COLUMBS OVERSEAS LTD, Jaipur V. DCIT, Jaipur

ITA 445/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2114 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 30-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRITHAVIRAJ MEENA
• Assessee Lawyers: ROHAN SAGANI
• Keywords: Rule of consistency; Retrospective amendment; Additional evidence
• Section: 201(1); 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 445/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13 COLUMBUS OVERSEAS LTD. 16, GOVIND MARG, ADRASH NAGAR, JAIPUR. CUKE VS. DCIT, CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACC7498P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDEN T FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ROHAN SAGANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI PRITHAVI RAJ MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/01/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 05/02/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17.03.2017 OF CIT(A) FOR THE ASSESSMENT YEAR 2012-1 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS AS UNDER:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD . AO IN DISALLOWING A SUM OF RS. 43,15,295/- U/S 40(A)(IA) OF INCOME TAX ACT, 1961. THE ACTION OF LD. CIT(A) IS ILLEGAL, UNJ USTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEAS E BE GRANTED BY QUASHING THE SAID DISALLOWANCE OF RS. 43,15,295/ -. 2. THE ASSESSEE COMPANY CRAVES ITS RIGHT TO ADD, AM END OR ALTER ANY OF THE GROUNDS ON BEFORE THE HEARING. ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 2 2. THE ASSESSEE HAS DEBITED THE EXPENDITURE ON ACCO UNT OF ADVERTISEMENT AND PUBLICITY EXPENDITURE OF RS. 37,0 8,645/-. SIMILARLY AN AMOUNT OF RS. 6,06,650/-WAS ALSO INCURRED FOR ADVER TISEMENT PAID TO SGM COMMUNICATIONS. THE AO NOTED THAT THE ASSESSEE HAS NOT DEDUCTED TDS ON THESE AMOUNTS AND THEREFORE, DISALL OWED A TOTAL SUM OF RS. 43,15,295/- U/S 40(A)(IA) OF THE INCOME TAX ACT. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT( A) AND CONTENDED THAT SINCE THE RECIPIENT OF THE AMOUNTS HAVE ALREAD Y CONSIDERED IT FOR COMPUTING THEIR TAXABLE INCOME AND THEREFORE, IN VI EW OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT NO DISALL OWED IS CALLED FOR. IN SUPPORT OF HIS CONTENTION THAT THE ASSESSEE PRODUCE BEFORE THE LD. CIT(A) FORM 26A AS ADDITIONAL EVIDENCE. THE ASSESSE E PLACED RELIANCE ON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P.) LTD. 377 ITR 635 AS WELL A S DECISIONS OF AGRA BENCH OF THE TRIBUNAL IN CASE OF RAJEEV KUMAR AGARW AL VS. ACIT 165 TTJ 228. HOWEVER, THE LD. CIT(A) DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE AND ACCORDINGLY DECLINED TO ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 3. BEFORE US, LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE FILED THE ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) WHICH IS NOTHING BUT ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 3 FORM 26A ISSUED BY THE RECIPIENT OF THE MONEY TO S HOW THAT THEY HAVE INCLUDED THE AMOUNT IN COMPUTATION OF INCOME OFFERE D TO TAX. FURTHER, THIS EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE CA N BE VERIFIED FROM THE RECORD OF THE REVENUE DEPARTMENT AND HENCE, IT DOES NOT REQUIRE ANY INVESTIGATION OF FACTS. IN SUPPORT OF HIS CONTE NTION HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN CASE OF CIT VS. NTPC 229 ITR 383 AND SUBMITTED THAT WHEN THE ASSESSEE RA ISED THE ADDITIONAL GROUND WHICH IS PURELY LEGAL IN NATURE T HEN, THE ASSESSEE SHOULD NOT HAVE BEEN PREVENTED FROM RAISING THE SAI D QUESTION AS WELL THE FAILING OF THE ADDITIONAL EVIDENCE TO SHOW THAT THE RECIPIENT OF THE AMOUNT HAVE ALREADY CONSIDERED THE SAME AS PART OF THEIR TOTAL INCOME OFFERED TO TAX. HE HAS RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ANSAL LANDMARK TOWNSHIP (P ) LTD (SUPRA) AS WELL AS FOLLOWING DECISION OF THIS TRIBUNAL AS UNDE R:- VED PRAKASH SAMARIYA VS. ACIT IN ITA NO. 116/JP/201 5 M/S MORANI FOURWHEELS PVT. LTD. VS. ACIT IN ITA NO. 175/JP/2016 M/S G.B. IMPEX VS. ITO IN ITA NO. 430/JP/2016 SMT. PREM LATA GUPTA VS. ACIT IN ITA NO. 56/JP2016 SHRI RAKESH TAK VS. ITO IN ITA NO. 888/JP2014 ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 4 4. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE LD. CIT(A) HAS RELIED UPON THE DECISION OF HONBLE KERALA HIGH COU RT IN CASE OF THOMAS GEORGE MUTHOOT VS. CIT 63 TAXMANN.COM 99. HE HAS ALSO RELIED UPON THE DECISION OF PUNJAB AND HARYANA HIGH COURT PMS DIESELS VS. CIT 374 ITR 562. THUS, THE LD. DR HAS SUBMITTED THAT WHEN THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT IS P ROSPECTIVE AND NOT RETROSPECTIVE THEN THE ADDITIONAL EVIDENCE SOUGHT T O BE FILED BY THE ASSESSEE WOULD NOT HELP THE CASE OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AS SESSEE HAS NOT DEBITED TDS IN RESPECT OF THE EXPENDITURE IN QUESTI ON THOUGH THE TDS WAS REQUIRED TO DEDUCT AS PER PROVISIONS OF SECTION 149C OF THE ACT. HOWEVER, THE ASSESSEE CLAIMED THAT THE RECIPIENT OF THE AMOUNT HAVE INCLUDED THE SAME WHILE COMPUTING THEIR INCOME OFFE RED TO TAX. THEREFORE, IN VIEW OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT NO DISALLOWANCE IS CALLED FOR. IN SUPPORT OF ITS CO NTENTION THE ASSESSEE RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ANSAL LANDMARK TOWNSHIP PVT. LTD. (SUPRA). ON T HE OTHER HAND, THE LD. CIT(A) HAS RELIED UPON THE DECISION OF HONBLE KERALA HIGH COURT IN CASE OF THOMS GEORGE MUTHOOT VS. CIT (SUPRA). THERE ARE DIVERGENT ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 5 VIEWS BY THE DIFFERENT HIGH COURTS ON THIS ISSUE OF APPLICABILITY OF SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT WITH RETROSPECTIVE EFFECT OR PROSPECTIVE EFFECT. THE HONBLE DELHI HIGH COURT IN CASE OF CIT VS. ANSAL LANDMARK TOWNSHIP PVT. LTD. (SUPRA) WHILE CON SIDERING THIS ISSUE HAS HELD IN PARA 9 TO 14 AS UNDER:- 9. IT IS SEEN THAT THE SECOND PROVISO TO SECTION 40(A) (IA) WAS INSERTED BY THE FINANCE ACT, 2012 WITH EFFECT FROM 1ST APRIL 2013. THE EFFECT OF THE SAID PROVISO IS TO INTRODUCE A LE GAL FICTION WHERE AN ASSESSEE FAILS TO DEDUCT TAX IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII B. WHERE SUCH ASSESSEE IS DEEMED NO T TO BE AN ASSESSEE IN DEFAULT IN TERMS OF THE FIRST PROVISO T O SUB-SECTION (1) OF SECTION 201 OF THE ACT, THEN, IN SUCH EVENT, '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 R ESIDENT PAYEE REFERRED TO IN THE SAID PROVISO'. 10. IT IS POINTED OUT BY LEARNED COUNSEL FOR THE REVEN UE THAT THE FIRST PROVISO TO SECTION 201(1) OF THE ACT WAS INSE RTED WITH EFFECT FROM 1ST JULY 2012. THE SAID PROVISO READS AS UNDER : 'PROVIDED THAT ANY PERSON, INCLUDING THE PRINCIPAL OFFICER OF A COMPANY, WHO FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER ON T HE SUM PAID TO A RESIDENT OR ON THE SUM CREDITED TO THE ACCOUNT OF A RESIDENT SHALL NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPE CT OF SUCH TAX IF SUCH RESIDENT (I ) HAS FURNISHED HIS RETURN OF INCOME UNDER SECTION 13 9; (II ) HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING INCOME IN SUCH RETURN OF INCOME; AND ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 6 (III ) HAS PAID THE TAX DUE ON THE INCOME DECLARED BY HIM IN SUCH RETURN OF INCOME; AND THE PERSON FURNISHES A CERTIFICATE TO THIS EFFE CT FROM AN ACCOUNTANT IN SUCH FORM AS MAY BE PRESCRIBED.' 11. THE FIRST PROVISO TO SECTION 201(1) OF THE ACT HAS BEEN INSERTED TO BENEFIT THE ASSESSEE. IT ALSO STATES THAT WHERE A PERSON FAILS TO DEDUCT TAX AT SOURCE ON THE SUM PAID TO A RESIDENT OR ON THE SUM CREDITED TO THE ACCOUNT OF A RESIDENT SUCH PERSON S HALL NOT BE DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF S UCH TAX IF SUCH RESIDENT HAS FURNISHED HIS RETURN OF INCOME UNDER S ECTION 139 OF THE ACT. NO DOUBT, THERE IS A MANDATORY REQUIREMENT UND ER SECTION 201 TO DEDUCT TAX AT SOURCE UNDER CERTAIN CONTINGENCIES , BUT THE INTENTION OF THE LEGISLATURE IS NOT TO TREAT THE AS SESSEE AS A PERSON IN DEFAULT SUBJECT TO THE FULFILMENT OF THE CONDITI ONS AS STIPULATED IN THE FIRST PROVISO TO SECTION 201(1). THE INSERTION OF THE SECOND PROVISO TO SECTION 40(A)(IA) ALSO REQUIRES TO BE VI EWED IN THE SAME MANNER. THIS AGAIN IS A PROVISO INTENDED TO BENEFIT THE ASSESSEE. THE EFFECT OF THE LEGAL FICTION CREATED THEREBY IS TO TREAT THE ASSESSEE AS A PERSON NOT IN DEFAULT OF DEDUCTING TA X AT SOURCE UNDER CERTAIN CONTINGENCIES. 12. RELEVANT TO THE CASE IN HAND, WHAT IS COMMON TO BO TH THE PROVISOS TO SECTION 40(A)(IA) AND SECTION 201(1) OF THE ACT IS THAT AS LONG AS THE PAYEE/RESIDENT (WHICH IN THIS CASE IS A LIP) HAS FILED ITS RETURN OF INCOME DISCLOSING THE PAYMENT RECEIVED BY AND IN WHICH THE INCOME EARNED BY IT IS EMBEDDED AND HAS ALSO PA ID TAX ON SUCH INCOME, THE ASSESSEE WOULD NOT BE TREATED AS A PERS ON IN DEFAULT. AS FAR AS THE PRESENT CASE IS CONCERNED, IT IS NOT DISPUTED BY THE REVENUE THAT THE PAYEE HAS FILED RETURNS AND OFFERE D THE SUM RECEIVED TO TAX. 13. TURNING TO THE DECISION OF THE AGRA BENCH OF ITAT IN RAJIV KUMAR AGARWAL'S CASE (SUPRA ), THE COURT FINDS THAT IT HAS UNDERTAKEN A THOROUGH ANALYSIS OF THE SECOND PROVIS O TO SECTION 40(A)(IA) OF THE ACT AND ALSO SOUGHT TO EXPLAIN THE RATIONALE BEHIND ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 7 ITS INSERTION. IN PARTICULAR, THE COURT WOULD LIKE TO REFER TO PARA 9 OF THE SAID ORDER WHICH READS AS UNDER: 'ON A CONCEPTUAL NOTE, PRIMARY JUSTIFICATION FOR SU CH A DISALLOWANCE IS THAT SUCH A DENIAL OF DEDUCTION IS TO COMPENSATE FOR THE LOSS OF REVENUE BY CORRESPONDING INCOME NOT BEING TAKEN INT O ACCOUNT IN COMPUTATION OF TAXABLE INCOME IN THE HANDS OF THE R ECIPIENTS OF THE PAYMENTS. SUCH A POLICY MOTIVATED DEDUCTION RESTRIC TIONS SHOULD, THEREFORE, NOT COME INTO PLAY WHEN AN ASSESSEE IS A BLE TO ESTABLISH THAT THERE IS NO ACTUAL LOSS OF REVENUE. THIS DISAL LOWANCE DOES DEINCENTIVIZE NOT DEDUCTING TAX AT SOURCE WHEN SUCH TAX DEDUCTIONS ARE DUE, BUT, SO FAR AS THE LEGAL FRAMEWORK IS CONC ERNED, THIS PROVISION IS NOT FOR THE PURPOSE OF PENALIZING FOR THE TAX DEDUCTION AT SOURCE LAPSES. THERE ARE SEPARATE PENAL PROVISIO NS TO THAT EFFECT. DEINCENTIVIZING A LAPSE AND PUNISHING A LAPSE ARE T WO DIFFERENT THINGS AND HAVE DISTINCTLY DIFFERENT, AND SOMETIMES MUTUALLY EXCLUSIVE, CONNOTATIONS. WHEN WE APPRECIATE THE OBJ ECT OF SCHEME OF SECTION 40(A)(IA), AS ON THE STATUTE, AND TO EXA MINE WHETHER OR NOT, ON A 'FAIR, JUST AND EQUITABLE' INTERPRETATION OF LAW AS IS THE GUIDANCE FROM HON'BLE DELHI HIGH COURT ON INTERPRET ATION OF THIS LEGAL PROVISION, IN OUR HUMBLE UNDERSTANDING, IT CO ULD NOT BE AN 'INTENDED CONSEQUENCE' TO DISALLOW THE EXPENDITURE, DUE TO NON- DEDUCTION OF TAX AT SOURCE, EVEN IN A SITUATION IN WHICH CORRESPONDING INCOME IS BROUGHT TO TAX IN THE HANDS OF THE RECIPIENT. THE SCHEME OF SECTION 40(A)(IA), AS WE S EE IT, IS AIMED AT ENSURING THAT AN EXPENDITURE SHOULD NOT BE ALLOWED AS DEDUCTION IN THE HANDS OF AN ASSESSEE IN A SITUATION IN WHICH IN COME EMBEDDED IN SUCH EXPENDITURE HAS REMAINED UNTAXED DUE TO TAX WITHHOLDING LAPSES BY THE ASSESSEE. IT IS NOT, IN OUR CONSIDERE D VIEW, A PENALTY FOR TAX WITHHOLDING LAPSE BUT IT IS A SORT OF COMPE NSATORY DEDUCTION RESTRICTION FOR AN INCOME GOING UNTAXED DUE TO TAX WITHHOLDING LAPSE. THE PENALTY FOR TAX WITHHOLDING LAPSE PER SE IS SEPARATELY PROVIDED FOR IN SECTION 271C, AND, SECTION 40(A)(IA ) DOES NOT ADD TO THE SAME. THE PROVISIONS OF SECTION 40(A)(IA), AS T HEY EXISTED PRIOR TO INSERTION OF SECOND PROVISO THERETO, WENT MUCH B EYOND THE ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 8 OBVIOUS INTENTIONS OF THE LAWMAKERS AND CREATED UND UE HARDSHIPS EVEN IN CASES IN WHICH THE ASSESSEE'S TAX WITHHOLDI NG LAPSES DID NOT RESULT IN ANY LOSS TO THE EXCHEQUER. NOW THAT THE L EGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMING S OF PROVISION, AND THUS OBVIATE THE UNINTENDED HARDSHIP S, SUCH AN AMENDMENT IN LAW, IN VIEW OF THE WELL SETTLED LEGAL POSITION TO THE EFFECT THAT A CURATIVE AMENDMENT TO AVOID UNINTENDE D CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN N ATURE EVEN THOUGH IT MAY NOT STATE SO SPECIFICALLY, THE INSERT ION OF SECOND PROVISO MUST BE GIVEN RETROSPECTIVE EFFECT FROM THE POINT OF TIME WHEN THE RELATED LEGAL PROVISION WAS INTRODUCED. IN VIEW OF THESE DISCUSSIONS, AS ALSO FOR THE DETAILED REASONS SET O UT EARLIER, WE CANNOT SUBSCRIBE TO THE VIEW THAT IT COULD HAVE BEE N AN 'INTENDED CONSEQUENCE' TO PUNISH THE ASSESSEES FOR NON-DEDUCT ION OF TAX AT SOURCE BY DECLINING THE DEDUCTION IN RESPECT OF REL ATED PAYMENTS, EVEN WHEN THE CORRESPONDING INCOME IS DULY BROUGHT TO TAX. THAT WILL BE GOING MUCH BEYOND THE OBVIOUS INTENTION OF THE SECTION. ACCORDINGLY, WE HOLD THAT THE INSERTION OF SECOND P ROVISO TO SECTION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NATURE AND IT HAS RETROSPECTIVE EFFECT FROM 1ST APRIL, 2005, BEING TH E DATE FROM WHICH SUB CLAUSE (IA) OF SECTION 40(A) WAS INSERTED BY TH E FINANCE (NO. 2) ACT, 2004.' 14. THE COURT IS OF THE VIEW THAT THE ABOVE REASONING OF THE AGRA BENCH OF ITAT AS REGARDS THE RATIONALE BEHIND THE I NSERTION OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT AND ITS CONCLUSION THAT THE SAID PROVISO IS DECLARATORY AND CURATIVE A ND HAS RETROSPECTIVE EFFECT FROM 1ST APRIL 2005, MERITS AC CEPTANCE. WE FURTHER NOTE THAT A SIMILAR HAS BEEN TAKEN BY TH E OTHER HIGH COURTS INCLUDING HONBLE ALLAHABAD HIGH COURT IN CASE OF A LLAHABAD WHOLESALE CENTRAL COOP. STORE VS. PR. CIT 248 TAXMANN 302. FU RTHER, THE COORDINATE BENCHES OF THIS TRIBUNAL IN SERIES OF DE CISIONS HAVE TAKEN A ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 9 CONSISTENT VIEW THAT THE SECOND PROVISO TO SECTION 40(A)(IA) IS DECLARATORY IN NATURE AND THEREFORE, IT HAS TO BE G IVEN RETROSPECTIVE EFFECT. THOUGH A DIVERGENT VIEW IS TAKEN BY THE HON BLE KERALA HIGH COURT IN CASE OF THOMAS GEORGE MUTHOOT VS. CIT HOWE VER, TO MAINTAIN THE RULE OF CONSISTENCY OF THIS TRIBUNAL HAS BEEN T AKING A VIEW ON THIS ISSUE BY FOLLOWING THE DECISION OF HONBLE DELHI HI GH COURT IN CASE OF CIT VS. ANSAL LANDMARK TOWNSHIP PVT. LTD. (SUPRA). ACCORDINGLY FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT AS WELL AS DECISIONS OF THE COORDINATE BENCH OF THIS TRIBUNAL AS RELIED UPO N BY THE ASSESSEE WE HOLD THAT THE SECOND PROVISO TO SECTION 40(A)(IA ) IS APPLICABLE WITH RETROSPECTIVE EFFECT. CONSEQUENTLY IF RECIPIENT OF THE AMOUNT HAS CONSIDERED THE SAME FOR COMPUTATION ITS INCOME OFFE RED TO TAX THEN NO DISALLOWANCE IS CALLED FOR U/S 40(A)(IA) OF THE ACT . 6. THE ASSESSEE FILED THE ADDITIONAL EVIDENCE IN SU PPORT OF ITS CLAIM THAT THE RECIPIENT HAVE INCLUDED THIS AMOUNT IN THE INCOME OFFERED TO TAX HOWEVER, THE LD. CIT(A) DECLINED TO ADMIT THE A DDITIONAL EVIDENCE. WE FIND THAT THE ADDITIONAL EVIDENCE FILED BY THE A SSESSEE CAN BE VERIFIED BY THE AO FROM THE RECORD OF THE DEPARTMEN T OR OTHERWISE. HENCE, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF TH E CASE WE ADMIT THE ADDITIONAL EVIDENCE AND DIRECT THE AO TO VERIFY THE ADDITIONAL EVIDENCE ITA NO. 445/JP/2017 COLUMBUS OVERSEAS LTD. VS. DCIT 10 FILED BY THE ASSESSEE AND IN CASE THE AO IS SATISFI ED WITH THE EVIDENCE FILED BY THE ASSESSEE THAT THE RECIPIENT OF THE AMO UNTS HAVE CONSIDERED THE SAME WHILE COMPUTING THEIR INCOME OFFERED TO TA X THEN, IN VIEW OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT NO DISALLOWANCE CAN BE MADE U/S 40(A)(IA. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 05/02/2018 SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/02/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- COLUMBUS OVERSEAS LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT. CIRCLE-6, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 445/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR