JITENDRA KUMAR GUPTA, BHARATPUR V. JCIT, BHARATPUR

MA 24/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6444 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 15-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Rectification of order; Question of law; Non-deduction of tax
• Section: 194C

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 L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M/A. NO. 24/JP/2018 (ARISING OUT ITA NO. 214/JP/2016) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 SHRI JITENDRA KUMAR GUPTA PROP. M/S J.K. ENTERPRISES CHOBURJA BAZAR, BHARATPUR CUKE VS. THE JCIT. RANGE- BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHBPG 8155 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJENDRA AGARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/04/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/04/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAYS OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE SEEKING RECTIFICATION OF MISTAKE IN THE ORDER DATED 10.01.2 018 OF THIS TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DISPOSED OFF . THE ASSESSEE HAS ALLEGED THE FOLLOWING MISTAKE IN THE IMPUGNED ORDER IN PARAS 1 TO 3 OF THE MISCELLANEOUS APPLICATION AS UNDER:- M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 2 1. IN TERMS OF SECTION 194H OF THE I.T. ACT, 1961 ANY PERSONS, NOT BEING AN INDIVIDUAL OR A HUF, WHO IS RESPONSIBL E FOR PAYING, ON OR AFTER 1.6.2001, TO A RESIDENT, ANY INCOME BY WAY OF COMMISSION (NOT BEING INSURANCE COMMISSION REFEREED IN TO SECTION 194D) OR BROKERAGE, SHALL, AT THE TIME OF C REDIT OF SUCH INCOME TO THE ACCOUNT OF THE PAYEE OR AT THE TIME OF PAYMENT OF SUCH INCOME IN CASH OR BY ISSUE OF A CHEQUE OR DRAF T OR BY ANY OTHER MODE, WHICHEVER IS EARLIER, DEDUCT INCOME-TAX THEREON AT THE RATE OF 10%. WHILE IN CASE OF THE ASSESSEE NO COMMISSION WAS PAI D BY THE ASSESSEE TO THE DEALERS BUT THE COMMISSION WAS PAID DIRECTLY BY VODAFONE COMPANY. THE ASSESSEE WAS NEVER RESPONSIBL E FOR PAYING ANY COMMISSION TO THE DEALERS. 2 DURING THE COURSE OF HEARING IT WAS ALTERNATIVELY ARGUED BY THE AR AND THAT CREDIT OF TDS DEDUCTED BY VODAFONE COMP ANY ON THE AMOUNT OF RS. 9,61,610/- MAY NOT BE ALLOWED IF THE DISALLOWANCE OF RS. 9,61,610/- IS NOT MADE, BUT THE HONBLE BENC H HAS NOT DECIDED THE SAME. 3. AFTER SUBSTITUTION BY THE FINANCE (NO. 2) ACT, 2 014 ONLY 30% OF THE SUM ON WHICH TAX HAS NOT BEEN DEDUCTED SHALL BE DISALLOWED BUT THE HONBLE BENCH HAS CONFIRMED THE DISALLOWANC E OF THE 100% OF THE SUM. 2. FIRST MISTAKE SOUGHT TO BE RECTIFIED BY THE ASSE SSEE IS REGARDING THE APPLICABILITY OF PROVISIONS OF SECTION 194H OF THE ACT IN RESPECT OF THE COMMISSION PAID TO THE ADDITIONAL DEALERS. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT SINCE THE COMMISSION WA S DIRECTLY PAID BY THE VODAFONE COMPANY AND HAS NOT BEEN PAID BY THE A SSESSEE THEREFORE, THE PROVISIONS OF SECTION 194H OF THE AC T WOULD NOT APPLY TO M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 3 THE ASSESSEE AND CONSEQUENTIAL DISALLOWANCE U/S 40A (IA) OF THE ACT IS NOT CALLED FOR. THE LD. AR HAS FURTHER CONTENDED TH AT THE TRIBUNAL HAS NOT SPECIFICALLY DEALT WITH THIS ISSUE THEREFORE, T HERE IS A MISTAKE IN THE IMPUGNED ORDER OF THIS TRIBUNAL. 3. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISSUE ON MERITS BY CONSIDERING RELEVANT FACTS AS WELL AS THE CONTENTION OF THE ASSESSEE RAISED DURING THE HEARIN G OF THE APPEAL AND THEREFORE, THERE IS NO MISTAKE APPARENT ON RECORD T O BE RECTIFIED U/S 254(2) OF THE ACT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS CAREFUL PERUSAL ON RECORD. WE NOTE THAT THE TRIBUNAL HAS DE CIDED THIS ISSUE OF APPLICABILITY OF THE PROVISIONS OF SECTION 194H OF THE ACT AND CONSEQUENTIAL DISALLOWANCE MADE BY THE AO U/S 40A(I A) OF THE ACT IN PARAS 5 AND 6 AS UNDER:- 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE TH AT THE ASSESSEE HAS SHOWN INCOME OF RS. 28,31,494/- IN PROFIT AND L OSS ACCOUNT TOWARDS COMMISSION RECEIVED FROM VODAFONE ESSAR DIG ILINK LIMITED. THE ASSESSEE HAS ALSO CLAIMED EXPENDITURE OF RS. 9,61,610/- TOWARDS COMMISSION PAID TO ADDITIONAL DE ALERS. THE VODAFONE ESSAR DIGILINK LIMITED DEDUCTED TDS U/S 19 4H OF THE ACT FOR WHICH CERTIFICATE IS ISSUED IN THE NAME OF THE ASSESSEE AND THEREFORE, THE ENTIRE AMOUNT OF TDS DEDUCTED BY THE VODAFONE M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 4 ESSAR DIGILINK LIMITED IS AVAILABLE FOR CREDIT OF T HE ASSESSEE. ONCE THE ENTIRE AMOUNT SHOWN AS INCOME IN THE P&L ACCOUN T AND CORRESPONDING TDS IS ALSO SHOWN IN THE ACCOUNT OF T HE ASSESSEE FOR WHICH THE ASSESSEE HAS CLAIMED CREDIT THEN ASSE SSEE CAN BE TAKE A PLEA THAT THE SAID COMMISSION WAS DIRECTLY P AID BY THE VODAFONE ESSAR DIGILINK LIMITED TO THE ADDITIONAL D EALERS AND THE ASSESSEE HAS ONLY CARRIED OUT THE BOOKS ENTRIES. AS PER THE AGREEMENT BETWEEN THE PARTIES THE ADDITIONAL DEALE RS ARE ENTITLED FOR RECEIVING THE COMMISSION FROM THE ASSE SSEE. THOUGH THEY MAY BE SHARING COMMISSION WHICH IS THE ONLY IN COME OF THE ASSESSEE AS WELL AS THE ADDITIONAL DEALERS RECEIVED FROM VODAFONE ESSAR DIGILINK LIMITED HOWEVER ONCE THE CHAIN OF DI STRIBUTORSHIP IS FLOWING FROM TOP TO BOTTOM AND THE SHARE OF THE COM MISSION OF THE ADDITIONAL DEALERS IS PASSING THROUGH THE ASSES SEE AS A DISTRIBUTOR WILL BE REGARDED AS COMMISSION PAID ON BEHALF OF THE ASSESSEE. THEREFORE, THE