Income Tax Officer, Ward-3, Shillong V. M/s. S.S. Netcom (p) Limited, Shillong

ITA 461/GTY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3295 (ITAT-GUWAHATI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 09-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Non-deduction of tax; TDS
• Section: 143(3); 40(a)(ia); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI E -COURT AT KOLKATA BEFORE SHRI ABY. T. VARKEY, HONBLE JUDICIAL MEMBER & DR. A.L.SAINI, HONBLE ACCOUNTANT MEMBER ./ITA NO.461/GAU/2019 ( / ASSESSMENT YEAR:2013-14) INCOME TAX OFFICER, WARD 3, SHILLONG. AAYAKAR BHAWAN, M.G. ROAD, SHILLONG 793001. VS. M/S S.S. NETCOM PRIVATE LIMITED S.S. CHAMBERS, DHANKHETI, SHILLONG - 793003 ./ ./PAN/GIR NO.: AAHCS 2635 P (APPELLANT) .. (RESPONDENT) ./C.O. NO.01/GAU/2020 (IN ITA NO. 461/GAU/2019) ( / ASSESSMENT YEAR: 2007-08) M/S S.S. NETCOM PRIVATE LIMITED S.S. CHAMBERS, DHANKHETI, SHILLONG - 793003 VS. INCOME TAX OFFICER, WARD 3, SHILLONG. AAYAKAR BHAWAN, M.G. ROAD, SHILLONG 793001. ./ ./PAN/GIR NO.: AAEFN 8215 E (CROSS-OBJECTOR) .. (RESPONDENT) APPELLANT BY : SHRI AMITAVA SEN, JCIT, SR. DR RESPONDENT BY : SHRI K.M. ROY, AR / DATE OF HEARING : 10/09/2020 /DATE OF PRONOUNCEMENT : 18/11/2020 / O R D E R M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 2 22 2 PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2013-14 , ARE DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL), SHILLONG, IN APPEAL NO. CIT(A)/SHG/10133/2017-18 DATED 09.03.2018 WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U /S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 08.03.2016. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS F OLLOWS: I) THAT THE LD. CIT(A) HAS ERRED IN LAW & FACTS IN ALLOWING RELIEF OF RS. 2,18,67,711/- ON ADDITIONS MADE U/S 40(A)(IA) OF TH E ACT BY THE ASSESSING OFFICER FOR VIOLATION OF PROVISIONS OF SECTION 197( 1) OF THE ACT BY THE ASSESSEE. II) THAT THE LD. CIT(A) ERRED IN LAW AND FACTS BY B ASING HIS DECISION ON A CASE INVOLVING SECTION 195(1) OF THE ACT WHEREAS TH E INSTANT CASE DEALS ON THE APPLICABILITY OF SECTION 197(1) OF THE ACT. (III) FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, A LTER, AMEND ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF TH E HEARING OF THE APPEAL. 3. BRIEF FACTS QUA THE ISSUE ARE THAT DURING THE AS SESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE MADE PAYMENTS TO MEMBER S OF SCHEDULED TRIBES WHOSE INCOMES WERE EXEMPTED FROM PAYMENT OF INCOME TAX U/ S 10(26) OF THE ACT. THE ASSESSEE ALSO MADE SOME PAYMENTS TO NON-SCHEDULED T RIBES WHOSE INCOMES WERE NOT EXEMPTED FROM PAYMENT OF INCOME TAX U/S 10(26) OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT SINCE THE TRIBAL PAYEES WERE NOT LIABLE FOR INCOME- TAX, HENCE THERE WAS NO OCCA SION FOR DEDUCTION OF TAX AT SOURCE, THEREFORE NO ANY ADDITION SHOULD BE MADE UN DER SECTION 40(A)(IA) OF THE ACT. HOWEVER, THE ASSESSING OFFICER REJECTED THE CO NTENTION OF THE ASSESSEE AND MADE ADDITION UNDER SECTION 40(A)(IA) OF THE ACT TO THE TUNE OF RS.2,49,56,873/-. M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 3 33 3 4.AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) WHO HAS PARTLY DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THE LD CIT(A) OBSERVED THAT ASSE SSING OFFICER MADE TOTAL ADDITION TO THE TUNE OF RS. 2,49,56,873/-, AND OUT OF SAID TOTAL ADDITION, THE LD CIT(A) DISALLOWED RS.30,89,162/-, ON ACCOUNT OF NON -DEDUCTION OF TAX AT SOURCE ON PAYMENTS MADE TO NON-TRIBALS. 5. AGGRIEVED BY THE ORDER OF THELD CIT(A), THE REVE NUE IS IN APPEAL BEFORE US AND ASSESSEE ALSO FILED CROSS OBJECTION BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GON E THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCU MENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD. BEFOR E US, LD COUNSEL REITERATED THE SUBMISSIONS MADE BEFORE THE LD CIT(A).ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER, WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NO T BEING REPEATED FOR THE SAKE OF BREVITY. WE HAVE GONE THROUGH THE SUBMISSIONS OF TH E ASSESSEE AND NOTED THAT NO TDS SHOULD BE DEDUCTIBLE IN CASES OF PAYMENTS MADE TO INDIVIDUALS WHO ARE SPECIFIED AS SCHEDULE TRIBES UNDER THE SIXTH SCHEDU LE OF THE CONSTITUTION OF INDIA AND THEREBY THESE SCHEDULE TRIBES ARE EXEMPTED FROM THE PROVISIONS OF INCOME TAX ACT BY VIRTUE OF SECTION 10(26) OF THE INCOME T AX ACT. THUS, WHEN THE INCOME OF THE PAYEESARE EXEMPTED FROM TAX , THERE IS NO OCCASION FOR COLLECTING TAX AT SOURCE ON THE SUM PAYABLE TO THEM. AT THIS JUNCT URE IT IS APPROPRIATE TO QUOTE THE JUDGMENT OF THE HONORABLE SUPREME COURT IN THE CASE OF GE INDIA TECHNOLOGY CENTRE P. LTD VS. CIT, [2010] 327ITR 456 (SC)WHEREI N IT WAS HELD THAT THE MOST M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 4 44 4 IMPORTANT EXPRESSION IN SECTION 195(1) OF THE INCOM E TAX ACT ,1961 DEALT WITH DEDUCTION OF TAX AT SOURCE CONSISTS OF THE WORDS CHARGEABLE UNDER THE PROVISIONS OF THE ACT. A PERSON PAYING INTEREST OR ANY OTHER SUM TO A NON -RESIDENT IS NOT LIABLE TO DEDUCT TAX IF SUCH SUM IS NOT CHARGEABLE TO TAX UNDER THE ACT. THE EXPRESSION CHARGEABLE UNDER THE PROVISIONS OF THE A CT IN SECTION 195(1) SHOWS THAT THE REMITTANCE HAS GOT TO BE OF A TRADING RECEIPT, THE WHOLE OR PART OF WHICH IS LIABLE TO TAX IN INDIA. IF TAX IS NOT SO ASSESSABLE , THERE IS NO QUESTION OF TAX AT SOURCE TO BE DEDUCTED. THE PAYER IS NOT REQUIRED T O DEDUCT TAX AT SOURCE IF THE AMOUNT PAID IS NOT CHARGEABLE TO TAX UNDER THE PROV ISIONS OF THE ACT. 7. WE NOTE THAT LD CIT(A) DELETED THE ADDITION IN R ESPECT OF PAYMENTS MADE TO INDIVIDUALS WHO ARE SPECIFIED AS SCHEDULE TRIBES. T HE FINDINGS OF THE LD CIT(A) ARE AS FOLLOWS: 5.3 I HAVE CAREFULLY CONSIDERED THE MATTER. AS STA TED EARLIER, SOME OF THE PAYMENTS WEREGIVEN TO MEMBERS OF SCHEDULED TRIBES W HOSE INCOMES ARE EXEMPT FROM PAYMENT OF INCOME TAX U/S 10(26) OF THE ACT. A PPELLANT'S CONTENTION IS THAT SINCE THE TRIBAL PAYEES WERE NOT LIABLE FOR INCOME- TAX, THERE WAS NO OCCASION FOR DEDUCTION OF TAX AT SOURCE. HOWEVER, THE AO STRONGL Y RELIED ON THE DECISION OF HON'BLE AGARTALA HIGH COURT IN CASE OF CHANDRA MOHA N SINKU (SUPRA). PER CONTRA, APPELLANT RELIED ON DECISION OF HON'BLE JUR ISDICTIONAL TRIBUNAL IN THE CASE OF KOMMORAH LIMESTONE MINING CO LTD(SUPRA) AND THA T OF DECISION OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF SING KILLING (SUP RA). HON'BLE JURISDICTIONAL TRIBUNAL, GUWAHATI HAD OCCASION TO DEAL WITH IDENTI CAL QUESTION IN THE CASE OF KOMMORRAH LIMESTONE MINING COMPANY LTD VS ACIT, CIR CLE, SHILLONG) IT A NO. 100/GAU/2016 DECIDED ON 08.03.2018, IN THAT CASE, T HE ASSESSEE PAID SUM OF RS. 77,33,101/- TO A TRIBAL RESIDENT OF MEGHALAYA FOR H IRING OF LOADER AND EXCAVATOR. RENTAL PAYMENT OF RS. 17,57,412 WAS ALSO MADE TOOTH ER TRIBAL LANDLADY/LANDLORD. THE SAID PAYMENTS WERE DISALLOWED BY THE AO U/S 40( A)(IA) OF THE ACT AS TAX WAS NOT DEDUCTED AT SOURCE BY THE ASSESSEE. RELYING ON THE DECISION OF THE HON'BLE AGARTALA HIGH COURT IN CASE CHANDRA MOHAN SINKU (SU PRA), THE ORDER OF THE AO WAS CONFIRMED BY ME IN MY APPEAL ORDER DATED 18.07. 2016. HOWEVER, THE HON'BLE JURISDICTIONAL TRIBUNAL REVERSED MY ORDER AND DECID ED THE ISSUE IN FAVOUR OF APPELLANT. RELEVANT PORTION OF THE HON'BLE TRIBUNAL 'S ORDER IS EXTRACTED AS UNDER: 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF AUTHORITIES BELOW AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT C ASE, THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE MADE PAYMENTS FOR HIRING OF LOADER AND EXCAVATOR TO SHRI. L.S. NONGRUM OF RS.77,33,101/- WITHOUT DEDUCT ING TAX AT SOURCE U/S,194C OF THE ACT AND ALSO MADE PAYMENT OF LAND RENTTO SMT. R EKHILATYNSONG AND SHRI BHISONDOHKHRAT OF RS.17,57,412/- WITHOUT DEDUCTION OF TAX U/S 194-1 OF THE ACT. THE ASSESSEE EXPLAINEDBEFORE THE AO THAT AS THEY WE RE TRIBAL PERSONS, THEIR M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 5 55 5 INCOME WAS NOT TAXABLE AND HENCE NO TAX WAS DEDUCTE D AT SOURCE. THE AO NOT BEING SATISFIED WITH THIS EXPLANATION OF THE ASSESS EE DISALLOWED DEDUCTION OF RS. 77,33,101/- AND RS. 17,57,422/- BY INVOKING PROVISI ONS OF SECTION 40(A)(IA) OF THE ACT. 8. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF AO FOLLOWING THE DECISION OF HON'BLE AGARTALA HIGH COURT. 9. WE FIND THAT THE HON'BLE SUPREME COURT IN THE CA SE OF GE INDIA TECHNOLOGY CENTRE P. LTD VS. CIT, [2010] 327 ITR 456(SC) HAS H ELD THAT THE MOST IMPORTANT EXPRESSION IN SECTION 195(1) OF THE INCOME TAX ACT, 1961 DEALT WITH DEDUCTION OF TAX AT SOURCE CONSISTS OF THE WORDS CHARGEABLE UNDE R THE PROVISIONS OF THE ACT. A PERSON PAYING INTEREST OR ANY OTHER SUM TO A NON-RE SIDENT IS NOT LIABLE TO DEDUCT TAX IF SUCH SUM IS NOT CHARGEABLE TO TAX UNDER THE ACT. THE EXPRESSION CHARGEABLE UNDER THE PROVISIONS OF THE ACT IN SECTION 195(1) S HOWS THAT THE REMITTANCE HAS GOT TO BE OF A TRADING RECEIPT, THE WHOLE OR PART OF WH ICH IS LIABLE TO TAX IN INDIA. IF TAX IS NOT SO ASSESSABLE, THERE IS NO QUESTION OF TAX A T SOURCE TO BE DEDUCTED. AT READING OF THE ABOVE DECISION OF THE HON'BLE SUPREM E COURT SHOWS THAT THE PAYER IS NOT REQUIRED TO DEDUCT TAX AT SOURCE IF THE AMOU NT PAID IS NOT CHARGEABLE TO TAX UNDER THE PROVISIONS OF THE ACT. IN THE INSTANT CAS E, THE CONTENTION OF THE ASSESSEE IS THAT SINCE THE PAYEE TO WHOM THEPAYMENTS WERE MA DE ARE TRIBAL PERSONS AND BEING EXEMPT FROM INCOME TAX U/S 10(26) OF THE INCO ME TAX ACT, HE WAS NOT REQUIRED TO DEDUCT TAX AT SOURCE EITHER U/S,194C OR U/S 194-1 OF THE ACT FROM THE PAYMENTS MADE TO THEM. NO MATERIALS HASBEEN BROUGHT ON RECORD BY THE AO TO SHOW THAT THE AMOUNTS PAID BY THE ASSESSEE TOWARDS HIRING OF LOADER AND EXCAVATOR CHARGES PAID TO MR. L.S. NONGRUM OF RS. 7 7,33,101/- AND LAND RENT PAYMENT OF RS.17,57,452/- MADE TO SMTREKHILATYNSONG AND SHRI BHISONDOKHRAT, WAS CHARGEABLE TO TAX UNDER THE PROVISIONS OF THE A CT. THEREFORE, IN OUR CONSIDERED VIEW THE ASSESSEE WAS NOT LIABLE TO DEDU CT TAX AT SOURCE FROM THE PAYMENTS MADE AND ACCORDINGLY THE AO WAS NOT JUSTIF IED IN DISALLOWING THE PAYMENTS MADE U/S.40(A)(IA) OF THE ACT. HENCE, WE S ET ASIDE THE ORDERS OF LOWER AUTHORITIES AND VACATE THE DISALLOWANCE OF RS. 77,3 3,101/- AND RS. 17,57,452- AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE.' HON'BLE JURISDICTIONAL TRIBUNAL HAD CONSIDERED THE DECISIONS OF HON'BLE GAUHATI HIGH COURT IN CASE OF SING KILING( SUPRA) AND THAT OF HON'BLE AGARTALA HIGLI COURT IN CASE OF CHANDRA MOHAN SINKU(SUPRA). IT HAD ALSO CONSIDERED A DECISION OF HON'BLE APEX COURT ON THE SUBJECT. A RULING HAD THEREAFTER BEEN GIVEN TO THE EFFECT THAT PAYMENTS MADE TO PERSONS WHOSE INCOME I S NOT CHARGEABLE TO TAX WILL NOT INVITE THE REQUIREMENT OF TAX DEDUCTION AT SOUR CE AND CONSEQUENTIAL DISALLOWANCE OF SUCH PAYMENTS U/S 40(A)(IA) OF THE ACT IN THE EVENT OF FAILURE TO DEDUCT TAX BY THE PAYER. CONSIDERING THE BINDING DE CISION OF HON'BLE JURISDICTIONAL TRIBUNAL ON IDENTICAL ISSUE, DISALLO WANCES OF PAYMENT TO TRIBALS WHOSE INCOMES ARE EXEMPT U/S 10(26) IS TO BE REVER SED. IN RESPECT OF PAYMENT TO NON-TRIBALS, ASSESSEE CLAIM IS THAT THE RECIPIENTS DISCLOSED THE PAYMENTS IN THEIR RESPECTIVE RETURNS OF INCOME. BUT NO DOCUMENTARY EV IDENCE IN THIS REGARD WAS FILED. THE NON-TRIBALS PAYEES HAVE TO SATISFY THE C ONDITION LAID DOWN IN FIRST PROVISO TO SUB-SECTION(L) OF SECTION 201. SINCE NO EVIDENCE IN THIS REGARD WAS FURNISHED, THE PAYMENTS TO NON-TRIBALS HAVE TO BE D ISALLOWED. M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 6 66 6 5.3.1 IN VIEW OF THE ABOVE DISCUSSION, OUT OF TOTAL ADDITION OF RS. 2,49,56,873/- THE FOLLOWING DISALLOWANCE ON ACCOUNT OF NON-DEDUCTION OF TAX AT SOURCE ON PAYMENTS MADE TO NON-TRIBALS IS SUSTAINED. (XI) CONSULTANCY CHARGE RS. 93,960/- (XII) BLAZE FLASH CARRIER RS. 2,37,050/- (XII) VEHICLE HIRING CHARGES RS. 15,66,579/- (XIV) REPAIRS & MAINTENANCE RS. 8,98,853/- (XV) COMPUTER HIRING CHARGED RS. 1,50,00/- (XVI) A.C. PAUL & CO. RS. 1,42,720/- TOTAL RS. 30,89,162/- 8. HAVING GONE THROUGH THE ABOVE FINDINGS OF LD CIT (A), WE NOTE THAT THERE IS NO ANY INFIRMITY IN THE ORDER OF LD CIT(A). THAT BEING SO, WE DECLINE TO INTERFERE WITH THE ORDER OF ID. CIT(A) IN DELETING THE AFORESAID A DDITION IN RESPECT OF PAYMENTS MADE TO INDIVIDUALS WHO ARE SPECIFIED AS SCHEDULE T RIBESAND CONFIRMED THE ADDITION IN CASE OF PAYMENTS TO NON-SCHEDULE TRIBES . HIS ORDER ON THIS ISSUE IS THEREFORE UPHELD AND THE GROUNDS OF APPEAL OF THE R EVENUE ARE DISMISSED. 9. NOW WE SHALL ADJUDICATE CROSS-OBJECTIONS FILED B Y THE ASSESSEE IN C.O NO.01/GAU/2020 WHEREIN THE GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. THAT SINCE THE PAYEES HAVE DISCLOSED THE PAYMEN T IN THE RETURN OF INCOME THERE IS NO SCOPE FOR DISALLOWANCE PARTICULARLY WHE N SUCH FACT HAS NOT BEEN CONTROVERTED. 2. THE DISALLOWANCE SUSTAINED FOR RS.30,89,162/- DU E TO NON-DEDUCTION OF TAX AT SOURCE MAY BE RESTRICTED TO 30% OF THE EXPENSES CONSIDERING TO BE THE AMENDMENT AS CURATIVE, WITHOUT PREJUDICE TO GROUND NO.1. 3. THAT THE CROSS-OBJECTOR RESERVES THE RIGHT TO RA ISE ADDITIONAL GROUNDS. 10. LEARNED COUNSEL FOR THE ASSESSEE, DURING THE CO URSE OF HEARING, INFORMS THE BENCH THAT THE ASSESSEE DID NOT WANT TO PRESS GROUN D NO.2 OF THE CROSS OBJECTIONS, THEREFORE WE DISMISS THE GROUND NO. 2 O F CROSS-OBJECTIONS, AS NOT PRESSED. M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 7 77 7 11. SO FAR GROUND NO.1 OF CROSS OBJECTION IS CONCE RNED, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS BEFORE THE BENCH THAT THE AMOUNT R ECEIVED BY NON-SCHEDULE TRIBESHAVE BEEN INCLUDED BY THE NON-SCHEDULE TRIBES IN THEIR COMPUTATION OF TOTAL INCOME AND RETURN OF INCOME, AND THE SAMEIS GETTING REFLECTED IN THEIR RETURN OF INCOME AND COMPUTATION OF TOTAL INCOME, THEREFORE T HE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO PRODUCE PAYEES OR TO FILE THE COMPUT ATION OF TOTAL INCOME AND RETURN OF INCOME OF THESE PAYEES BEFORE THE ASSESSING OFF ICER, THEREFORE THIS ISSUE SHOULD BE REMITTED BACK TO THE FILE OF THE ASSESSIN G OFFICER FOR FRESH ADJUDICATION. 12.ON THE OTHER HAND, THE LD. DR FOR THE REVENUE OP POSED THE PLEA TAKEN BY THE LD. COUNSEL FOR THE ASSESSEE. 13. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT OUT OF TOTAL ADDITION OF RS. 2 ,49,56,873/- THE FOLLOWING DISALLOWANCE ON ACCOUNT OF NON-DEDUCTION OF TAX AT SOURCE ON PAYMENTS MADE TO NON-TRIBALSWAS SUSTAINED BY LD CIT(A): (XI) CONSULTANCY CHARGE RS. 93,960/- (XII) BLAZE FLASH CARRIER RS. 2,37,050/- (XII) VEHICLE HIRING CHARGES RS. 15,66,579/- (XIV) REPAIRS & MAINTENANCE RS. 8,98,853/- (XV) COMPUTER HIRING CHARGED RS. 1,50,00/- (XVI) A.C. PAUL & CO. RS. 1,42,720/- TOTAL RS. 30,89,162/- WE ARE OF THE VIEW THAT IF ABOVE PAYEES HAVE INCLUD ED THE RECEIPTS IN THEIRBOOKS OF ACCOUNTS AND HAVE OFFERED FOR TAXES THEN THE DISALL OWANCE ON ACCOUNT OF NON- DEDUCTION OF TDS WILL NOT ARISE. THAT IS, IF THESE PAYEES HAVE INCLUDED THE RECEIPTS INCOMPUTATION OF THE TOTAL INCOME AND RETURN OF INC OME THEN IT WOULD BE SUFFICIENT COMPLIANCE OF TDS PROVISIONS AND NO DISALLOWANCE SH OULD BE MADE UNDER SECTION 40(A)(IA) OF THE ACT. THEREFORE, WE DIRECT THE ASSE SSING OFFICER TO EXAMINE WHETHER THESE ABOVE NOTED PAYEES HAD INCLUDED THE R ECEIPTSIN THEIR BOOKS OF M/S S.S. NETCOM PRIVATE LIMITED ITA NO.461/GAU/2019 & C.O. NO. 01/GAU/2020 ASSESSMENT YEAR:2013-14 P PP PA AA AG GG GE EE E | || | 8 88 8 ACCOUNTS/COMPUTATION OF TOTAL INCOME. IF THEY HAD I NCLUDED THE RECEIPTS IN THE BOOKS OF ACCOUNTS/ COMPUTATION TOTAL INCOME,THEN IN THAT SITUATION, NO ANY DISALLOWANCE SHOULD BE MADE. HOWEVER, IF THESE PAYE ES DID NOT INCLUDE THE RECEIPTS IN THEIR BOOKS OF ACCOUNTS/ COMPUTATION OF TOTAL INCOME, THEN THE ASSESSING OFFICER MAY MAKE THE DISALLOWANCE IN ACCO RDANCE WITH LAW. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FORSTATISTICAL PURPOSES. 14. IN THE RESULT, THE CROSS-OBJECTION FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 18.11.2020 SD/- ( ABY. T. VARKEY ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 18/11/2020 ( RS, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD 3, SHILLONG. 2. M/S S.S. NETCOM PRIVATE LIMITED, SHILLONG. 3. C.I.T(A)- 4. C.I.T.-. 5. CIT(DR),. 6. GUARD FILE. TRUE COPY BY ORDER SR. PRIVATE SECRETARY ITAT, KOLKATA BENCHES