INDUSTRIAL X-RAY & ALLIED RADIOGRAPHERS (INDIA) P. LTD, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 10(1)(1), MUMBAI

ITA 5201/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6623 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 09-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S KABRA SHRI R
• Keywords: Retrospective amendment; Revised return; TDS; Set aside
• Section: 143(3); 40(a)(ia); 201(1); 201; 6

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE SHRI G. MANJUNATHA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER, ITA NO.5201/MUM/2017 ASSESSMENT YEAR: 2012-13 INDUS TRIAL X - RAY & ALLIED RADIOGRAPHERS (I) PVT. LTD. 102, 1 ST FLOOR FAIZAN APARTMENTS, S.V. ROAD, JOGESHWARI (WEST), MUMBAI-400002 / VS. DCIT - 10(1)(1), ROOM NO.209, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 ( /ASSESSEE) ( / REVENUE) P.A. NO.AAACI1419A / DATE OF HEARING : 05/02/2019 / DATE OF ORDER: 27/02/2019 / O R D E R PER G. MANJUNATHA, (ACCOUNTANT MEMBER) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF THE LD. CIT(A)-17, MUMBAI, DATED 08/05/2017 AND IT PERTAINS TO ASSESSM ENT YEAR 2012-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -17, MUMBAI, HEREINAFTER REFERRED TO AS THE 'CIT(APPEALS)', ERRED IN DISMISS ING THE GROUND OF APPEAL RAISED BEFORE HIM THAT THE APPELLANT'S CLAIM FOR WITHDRAWA L OF DISALLOWANCE MADE IN THE RETURN / ASSESSEE BY SHRI NITESH JOSHI & SHRI D.S. KABRA / REVENUE BY SHRI R. SINDHU 2 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. OF INCOME MAY PLEASE BE ALLOWED AND THE ASSESSING O FFICER BE DIRECTED TO REDUCE THE ASSESSED TOTAL INCOME BY AN AMOUNT OF RS.4,70,462/- BY OBSERVING THAT NO DETAIL WAS AVAILABLE WITH THE ASSESSING OFFICER AND FURTHER TH AT THE COMPUTATION DOES NOT SHOW ANY DETAIL REQUIRED TO BE SCRUTINIZED FOR THE PURPO SE OF SECOND PROVISO TO SECTION 40A(IA) OF THE IT ACT. YOUR APPELLANTS SUBMIT THAT, ON THE FACTS AND IN TH E CIRCUMSTANCES OF ITS CASE, THE CIT(APPEALS) OUGHT TO HAVE ADMITTED THE CLAIM OF TH E APPELLANTS AND DIRECTED THE ASSESSING OFFICER TO REDUCE THE ASSESSED TOTAL INCO ME BY AN AMOUNT OF RS.4,70,462/- AS PROVIDED FOR IN THE SECOND PROVISO TO SECTION 40 A(IA) OF THE IT ACT. 2. WITHOUT PREJUDICE TO THE ABOVE GROUND OF APPEAL, IT IS SUBMITTED THAT, THE CIT(APPEALS) ERRED IN UPHOLDING THE ACTION OF THE A SSESSING OFFICER IN NOT ADMITTING THE REVISED COMPUTATION OF INCOME FILED BEFORE HIM DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS TO WITHDRAW THE DISALLOWANCE MADE U/S 40A(IA) OF THE IT ACT IN THE COMPUTATION FILED ALONGWITH THE RETURN OF IN COME. YOUR APPELLANTS SUBMIT THAT, ON THE FACTS AND IN TH E CIRCUMSTANCES OF ITS CASE, THE ASSESSING OFFICER OUGHT TO HAVE CONSIDERED THE REVI SED COMPUTATION OF INCOME FILED BEFORE HIM DURING THE COURSE OF THE ASSESSMENT PROC EEDINGS AND ASSESSED THE CORRECT TOTAL INCOME ACCORDINGLY. 3. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , IT IS SUBMITTED THAT, THE CIT(APPEALS) ERRED IN COMING TO THE CONCLUSION THAT THE JUDGMENT IN FAVOUR OF REVENUE HAS CERTAINLY GOT MORE WEIGHTAGE WHEN THE SLP FILED BY THE REVENUE AGAINST THE FAVOURABLE JUDGMENT TO THE ASSESSEE IN ANSAL LANDMA RK TOWNSHIP PVT. LTD. HAS BEEN ADMITTED BY THE HON'BLE SUPREME COURT AND DECIDING THE ISSUE IN APPEAL BEFORE HIM AGAINST THE ASSESSEE. YOUR APPELLANTS SUBMIT THAT, ON THE FACTS AND IN TH E CIRCUMSTANCES OF ITS CASE, THE RATIO OF A DECISION, EVEN OF NON-JURISDICTIONAL HIGH COUR T, IS APPLICABLE UNLESS THE OPERATION OF THE SAID DECISION IS STAYED BY A COMPETENT COURT AND FURTHER THAT ADMISSION OF AN SLP AGAINST THE FAVOURABLE JUDGMENT DOES NOT DILUTE THE OPERATION OF THE JUDGMENT. 4. WITHOUT PREJUDICE TO THE AFORESAID GROUNDS OF AP PEAL, IT IS SUBMITTED THAT, THE SECOND PROVISO TO SECTION 40A(IA) OF THE IT ACT IS CURATIVE IN NATURE, AND, THEREFORE, HAS RETROSPECTIVE APPLICATION AND, CONSEQUENTLY, TH E CORRECTION IN THE COMPUTATION OF INCOME RELATING TO ADDITION OF RS.4,70,462/- MADE U /S 40A(IA) OF THE IT ACT OUGHT TO HAVE BEEN ALLOWED IN ASSESSING THE TOTAL INCOME COR RECTLY UNDER THE IT ACT. 2. THE BRIEF, FACTS OF THE CASE ARE THAT THE ASSESS EE COMPANY IS ENGAGED IN THE BUSINESS OF INDUSTRIAL RADIOGRAPHY & OTHER NON-DEST RUCTIVE TESTING, FILED ITS RETURN OF INCOME FOR AY 2012-13 ON 27/09/2012, DECLARING TOTAL INCOM E OF RS.5,00,30,390/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT HAS BEEN C OMPLETED U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), ON 27/02/201 5 DETERMINING TOTAL INCOME AT 3 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. RS.5,03,13,850/- BY MAKING DISALLOWANCE AT EXPENSES WITHOUT TDS FOR RS.4,70,462/- ON THE GROUND THAT THE ASSESSEE ITSELF HAS MADE SUO-MO TO DISALLOWANCE IN ITS STATEMENT OF TOTAL INCOME WHILE FILING RETURN OF INCOME. THEREFO RE, REVISED STATEMENT OF TOTAL INCOME FILED WITHOUT ANY REVISED RETURN, CANNOT BE ACCEPTED TO E XCLUDE DISALLOWANCE OF EXPENSES U/S 40(A)(IA) OF THE ACT. AGGRIEVED BY THE ASSESSMENT O RDER, ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A). 3. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAT AM ENDMENT BROUGHT OUT ON THE STATUTE BY FINANCE ACT-2012 W.E.F. 01/04/2013 TO SE CTION 40(A)(IA) OF THE ACT, WAS CONSIDERED TO BE RETROSPECTIVE IN NATURE WHICH WAS UPHELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S ANSAL LANDMARK TOWNSHIP PVT. LTD . (2015) (377 ITR 635), WHERE IT WAS HELD THAT AN ASSESSEE FAILS TO DEDUCT TAX, IS NOT DEEMED TO BE ASSESSEE IN DEFAULT U/S 201 OF THE ACT, THEN IT IS DEEMED THAT ASSESSEE HAS DED UCTED TDS ON PAYMENTS MADE, CONSEQUENTLY, NO DISALLOWANCE COULD BE MADE U/S 40( A)(IA) OF THE ACT, FOR FAILURE TO DEDUCT TDS UNDER RESPECTIVE PROVISIONS OF THE ACT. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND ALSO BY FOLLOWING T HE SPECIAL BENCH DECISION OF THE ITAT, MUMBAI, IN CSE OF BHARATI SHIPYARD LTD. (2011 ) 13 TAXMANN.COM 101 (MUM.)