TDS DEDUCTED BY THE VODAFO NE ESSAR DIGILINK LIMITED FROM THE TOTAL AMOUNT OF THE COMMI SSION WILL NOT ABSOLVE THE OBLIGATION OF THE ASSESSEE TO DEDUCT TD S U/S 194H OF THE ACT IN RESPECT OF THE AMOUNT WHICH WAS PAID TO THE ADDITIONAL DEALERS MAY BE DIRECTLY TRANSFERRED BY THE PARENT C OMPANY. THEREFORE, IN THE COMMERCIAL SENSE THE ENTIRE AMOUN T OF COMMISSION WILL BE TREATED AS INCOME OF THE ASSESSE E. THE ENTIRE AMOUNT IS SHOWN BY THE ASSESSEE IN THE P&L ACCOUNT AND CORRESPONDING TDS DEDUCTED IS ALSO AVAILABLE FOR CR EDIT OF THE ASSESSEE AND CONSEQUENTLY THE PAYMENT OF COMMISSION TO THE ADDITIONAL DEALERS AS AN EXPENDITURE AGAINST THE SA ID INCOME IS LIABLE FOR DEDUCTION OF TAX AT SOURCE. HENCE, THE P ROVISIONS OF SECTION 194H OF THE ACT ARE APPLICABLE IN THE CASE OF THE ASSESSEE. 6. AS REGARDS THE DECISION RELIED UPON THE LD. AR W E FIND THAT THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN CASE OF CIT VS. M/S VECTOR SHIPPING SERVICES PVT. LTD. 356 ITR 642 HAS BEEN OVERRULED BY THE HONBLE SUPREME COURT IN CASE OF M /S PALAM GAS SERVICE VS. CIT (SUPRA) IN PARAS 15 TO 18 AS UNDER: - M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 5 15. WE APPROVE THE AFORESAID VIEW AS WELL. AS A FORTIO RARI, IT FOLLOWS THAT SECTION 40(A)(IA) COVERS NOT ONLY THOS E CASES WHERE THE AMOUNT IS PAYABLE BUT ALSO WHEN IT IS PAID. IN THIS BEHALF, ONE HAS TO KEEP IN MIND THE PURPOSE WITH WHICH SECTION 40 WAS ENACTED AND THAT HAS ALREADY BEEN NOTED ABOVE. WE H AVE ALSO TO KEEP IN MIND THE PROVISIONS OF SECTIONS 194C AND 20 0. ONCE IT IS FOUND THAT THE AFORESAID SECTIONS MANDATE A PERSON TO DEDUCT TAX AT SOURCE NOT ONLY ON THE AMOUNTS PAYABLE BUT ALSO WHEN THE SUMS ARE ACTUALLY PAID TO THE CONTRACTOR, ANY PERSO N WHO DOES NOT ADHERE TO THIS STATUTORY OBLIGATION HAS TO SUFF ER THE CONSEQUENCES WHICH ARE STIPULATED IN THE ACT ITSELF . CERTAIN CONSEQUENCES OF FAILURE TO DEDUCT TAX AT SOURCE FRO M THE PAYMENTS MADE, WHERE TAX WAS TO BE DEDUCTED AT SOUR CE OR FAILURE TO PAY THE SAME TO THE CREDIT OF THE CENTRA L GOVERNMENT, ARE STIPULATED IN SECTION 201 OF THE ACT. THIS SECT ION PROVIDES THAT IN THAT CONTINGENCY, SUCH A PERSON WOULD BE DE EMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF SUCH TAX. WHIL E STIPULATING THIS CONSEQUENCE, SECTION 201 CATEGORICALLY STATES THAT THE AFORESAID SECTIONS WOULD BE WITHOUT PREJUDICE TO AN Y OTHER CONSEQUENCES WHICH THAT DEFAULTER MAY INCUR. OTHER CONSEQUENCES ARE PROVIDED UNDER SECTION 40(A)(IA) O F THE ACT, NAMELY, PAYMENTS MADE BY SUCH A PERSON TO A CONTRAC TOR SHALL NOT BE TREATED AS DEDUCTIBLE EXPENDITURE. WHEN READ IN THIS CONTEXT, IT IS CLEAR THAT SECTION 40(A)(IA) DEALS W ITH THE NATURE OF DEFAULT AND THE CONSEQUENCES THEREOF. DEFAULT IS RE LATABLE TO CHAPTER XVIIB (IN THE INSTANT CASE SECTIONS 194C AN D 200, WHICH PROVISIONS ARE IN THE AFORESAID CHAPTER). WHEN THE ENTIRE SCHEME OF OBLIGATION TO DEDUCT THE TAX AT SOURCE AND PAYIN G IT OVER TO THE CENTRAL GOVERNMENT IS READ HOLISTICALLY, IT CANNOT BE HELD THAT THE WORD 'PAYABLE' OCCURRING IN SECTION 40(A)(IA) REFER S TO ONLY THOSE CASES WHERE THE AMOUNT IS YET TO BE PAID AND DOES N OT COVER THE CASES WHERE THE AMOUNT IS ACTUALLY PAID. IF THE PRO VISION IS INTERPRETED IN THE MANNER SUGGESTED BY THE APPELLAN T HEREIN, THEN EVEN WHEN IT IS FOUND THAT A PERSON, LIKE THE APPELLANT, HAS VIOLATED THE PROVISIONS OF CHAPTER XVIIB (OR SPECIF ICALLY SECTIONS M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 6 194C AND 200 IN THE INSTANT CASE), HE WOULD STILL G O SCOT FREE, WITHOUT SUFFERING THE CONSEQUENCES OF SUCH MONETARY DEFAULT IN SPITE OF SPECIFIC PROVISIONS LAYING DOWN THESE CONS EQUENCES. THE PUNJAB & HARYANA HIGH COURT HAS EXHAUSTIVELY INTERP RETED SECTION 40(A(IA) KEEPING IN MIND DIFFERENT ASPECTS. WE WOULD AGAIN QUOTE THE FOLLOWING PARAGRAPHS FROM THE SAID JUDGMENT, WITH OUR COMPLETE APPROVAL THERETO: '26. FURTHER, THE MERE INCURRING OF A LIABILITY DOE S NOT REQUIRE AN ASSESSEE TO DEDUCT THE TAX AT SOURCE EVEN IF SUCH P AYMENTS, IF MADE, WOULD REQUIRE AN ASSESSEE TO DEDUCT THE TAX A T SOURCE. THE LIABILITY TO DEDUCT TAX AT SOURCE UNDER CHAPTER XVI I-B ARISES ONLY UPON PAYMENTS BEING MADE OR WHERE SO SPECIFIED UNDE R THE SECTIONS IN CHAPTER XVII, THE AMOUNT IS CREDITED TO THE ACCOUNT OF THE PAYEE. IN OTHER WORDS, THE LIABILITY TO DEDUCT TAX AT SOURCE ARISES NOT ON ACCOUNT OF THE ASSESSEE BEING LIABLE TO THE PAYEE BUT ONLY UPON THE LIABILITY BEING DISCHARGED IN THE CAS E OF AN ASSESSEE FOLLOWING THE CASH SYSTEM AND UPON CREDIT BEING GIV EN BY AN ASSESSEE FOLLOWING THE MERCANTILE SYSTEM. THIS IS C LEAR FROM EVERY SECTION IN CHAPTER XVII. 27. TAKE FOR INSTANCE, THE CASE OF AN ASSESSEE, WHO FOLLOWS THE CASH SYSTEM OF ACCOUNTING AND WHERE THE ASSESSEE WH O THOUGH LIABLE TO PAY THE CONTRACTOR, FAILS TO DO SO FOR AN Y REASON. THE ASSESSEE IS NOT THEN LIABLE TO DEDUCT TAX AT SOURCE . TAKE ALSO THE CASE OF AN ASSESSEE, WHO FOLLOWS THE MERCANTILE SYS TEM. SUCH AN ASSESSEE MAY HAVE INCURRED THE LIABILITY TO PAY AMO UNTS TO A PARTY. SUCH AN ASSESSEE IS ALSO NOT BOUND TO DEDUCT TAX AT SOURCE UNLESS HE CREDITS SUCH SUMS TO THE ACCOUNT OF THE PARTY/PA YEE, SUCH AS, A CONTRACTOR. THIS IS CLEAR FROM SECTION 194C SET OUT EARLIER. THE LIABILITY TO DEDUCT TAX AT SOURCE, IN THE CASE OF A N ASSESSEE FOLLOWING THE CASH SYSTEM, ARISES ONLY WHEN THE PAYMENT IS MA DE AND IN THE CASE OF AN ASSESSEE FOLLOWING THE MERCANTILE SYSTEM , WHEN HE CREDITS SUCH SUM TO THE ACCOUNT OF THE PARTY ENTITL ED TO RECEIVE THE PAYMENT. M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 7 28. THE GOVERNMENT HAS NOTHING TO DO WITH THE DISPU TE BETWEEN THE ASSESSEE AND THE PAYEE SUCH AS A CONTRACTOR. TH E PROVISIONS OF THE ACT INCLUDING SECTION 40 AND THE PROVISIONS OF CHAPTER XVII DO NOT ENTITLE THE TAX AUTHORITIES TO ADJUDICATE THE L IABILITY OF AN ASSESSEE TO MAKE PAYMENT TO THE PAYEE/OTHER CONTRAC TING PARTY. THE APPELLANT'S SUBMISSION, IF ACCEPTED, WOULD REQU IRE AN ADJUDICATION BY THE TAX AUTHORITIES AS TO THE LIABI LITY OF THE ASSESSEE TO MAKE PAYMENT. THEY WOULD THEN BE REQUIRED TO INV ESTIGATE ALL THE RECORDS OF AN ASSESSEE TO ASCERTAIN ITS LIABILI TY TO THIRD PARTIES. THIS COULD IN MANY CASES BE AN EXTREMELY COMPLICATE D TASK ESPECIALLY IN THE ABSENCE OF THE THIRD PARTY. THE T HIRD PARTY MAY NOT PRESS THE CLAIM. THE PARTIES MAY SETTLE THE DISPUTE , IF ANY. THIS IS AN EXERCISE NOT EVEN REMOTELY REQUIRED OR EVEN CONTEMP LATED BY THE SECTION.' 16. AS MENTIONED ABOVE, THE PUNJAB & HARYANA HIGH COUR T FOUND SUPPORT FROM THE JUDGMENTS OF THE MADRAS AND CALCUT TA HIGH COURTS TAKING IDENTICAL VIEW AND BY EXTENSIVELY QUOTING FR OM THE SAID JUDGMENTS. 17. INSOFAR AS JUDGMENT OF THE ALLAHABAD HIGH COURT IS CONCERNED, READING THEREOF WOULD REFLECT THAT THE HIGH COURT, AFTER NOTICING THE FACT THAT SINCE THE AMOUNTS HAD ALREADY BEEN PAID, IT STRAIGHTAWAY CONCLUDED, WITHOUT ANY DISCUSSION, THAT SECTION 40( A)(IA) WOULD APPLY ONLY WHEN THE AMOUNT IS 'PAYABLE' AND DISMISS ED THE APPEAL OF THE DEPARTMENT STATING THAT THE QUESTION OF LAW FRAMED DID NOT ARISE FOR CONSIDERATION. NO DOUBT, THE SPECIAL LEAV E PETITION THEREAGAINST WAS DISMISSED BY THIS COURT IN LIMINE. HOWEVER, THAT WOULD NOT AMOUNT TO CONFIRMING THE VIEW OF THE ALLA HABAD HIGH COURT (SEE V.M. SALGAOCAR & BROS. (P.) LTD. V. CIT [2000] 243 ITR 383/110 TAXMAN 67 (SC) AND SUPREME COURT EMPLOYEES WELFARE ASSOCIATION V. UNION OF INDIA [1989] 4 SCC 187 . 18. IN VIEW OF THE AFORESAID DISCUSSION, WE HOLD THAT THE VIEW TAKEN BY THE HIGH COURTS OF PUNJAB & HARYANA, MADRAS AND CALCUTTA IS THE CORRECT VIEW AND THE JUDGMENT OF THE ALLAHABAD HIGH COURT M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 8 IN VECTOR SHIPPING SERVICES (P) LTD. (SUPRA) DID NO T DECIDE THE QUESTION OF LAW CORRECTLY. THUS, INSOFAR AS THE JUD GMENT OF THE ALLAHABAD HIGH COURT IS CONCERNED, WE OVERRULE THE SAME. CONSEQUENCES OF THE AFORESAID DISCUSSION WILL BE TO ANSWER THE QUESTION AGAINST THE APPELLANT/ASSESSEE THEREBY APP ROVING THE VIEW TAKEN BY THE HIGH COURT. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN CA SE OF M/S PALAM GAS SERVICE VS. CIT (SUPRA), WE DO NOT FIND ANY ERR OR OR ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW. THUS, THE CONTENTIONS OF THE ASSESSEE REGARDING THE COMMISSION WAS DIRECTLY PAID BY THE VODAFONE COMPANY HAS BEEN DULY CONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER AND HENCE , THE DECISION ON THE MERITS OF THE CASE CANNOT BE REVIEWED OR AMENDE D IN THE PROCEEDINGS U/S 254(2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY MERITS OR SUBSTANCE IN THE ALLEGED MISTAKE AS RAISE D IN THE MISCELLANEOUS APPLICATION. 5. SECONDLY MISTAKE HAS BEEN ALLEGED AS ALTERNATIVE PLEA THAT THE TDS DEDUCTED AND CREDIT AVAILABLE WITH THE ASSESSEE MAY BE DISALLOWED. 6. WE HAVE HEARD THE LD. AR AS WELL AS THE DR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. IT IS PERTINENT TO NOT E THAT THE ALTERNATIVE PLEA AS RAISED BY THE ASSESSEE IN PARA 2 OF THE MIS CELLANEOUS APPLICATION CAN BE CONSIDERED ONLY WHEN THE MAIN ISSUE OF APPLI CABILITY OF M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 9 PROVISIONS OF SECTION 194H OF THE ACT IS DECIDED IN FAVOUR OF THE ASSESSEE. THUS, THE QUESTION OF ACCEPTING THE ALTER NATIVE PLEA DOES NOT ARISE ONCE, THE ISSUE OF APPLICABILITY OF SECTION 1 94H IS DECIDED AGAINST THE ASSESSEE. HENCE, THIS CONTENTION OF THE ASSESSE E IS MISCONCEIVED AND LIABLE TO BE REJECTED. 7. THIRD MISTAKE HAS BEEN ALLEGED IN PARA 3 OF THE APPLICATION IS REGARDING DISALLOWANCE TO BE RESTRICTED TO 30% AS P ER THE AMENDED PROVISIONS OF SECTION 40A(IA) OF THE ACT. 8. WE HAVE HEARD THE LD AR AS WELL AS THE LD. DR AN D CONSIDERED THE RELEVANT MATERIAL ON RECORD. THIS AMENDMENT WAS BRO UGHT BY FINANCE ACT 2014 W.E.F. 01.04.2015 THEREFORE, PRIMA FACIE T HE AMENDED PROVISIONS ARE NOT APPLICABLE FOR THE YEAR UNDER CO NSIDERATION. MOREOVER THIS PLEA WAS NEITHER RAISED BEFORE THE AUTHORITIES BELOW NOR DURING THE HEARING OF THE APPEAL OF THE ASSESSEE AND THE ASSES SEE HAS RAISED THIS PLEA FOR THE FIRST TIME IN THE MISCELLANEOUS APPLIC ATION. ACCORDINGLY, A NEW PLEA FOR THE FIRST TIME IN THE MISCELLANEOUS AP PLICATION ON A DEBITABLE ISSUE CANNOT BE ENTERTAINED IN THE PROCEE DINGS U/S 254(2) OF THE ACT HENCE, THE SAME IS REJECTED. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DI SMISSED. M.A. NO.24/JP/2018 SHRI JITENDRA KUMAR GUPTA VS. JCIT 10 ORDER PRONOUNCED IN THE OPEN COURT ON 10/04/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/04/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JITENDRA KUMAR GUPTA, BHARATPUR . 2. IZR;FKHZ@ THE RESPONDENT- JCIT, RANGE- BHARATPUR. 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 {M.A. NO. 24/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR