ACIT 11(2), MUMBAI V. ALOK K. SHARMA, MUMBAI

ITA 345/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2504 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DARSI SUMAN RATNAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAJESH KUMAR, AM ./ ITA NO. 345/MUM/2013 ( !'#! / ASSESSMENT YEAR: 2009-10) A C I T - 11(2) $%& /APPELLANT ROOM NO. 479, 4TH FLOOR AYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 / VS. SHRI ALOK K. SHARMA '(%& / RESPONDENT T - 66, 3 OLD BARRACKS, SION HOSPITAL STAFF QRS., LTMG HOSPITAL, SION MUMBAI 400022 % ./ PAN - ACLPS7196Q $%&)* / APPELLANT BY: DR. DARSI SUMAN RATNAM '(%&)* / RESPONDENT BY: NONE )+ / // / DATE OF HEARING : 18.11.2015 ,-#')+ /DATE OF PRONOUNCEMENT : 26.11.2015 / O R D E R PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE ORDER OF CIT(A) ON FOLLOWING GROUNDS: - 2 ITA NO. 345/MUM/2013 SHRI ALOK K. SHARMA 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION MADE U/S. 40(A)(IA) OF THE I.T. ACT BY RELYING ON THE ITAT SPECIAL BENCH DECISION IN THE CASE OF MERILYN SHIPPING AND TRANSPORT VS. ADDL. CIT 136 ITD 23 (SB) VISHAKHAPATNAM WITHOUT CONSIDERING THE FACT THAT THE OPERATION OF THE SAID DECISION HAS BEEN STAYED BY THE HON'BLE HIGH COURT OF ANDHRA PRADESH. 2. ASSESSING OFFICERS CASE IS THAT ASSESSEE BEING DO CTOR HAS NOT DEDUCTED TDS ON PAYMENT OF ` 4 LAKHS PAID AS RENT TO SURANA SETHIA HOSPITAL AND ` 5,15,400/- PAID AS CONSULTANCY CHARGES PAID ON 23.07.2010. THEREFORE, HE WAS ASKED AS TO WHY THE PAYMENT SHOULD NOT BE DISALLOWE D UNDER SECTION 40(A)(IA) OF THE ACT. IT WAS THE STAN D OF ASSESSEE THAT ASSESSEE HAD DEDUCTED TDS ON CONSULTA NCY CHARGES AND RENT AND TDS HAS BEEN DEPOSITED AFTER D UE DATE OF FILING OF RETURN OF INCOME WITH DELAYED INT EREST AS PER PROVISIONS OF THE ACT. HOWEVER, ASSESSING OFFIC ER WAS OF THE VIEW THAT PAYMENT OF RENT AND CONSULTANCY WAS ALLOWABLE AS DEDUCTION ONLY WHEN TDS AS PER CHAPTER XVII- B HAS BEEN DEDUCTED WITHIN STIPULATED TIME, WHICH A SSESSEE FAILED TO DO. ACCORDINGLY HE DISALLOWED BOTH THE PA YMENTS. 3 ITA NO. 345/MUM/2013 SHRI ALOK K. SHARMA 2.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F THE ASSESSEE AND HAVING CONSIDERED THE SAME CIT(A) GRAN TED RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED B EFORE US BY REVENUE, INTER ALIA, SUBMITTING THAT CIT(A) E RRED IN DELETING THE ADDITION MADE U/S. 40(A)(IA) OF THE AC T. ACCORDINGLY, THE ORDER OF THE CIT(A) BE SET ASIDE A ND THAT OF ASSESSING OFFICER BE RESTORED. NONE APPEARED ON BEHALF OF ASSESSEE. THEREFORE THE APPEAL HAS BEEN DECIDED EXPARTE ON THE BASIS OF THE ARGUMENT OF THE LEARNED DEPARTM ENTAL REPRESENTATIVE AND MATERIAL ON RECORD. 2.2 AFTER GOING THROUGH THE MATERIAL ON RECORD WE F IND THAT ASSESSEE HAS THOUGH DEDUCTED TDS LATE ON PAYME NT OF RENT AND CONSULTANCY CHARGED OF ` 9,15,400/- BUT PAID THE SAME TO GOVERNMENT ACCOUNT. ASSESSEE HAS PAID THE R ENT AND CONSULTANCY CHARGES DURING THE FINANCIAL YEAR A ND THERE WAS NO AMOUNT WAS PAYABLE OR OUTSTANDING AS ON 31 ST MARCH, 2009. PROVISIONS OF SECTION 40(A)(IA) APPLIE S TO THE 4 ITA NO. 345/MUM/2013 SHRI ALOK K. SHARMA AMOUNT WHICH IS PAYABLE AS ON 31 ST MARCH AND NOT ON THE AMOUNT PAID DURING THE YEAR. THEREFORE NO DISALLOWA NCE UNDER SECTION 40(A)(IA) COULD BE MADE BECAUSE THE W ORD PAYABLE USED IN SECTION 40(A)(IA) OF INCOME TAX A CT HAS TO BE GIVEN ITS NATURAL MEANING AND GOING BY THE ST RICT INTERPRETATION, SECTION 40(A)(IA) OF THE ACT IS APP LICABLE ONLY TO EXPENDITURE WHICH IS PAYABLE AS ON 31 ST MARCH OF EVERY YEAR AND CANNOT BE INVOKED TO DISALLOW THE AMOUNTS WHICH HAVE ALREADY BEEN PAID DURING THE PREVIOUS YEAR WIT HOUT DEDUCTING TAX AT SOURCE. THIS REASONED FINDING OF T HE CIT(A) NEED NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE S AME. 3. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . .'+/ 0)$ .0)0+1 ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER, 2015. 2),-#' 3/ 26.11.2015 -)4 SD/- SD/- ( RAJESH KUMAR ) ( SHAILENDRA KUMAR YADAV ) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, 3 DATED 26 TH NOVEMBER, 2015 5 ITA NO. 345/MUM/2013 SHRI ALOK K. SHARMA COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / THE CIT(A) - 3, MUMBAI 4. / THE CIT - 11, MUMBAI 5. / DR, A BENCH ITAT, MUMBAI 6. GUARD FILE. / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) /ITAT, MUMBAI N.P.