(SB) HELD THAT THE AMENDMENT BROUGHT OUT ON THE STATUTE BY THE FINANCE ACT, 2012, W.E.F. 01/04/2013 IS CONSIDERED TO BE PROSPECTIVE IN NATUR E AND HENCE PRIOR TO THE AMENDMENT FOR FAILURE TO DEDUCT TDS UNDER RESPECTIVE PROVISIO N OF THE ACT, EXPENSES CAN BE DISALLOWED U/S 40(A)(IA) OF THE ACT. THE RELEVANT F INDING OF THE LD. CIT(A) IS REPRODUCED HEREUNDER:- 4 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. 4.3 LET US TAKE THE SECOND GROUND FIRST. IT I S A UNIQUE CASE, WERE THE APPELLANT THEMSELVES HAS DISALLOWED IN THE COMPUTAT ION OF INCOME AND ASKED THE AO TO WITHDRAW THE DISALLOWANCE AND REVIS E THE COMPUTATION ACCORDINGLY. DURING THE COURSE OF APPELLATE PROCEED ING, THE APPELLANT HAS PLACED RELIANCE ON THE RATIO OF JURISDICTIONAL HIGH COURT IN CASE OF PRUTHVI BROKERS AND SHAREHOLDERS LTD. 349 ITR 336 B OMBAY. IN FACT, CONTRARY TO THE CLAIM OF THE APPELLANT, RECENTLY TH E HON'BLE BOMBAY HIGH COURT, IN CASE OF ULTRATECH CEMENT LTD [ITA NO 1060 OF 2014 DT.18 LH APRIL 2017] HAS CONSIDERED VARIOUS JUDGMENTS ON THE ISSUE OF THE ADMISSION OF ADDITIONAL CLAIM DURING APPELLATE PROC EEDING. THE HON'BLE HIGH COURT HAS ONCE AGAIN REITERATED THAT SUCH ADDI TIONAL CLAIM CAN BE ALLOWED TO BE RAISED ONLY WHEN ALL THE REQUIRED EVI DENCES TO DECIDE THAT PARTICULAR GROUND IS AVAILABLE ON THE RECORD. IN TH IS CASE, NO DETAIL IS AVAILABLE WITH THE AO. RATHER, THE AO HAS ONLY CONF IRMED THE COMPUTATION WHICH HAS BEEN FILED BY THE APPELLANT . THE COMPUTATION DOES NOT SHOW ANY DETAIL REQUIRED TO BE SCRUTINIZED FOR THE PURPOSE OF SECOND PROVISO TO SECTION 40AFIA) OF THE ACT. THUS, THE GROUND RAISED BY THE APPELLANT ON THIS ISSUE IS DISMISSED. AS FAR THE FIRST GROUND IS CONCERNED, WHICH IS WITH OUT PREJUDICE TO THE SECOND GROUND AS DISCUSSED ABOVE, THE SECOND PROVIS O TO SECTION 40A(IA) WAS BROUGHT ON THE STATUTE BY FINANCE ACT 2 012 W.E.F 1.4.2013. THE APPELLANT COMPANY HAS RELIED ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN CASE OF M/S.ANSAL LANDMARK TOWNSHIP P VT. LTD 2015 377 ITR 635 DELHI, WHICH HAS HELD THE SECOND PROVISO AT DECLARATORY AND CURATIVE IN NATURE AND HAS RETROSPECTIVE EFFECT FRO M 1.4.2005. HOWEVER, THE REVENUE DID NOT ACCEPT AND CHALLENGED FURTHER B EFORE THE HON'BLE SUPREME COURT. THE HON'BLE SUPREME COURT HAS ALREAD Y ADMITTED THE SLP AGAINST THE JUDGMENT OF HON'BLE DELHI HIGH COUR T IN CASE OF M/S. ANSAL LANDMARK TOWNSHIP PVT.LTD (73 TAXMANN.COM 63) THERE ARE CONTRARY JUDGMENTS SUCH AS THOMAS GEORGE MUTHOOT VS CIT (2015) 63 TAXMANN.COM 99(KERALA). PRUDENTIAL LOGESTIC AND TRA NSPORT (2014) 51 TAXMANN.COM.426 (KERALA), WHERE IT HAS BEEN HELD TH AT BENEFIT OF SECOND PROVISO TO SECTION 40A(IA), GIVING CONCESSIO N TO THE ASSESSEE FROM DEDUCTING TDS IN CASE RECIPIENT OF AMOUNT IN Q UESTION HAD ALREADY PAID TAX ON SUCH AMOUNT WOULD BE AVAILABLE W.E.F 1. 4.2013 ONLY. 4.4. RETROSPECTIVELY OF A PROVISION WHICH IS O THERWISE PROSPECTIVE IN THE STATUTE, ON THE GROUND OF BEING DECLARATORY AND CURATIVE HAD COME UNDER JUDICIAL SCRUTINY BEFORE THE SPECIAL BENCH IT AT, MUMBAI IN CASE OF BHARATI SHIPYARD LTD.(2011) 13 TAXMANN.COM 101 M UMBAI SPECIAL BENCH (SB). FIRST PROVISO WAS ADDED BY FINANCE ACT 2010 W.E.F. 1.4.2010 AND ITS PROSPECTIVE APPLICATION WAS CHALLE NGED ON THE GROUND OF BEING CURATIVE IN NATURE. THE HON'BLE SPECIAL BE NCH HAS HELD. FROM THE ABOVE DISCUSSION IT IS CRYSTAL CLEAR THAT RETROSPECTIVE EFFECT TO A PROVISION CANNOT BE ORDIN ARILY GIVEN BY JUDICIAL OR QUASI JUDICIAL AUTHORITIES UNLESS IT IS EXPRESSLY 5 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. GIVEN BY THE LEGISLATURE. THERE MAY HE CERTAIN SITUA TIONS REQUIRING THE GIVING OF RETROSPECTIVE EFFECT. THE SC OPE FOR THE COURTS TO VALIDLY GIVE RETROSPECTIVE EFFECT TO A PR OVISION, DESPITE NOT BEING CLEARLY GIVEN SO BY THE LEGISLATU RE, IS LIMITED. IT EXTENDS TO CASES WHERE THE LEGISLATIVE INTENT HAS LATER BEEN MADE EXPLICIT WHICH WAS EARLIER IMPLICIT IN THE PROVISION OR THE EXISTING PROVISION LED TO THE UNIN TENDED CONSEQUENCES AND MADE THE INTENTION OF THE LEGISLAT URE UNWORKABLE. ANY AMENDMENT WHICH HAS NOT BEEN GIVEN RETROSPECTIVE EFFECT BY THE LEGISLATURE CAN'T BE CO NSTRUED AS RETROSPECTIVE ON THE SOLITARY GROUND THAT THE ORIGI NAL PROVISION CAUSED SOME HARDSHIP TO THE ASSESSEES. THE RELEVANT CRITERIA TO BE TAKEN INTO CONSIDERATION FO R ARRIVING AT THE DECISION ABOUT THE RETROSPECTIVE OR PROSPECTIVE EFFECT OF A LATER PROVISION, IS TO UNEARTH THE INTENTION OF THE LEGISLATURE AT THE TIME OF INTRODUCING THE ORIGINAL PROVISION A ND NOR WHETHER IT CAUSED HARDSHIP TO THE TAXPAYERS. IF IT WAS VERY WELL KNOWN AT THE TIME OF INSERTING THE ORIGINAL PR OVISION THAT IT IS GOING TO BE HARSH, THEN ANY SUBSEQUENT RELAXATION IN IT WILL NOT BE RETROSPECTIVE UNLESS EXPRESSLY ST ALED. THE REASON FOR NOT HOLDING SUCH LATER AMENDMENT AS RETROSPECTIVE IS MANIFEST THAT THE LEGISLATURE IN I TS WISDOM INTENDED TO IMPOSE A HARSH LEVY. IN SUCH A CASE THE JUDICIAL OR QUASI JUDICIAL AUTHORITIES CANNOT HELP THE SITUA TION BY GRABBING THE LEGISLATIVE POWER IN HOLDING SUCH LATE R RELAXATION AS RETROSPECTIVE, WHEN THE LEGISLATURE H AS ITSELF MADE IT PROSPECTIVE.' THERE ARE CONFLICTING JUDGMENTS ON THE ISSUE OF RET ROSPECTIVELY ON THE SECOND PROVISO TO SECTION 40A(IA). IT IS THUS EVIDE NT THAT VIEWS OF NON- JURISDICTIONAL HIGH COURT ARE IN DIRECT CONFLICT WI TH EACH OTHER. CLEARLY THERE IS NO MEETING GROUND BETWEEN THESE TWO JUDGME NTS. THE APPELLANT HAS CLAIMED THAT WHERE TWO VIEWS ARE POSSIBLE, THEN ONE WHICH IS FAVOURABLE TO THE ASSESSEE HAS TO BE FOLLOWED ON TH E BASIS OF JUDGMENT OF HON'BLE SUPREME COURT IN CASE OF BAJAJ TEMPO LTD (196 ITR 188). HERE, THE JUDGMENT IN FAVOUR OF REVENUE HAS CERTAIN LY GOT MORE WEIGHT AGE WHEN THE SLP FILED BY THE REVENUE AGAINST THE F AVOURABLE JUDGMENT TO THE ASSESSEE I.E. M/S.ANSAL LANDMARK TOWNSHIP PVT.LTD. HAS BEEN ADMITTED BY HON'BLE SUPREME COURT (73 TAXMANN.COM 63). THUS, THERE IS NO EQUAL WEIGHTAGE FOR THIS CONTRADICTORY JUDGME NTS OF TWO NON JURISDICTIONAL HIGH COURTS. THE PLAIN MEANING OF TH E STATUTE THAT SECOND PROVISO TO SECTION 40A(IA) IS EFFECTIVE W E.F. 1.4. 2013, IT IS APPLICABLE TO THE FACTS OF THE APPELLANT'S CASE AND ACTION OF THE AO ON THIS ISSUE I.E. NOT REVISING THE COMPUTATION BY WITHDRAWING DISALLO WANCE U/S.40A(IA) IS 6 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. UPHELD AND THE APPEAL FILED BY THE APPELLANT ON THI S GROUND IS DISMISSED. 4. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE I SSUE INVOLVED IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSE E BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS PERFECT CIRCLE INDIA PVT. LTD. IN INCOME TAX APPEAL NO.707 OF 2016, WHERE HONBLE HIGH COURT AF TER CONSIDERING THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT, INTRODUCED BY THE FIN ANCE ACT, 2012 W.E.F. 01/04/2013 HELD THAT WHERE ASSESSEE FAILS TO DEDUCT WHOLE OR ANY PA RT OF THE TAX AT SOURCE, BUT IS NOT DEEMED TO BE ASSESSEE IN DEFAULT UNDER THE FIRST PR OVISO TO SECTION 201(1) OF THE ACT, THEN FOR THE PURPOSE OF CLAUSE 40(A)(IA) SHALL BE DEEMED THAT ASSESSEE HAS DEDUCTED AND PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RE TURN OF INCOME BY THE PAYEE. THE LD. AR FURTHER SUBMITTED THAT HONBLE COURT EVEN CONSID ERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BE VERAGES PVT. LTD. VS CIT AND HELD THAT EVEN IN THE ABSENCE OF SECOND PROVISO TO SECTI ON 40(A)(IA), IF THE PAYEE HAD ALREADY PAID TAX, THEN NO DISALLOWANCE COULD BE MADE U/S 40 (A)(IA) OF THE ACT, BUT AT THE BEST DEDUCTOR MAY BE ASKED TO PAY INTEREST ON DELAY IN D EPOSITING TAX. THE LD. AR FURTHER SUBMITTED THAT ALTHOUGH THE ASSESSEE HAS NOT FILED REVISED RETURN WITHDRAWING ITS DISALLOWANCE U/S 40(A)(IA) OF THE ACT, BUT IN VIEW OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS PRUTHVI BROKERS AN D SHAREHOLDERS PVT. LTD. (349 ITR 336)(BOM.), THE ASSESSEE CAN TAKE AN ADDITION CLAIM SEEKING RELIEF FROM THE APPELLANT AUTHORITIES AND HENCE THE ADDITIONAL GROUND TAKEN B Y THE ASSESSEE MAY BE ADMITTED AND 7 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. THE ISSUE MAY BE DECIDED IN THE LIGHT OF DECISION O F THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS PERFECT CIRCLE INDIA LTD. 5. THE LD. DR, ON THE OTHER HAND, STRONGLY SUPPORT ED THE ORDER OF THE LD. CIT(A). 6. WE HAVE HEARD BOTH PARTIES PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS AN ADMITTED FACT THAT SECOND PROVISO INSERTED TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2 012, W.E.F. 01/04/2013 HAS BEEN CONSIDERED TO BE RETROSPECTIVE IN NATURE AND THIS L EGAL PROPOSITION HAS BEEN UPHELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF M/S ANSAL L ANDMARK TOWNSHIP PVT. LTD. (2015) (377 ITR 635), WHERE IT WAS HELD THAT BENEFIT OF SE CTION 40A(IA), GIVING CONCESSION TO THE ASSESSEE FROM DEDUCTING TDS IN CASE OF RECIPIENT OF AMOUNT IN QUESTION HAD ALREADY PAID TAX ON SUCH AMOUNT WOULD BE AVAILABLE TO THE ASSESS EE. WE FURTHER NOTICED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS PERFECT CIRCLE INDIA LTD.(SUPRA) HAD CONSIDERED SIMILAR ISSUE AND AFTER CONSIDERING THE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS M/S ANSAL LANDMARK TOWNSHIP PVT. LTD. (SUPRA) HELD THAT WHERE ASSESSEE FAILS TO DEDUCT WHOLE OR ANY PART OF THE TAX AT SOURCE, BUT IS NOT DEEMED TO BE ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO S ECTION 201(1) OF THE ACT, THEN FOR THE PURPOSE OF CLAUSE 40(A)(IA) SHALL BE DEEMED THAT AS SESSEE HAS DEDUCTED AND PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RETURN OF INCOME BY THE PAYEE. THE HONBLE COURT FURTHER HELD THAT EVEN IN THE ABSENCE OF SECO ND PROVISO TO SECTION 40(A)(IA) OF THE ACT, IF THE PAYEE HAD ALREADY PAID THE TAX, IT IS D EEMED THAT THE ASSESSEE HAS DEDUCTED 8 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. TDS ON SUCH PAYMENTS AND AT THE BEST DEDUCTOR MAY B E ASKED TO PAY INTEREST ON DELAY IN DEPOSITING TAX. THIS LEGAL PROPOSITION IS FURTHER S TRENGTHENED BY THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN COCA COLA BE VERAGES PVT. LTD. VS CIT. IN SO FAR AS THE ADMISSIBILITY OF CLAIM OF THE ASSESSEE IN AB SENCE OF REVISED RETURN, WE FIND THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BR OKERS AND SHAREHOLDERS PVT. LTD. (349 ITR 336)(BOM.) HAD CONSIDERED THE ISSUE AND HE LD THAT THE ASSESSEE CAN MAKE ADDITIONAL CLAIM BY RISING NEW GROUNDS OF APPEAL BE FORE THE APPELLATE AUTHORITIES, WHEN ALL THE FACTS ARE PLACED BEFORE THE AO AT THE TIME OF A SSESSMENT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE AO AS WELL AS THE LD. CIT( A) WAS ERRED IN NOT ADMITTING THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE WITHDRAWING SUO-MOTO DISALLOWANCE MADE TOWARDS EXPENSES WITHOUT TDS EVEN THOUGH THE ASSESS EE HAS PLACED VARIOUS DETAILS TO PROVE THAT DEDUCTEE HAVE ALREADY PAID TAX. THE ASSE SSEE ALSO FILED CERTIFICATE AS REQUIRED UNDER SECTION 201(1) OF THE ACT FROM THE CHARTERED ACCOUNTANT CERTIFYING PAYMENTS OF TAX BY PAYEE. ACCORDINGLY, WE SET ASIDE THE ISSUE TO TH E FILE OF LD. AO AND DIRECT THE AO TO VERIFY THE CLAIM OF THE ASSESSEE. IF ASSESSEE PLACE D RECORDS OF PAYMENT OF TAXES BY THE PAYEE, THEN THE AO IS DIRECTED TO ALLOW THE CLAIM O F THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27/02/2019. SD/- SD/- ( RAVISH SOOD ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 27/02/2019 9 INDUSTRIAL X-RAY AND ALLIED RADIOGRAPHERS INDIA PVT. LTD. F{X~{T F{X~{T F{X~{T F{X~{T? P.S / /. .. $!%&'(')% / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT (RESPECTIVE ASSESSEE) 2. '#$ ! / THE RESPONDENT. 3. %$ %$ & ( ) / THE CIT, MUMBAI. 4. %$ %$ & / CIT(A)- , MUMBAI, 5. ()*$ ' + , %$ $ + - , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI