BSC - KGLC(CONSORTIUM), CHENNAI V. THE DEPUTY COMMISSIONER OF INCOME TAX,NON CORPORATE CIRCLE-10(1), CHENNAI

ITA 39/CHNY/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1822 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 23-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 40(a)(ia)

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos.:39 & 40/CHNY/2021 िनधाᭅरण वषᭅ /Assessment Years:2010-11 & 2011-12 M/s. BSC – KGLC (Consortium), C/o BSCPL Infrastructure Ltd., Shop No.15, Nookampalayam Village, Perumbakkam Main Road, Sithalapakkam Post, Chennai – 600 126. PAN: AAAAB 5003D v. The DCIT, Non-Corporate Circle-10(1), Chennai – 34. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri G. Baskar, Advocate & Shri I. Dinesh, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri AR.V. Sreenivasan, JCIT स ु नवाई कȧ तारȣख/Date of Hearing : 19.05.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 19.05.2022 आदेश /O R D E R PER MAHAVIR SINGH, VP: These two appeals by the assessee are arising out of different orders of Commissioner of Income Tax (Appeals)-12, Chennai in ITA Nos.99 & 100/CIT(A)-12/2016-17, both dated 30.10.2017. The assessments were framed by the ACIT / DCIT, Circle XIII, Chennai for the assessment years 2010-11 & 2011-12 u/s.143(3) of the 2 ITA Nos.39 & 40/Chny/2021 Income Tax Act, 1961 (hereinafter the ‘Act’) vide orders dated 30.03.2013 & 19.03.2014 respectively. 2. At the outset, it is noticed that the appeals filed by assessee are barred by limitation by 67 days. The assessee has filed condonation petition along with affidavit stating that the orders of CIT(A) dated 30.10.2017, were received by assessee only on 20.10.2020 but the appeals were filed only on 24.02.2021 due to Covid-19 pandemic. It means that there is a delay of 67 days. The ld.AR before us stated that this delay is due to pandemic period of Covid 19 and subsequent events and the Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. Since the Hon’ble Supreme Court has condoned the delay during the said period, respectfully following the same we condone the delay and admit the appeals. 3. The first common issue in these two appeals of assessee is as regards to the order of CIT(A) confirming the disallowance of 3 ITA Nos.39 & 40/Chny/2021 interest payment made to Airport Authority of India on the mobilization advance paid without deduction of TDS u/s.40(a)(ia) of the Act without considering the second proviso to section 40(a)(ia) of the Act. 4. For the assessment year 2010-11, the disallowance in respect of interest on mobilization advance paid to Airport Authority of India u/s.40(a)(ia) of the Act was Rs.1,26,89,902/- and for the assessment year 2011-12 the disallowance in respect of interest on mobilization advance paid to Airport Authority of India u/s.40(a)(ia) of the Act was Rs.1,97,856/- and in respect of rent paid at Rs.1,16,57,263/-. The AO disallowed and the CIT(A) simply confirmed the disallowance. Aggrieved assessee is in appeal before the Tribunal for both the years. 5. The ld.counsel for the assessee stated that the assessee want to file details that the interest and rent paid to Airport Authority of India on mobilization advance and building is already included by the recipient party i.e., Airport Authority of India and declared this receipt in their return of income. Hence, he requested that the matter may be restored back to the file of the AO to comply with the terms as prescribed under second proviso to section 40(a)(ia) of 4 ITA Nos.39 & 40/Chny/2021 the Act, so that the AO can carry out verification and accordingly, delete the corresponding liability created u/s.201(1A) of the Act. To this preposition, the ld. Senior DR has not objected. 6. After hearing both the sides, we set aside the orders of lower authorities on this issue and remit the matter back to the file of the AO. The assessee will file declaration as per the scheme of second proviso to section 40(a)(ia) of the Act and the AO will verify the same and accordingly decide the claim. In case, the recipient party i.e., Airport Authority of India has included the interest and rental income in their respective return of income, the AO will delete the disallowance. 7. The next issue in these two appeals of assessee is as regards to not allowing the TDS credit claimed at R.3,68,33,481/- in assessment year 2010-11 and Rs.3,33,968/- in assessment year 2011-12. 8. After hearing rival contentions and going through the facts and circumstances of the case, we direct the AO to go into the evidences of TDS claimed, after verifying the evidences allow the claim of 5 ITA Nos.39 & 40/Chny/2021 assessee accordingly. We direct the AO accordingly. This common issue of assessee’s appeals is allowed. 9. In the result, both the appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on 19 th May, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 19 th May, 2022 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ /CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF.