SMT. ARCHANA AHUJA, Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, Jaipur

ITA 945/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2069 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 06-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DHK
• Assessee Lawyers: ARPIT SINGHAL
• Keywords: Additional evidence

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 HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA-@ ITA NO. 945/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 SMT. ARCHANA AHUJA, JAIPUR. CUKE VS. ACIT, CIRCLE-6, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAKPA 7101 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ARPIT SINGHAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.P. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/02/2018 MN?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 12/02/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 18.09.2017 OF LD. CIT(A)-2, JAIPUR, FOR THE ASSESSM ENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN TH IS APPEAL:- 1.(A) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING AN ADDITION OF R S. 2,58,128/- ON INTEREST PAID TO NBFC (M/S BMW FINANC IAL SERVICE PRIVATE LIMITED) AGAINST A LOAN ON WHICH AS SESSEE HAS NOT DEDUCTED TDS AS CONCERNED NBFC HAS GIVEN ANNEXURE A OF FORM NO. 26A (SEE RULE 31ACB) UNDER F IRST PROVISO TO SUB-SECTION (1) OF SECTION 201 OF THE IN COME TAX ACT, 1961 FOR CERTIFYING THE FURNISHING OF RETURN O F INCOME, PAYMENT OF TAX, ETC BY THE PAYEE AND THE SAME HAS B EEN PRODUCED BEFORE THE LD. CIT(A) AS AN ADDITIONAL EVI DENCE AND HAS BEEN PUT ON RECORDS. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ADDITION UNDER BUSINESS HEAD. 2 ITA NO. 945/JP/2017. SMT. ARCHANA AHUJA, JAIPUR. (B) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A), IN TERMS OF HIS POWER U/S 251, HAS ERRE D IN ADMISSION OF ADDITIONAL EVIDENCE BY NOT RECORDING T HE REASONS FOR SUBMISSIONS. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST FACTS O F THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ACTION OF LD. AO. 2. THE APPELLANT CRAVES HIS RIGHT TO ADD, AMEND OR ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2. THE ONLY ISSUE RAISED IN THIS APPEAL OF THE ASSE SSEE IS REGARDING DISALLOWANCE OF INTEREST PAID TO NBFCS U/S 40(A)(I A) FOR WANT OF TDS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED T HAT THE ASSESSEE HAS BORROWED MONEY FROM A NON-BANKING FINANCE COMPANY ( NBFC) IN THE NAME OF BMW INDIA FINANCIAL SERVICES FOR RS. 17,89,784/- . THE ASSESSEE PAID INTEREST ON THIS BORROWED MONEY TO THE NBFC AMOUNTI NG TO RS. 2,58,128/-. THE AO HELD THAT AS PER THE PROVISIONS OF SECTION 1 94A OF THE INCOME TAX ACT, THE ASSESSEE WAS LIABLE TO DEDUCT TDS @ 10% ON THE PAYMENT OF INTEREST. SINCE THE ASSESSEE HAS FAILED TO DEDUCT TDS, THEREF ORE, THE AO DISALLOWED THE INTEREST PAYMENT OF RS. 2,58,128/- BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) . THE ASSESSEE CHALLENGED THE ACTION OF T HE AO BEFORE THE LD. CIT(A) AND PRODUCED FORM NO. 26A AND SUBMITTED THAT THESE DOCUMENTS WERE PRODUCED BEFORE THE AO BUT MISPLACED AND SUBSEQUENT LY, IT HAS BEEN OBTAINED AND SOUGHT TO BE FILED AN ADDITIONAL EVIDENCE. THE LD. CIT(A) DECLINED TO ADMIT THE ADDITIONAL EVIDENCES SOUGHT TO BE PRODUCE D BY THE ASSESSEE AND CONSEQUENTLY REJECTED THE CONTENTION OF THE ASSESSE E THAT THE NBFC HAS 3 ITA NO. 945/JP/2017. SMT. ARCHANA AHUJA, JAIPUR. CONSIDERED THIS AMOUNT AS PART OF THE INCOME OFFERE D TO TAX AND THEREFORE IN VIEW OF THE SECOND PROVISO TO SECTION 40(A)(IA) NO DISALLOWANCE IS CALLED FOR. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSES SEE HAS FILED THE PRESENT APPEAL. 3. BEFORE US, THE LD. AR OF THE ASSESSEE SUBMITTED THAT WHEN THE RECIPIENT OF THE INTEREST HAS CONSIDERED THIS AMOUNT WHILE CO MPUTING THE TOTAL INCOME OFFER TO TAX THEN NO DISALLOWANCE CAN BE MADE U/S 4 0(A)(IA) FOR WANT OF TDS IN VIEW OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT. THE LD. AR HAS FURTHER SUBMITTED THAT THE ADDITIONAL EVIDENCE IS N ECESSARY FOR DECIDING THE ISSUE AND THEREFORE THE LD. CIT(A) WAS NOT JUSTIFIE D IN REFUSING TO ADMITTING THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE. 4. ON THE OTHER HAND, LD. D/R HAS SUBMITTED THAT WH EN THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE BEFORE THE ASSESSING OFFI CER THEN THE EVIDENCE CANNOT BE ADMITTED BY THE LD. CIT(A), UNTIL AND UNL ESS THE CONDITIONS AS PRESCRIBED RULE 46A ARE SATISFIED. HE HAS RELIED U PON THE ORDERS OF THE LD. CIT(A). 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD AT THE OUTSET, WE NOTE THAT THE ADDITIONAL E VIDENCE SOUGHT TO BE PRODUCED BY THE ASSESSEE WAS FORM NO. 26A ISSUED BY THE RECIPIENT TO SHOW THAT THIS AMOUNT WAS CONSIDERED AS PART OF THE TOTA L INCOME OFFER TO TAX. WE FURTHER NOTE THAT THIS ADDITIONAL EVIDENCE SOUGHT T O BE PRODUCED BY THE ASSESSEE CAN BE VERIFIED EVEN FROM THE RECORD OF TH E DEPARTMENT AND 4 ITA NO. 945/JP/2017. SMT. ARCHANA AHUJA, JAIPUR. THEREFORE THERE IS NO NEED EVEN TO EXAMINE ANY FACT OR TO CONDUCT ANY INVESTIGATION IN RESPECT OF THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE, WHEN THE SAME CAN BE VERIFIED EVEN FROM THE RECORD OF THE DEPARTMENT. 5.1 THE SECOND PROVISO TO SECTION 40(A)(IA) IS APPL ICABLE FOR THE AY UNDER CONSIDERATION AND THEREFORE ONCE THE ASSESSEE HAS C LAIMED THE RECIPIENTS OF THE INTEREST HAS CONSIDERED THE AMOUNT FOR COMPUTAT ION OF THE INCOME OFFERED TO TAX THEN IT IS INCUMBENT UPON THE AO TO VERIFIED AND CONSIDERED THIS FACT BEFORE MAKING A DISALLOWANCE U/S 40(A)(IA). THOUGH , THE ASSESSEE DID NOT FILE THIS EVIDENCE BEFORE THE ASSESSING OFFICER, HOWEVER , WHEN THE EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE WAS NOT IN A CON TROL OF THE ASSESSEE BUT WAS TO BE OBTAINED FROM THE OTHER PARTY AND CAN BE VERIFIED FROM THE RECORD OF THE DEPARTMENT, THEN THE LD. CIT(A) OUGHT TO HAV E ADMITTED THE ADDITIONAL EVIDENCES AND REFERRED TO THE AO FOR VERIFICATION O F THE CORRECTNESS OF THE SAME. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITIONAL EVIDENCE SOUGHT TO BE FILED BY THE ASSESSEE IS RELEVANT AND CRUCIAL MATERIAL FOR DECID ING THE ISSUE AND ACCORDINGLY, THE SAME IS ADMITTED. SINCE, THE AUTH ORITIES BELOW HAVE NOT EXAMINED AND VERIFIED THE CORRECTNESS OF THE EVIDEN CE FILED BY THE ASSESSEE THEREFORE, FOR LIMITED PURPOSE OF VERIFICATION OF T HE CORRECTNESS OF THE EVIDENCES FILED BY THE ASSESSEE THE MATTER IS REMIT TED TO THE RECORD OF THE ASSESSING OFFICER AND THEN TO DECIDE THE ISSUE IN T HE LIGHT OF THE SECOND PROVISO OF SECTION 40(A)(IA) OF THE ACT. 5 ITA NO. 945/JP/2017. SMT. ARCHANA AHUJA, JAIPUR. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12/02/2018. SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 12/02/2018. POOJA/- VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. ARCHANA AHUJA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-. ACIT, CIRLCE-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. 945/JP/2017] VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR