, THE LD. CIT(A) CONFIRMED ON THE BALANCE PAYMENT OF .10,45,392/-. BY FILING CONFIRMATION FROM KOTAK MAHINDRA PRIME LTD., RELIANCE CAPITAL LTD. AND TATA CAPITAL LIMITED, WHO MIGHT HAVE PAID THE TAX ON THE INTEREST INCOME RECEIPT, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED NECESSARY DIRECTIONS MAY BE GIVEN TO DELETE THE DISALLOWANCE. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY AND ALLOW IF IT ALLOWABLE. 3. WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO I.T.A. NO. 2838/CHNY/17 3 PERUSED THE PAPER BOOK, WHEREIN, CONFIRMATION LETTERS WERE FILED, WHICH WERE NOT FILED BEFORE THE AUTHORITIES BELOW. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO VERIFY AS TO WHETHER THE RECIPIENTS HAVE DECLARED THE INTEREST INCOME RECEIPT IN THEIR RETURN OF INCOME UNDER SECTION 139 OF THE ACT AND OFFERED TO TAX AND IF SO, THE DISALLOWANCE SHOULD BE DELETED. 4. WITH REGARD TO THE DISALLOWANCE OF SUB-CONTRACT EXPENSES, THE ASSESSING OFFICER DISALLOWED THE SAID PAYMENTS FOR NON-SUBMISSION OF THE CONFIRMATION LETTERS AND OTHER DETAILS OF THE PARTIES. AGAINST VARIOUS DETAILS FILED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS, IN THE REMAND REPORT THE ASSESSING OFFICER POINTED OUT THAT THE ASSESSEE IS REQUIRED TO FILE COPY OF TDS RETURNS IN 26Q TO CONFIRM THE PAYMENT. BEFORE THE LD. CIT(A), IT WAS THE ORAL SUBMISSION OF THE AR OF THE ASSESSEE THAT COPY OF 26Q IS AVAILABLE AND COULD NOT PRESENT THE SAME BEFORE THE ASSESSING OFFICER SINCE, THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY DURING THE REMAND PROCEEDINGS. ACCORDINGLY, THE LD. CIT(A) DIRECTED THE ASSESSEE TO PRODUCE THE SAME AND DIRECTED THE ASSESSING OFFICER TO GIVE CREDENCE. TO ADMIT ANY CLAIM PROPER EVIDENCE IS ESSENTIAL. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE COPY OF 26Q AS MAY BE FILED BY THE ASSESSEE AND ALLOW THE SUB-CONTRACT EXPENSES IN ACCORDANCE WITH LAW. I.T.A. NO. 2838/CHNY/17 4 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 12 TH FEBRUARY, 2019 IN CHENNAI. SD/- SD/- (INTURI RAMA RAO) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, 12.02.2019 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.