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The assessee is engaged in manufacturing of plywood where imported timber is being used. During the relevant previous year assessee has imported wood logs from outside India. Assessee has made payment of Rs.32,46,905/- to the exporter on its sale these woods to the assessee on F.O.R. basis.
Section 40 of the Income Tax Act, 1961 provides for non deduction of amount of expenditure specifically mentioned there in. One of the important provisions which merit our attention and faced by many assesses in day to day transactions is 40(a)(ia). Section 40(a)(ia) provides for disallowance of expenditure in relation to interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to resident, or amounts payable to a resident contractor or sub – contractor for carrying out any work including supply of labour for carrying out any work.
Contention of the Assessee- Provision of Sec. 40(a)(ia) shall apply only in respect of the amounts payable at the end of the year and shall not apply on the amounts actually paid by the appellant during the year.
The following disallowances were made by the AO by invoking provisions of section 40(a)(ia) of the Act: – 1 Disallowance on account of transportation charges paid to M/s. Lalji Mulji – Rs. 1 ,59,386/- 2 Disallowance on account of export freight charges paid – Rs. 6, 17,830/ – 3 Disallowance on account of export freight paid to Indian agents of foreign shipping companies – Rs. 3,70,062/-
In this case ITAT Mumbai distinguished the Allahabad High Court’s ruling in the case of CIT v. Vector Shipping Services (P) Ltd. (ITA No.122 of 2013) and held that the issue of ‘paid and payable’ was not subject of reference before the Allahabad High Court.
It is not the case of the Revenue that the assessee had not incurred the expenditure claimed or that the claim of expenditure was bogus or incorrect. The disallowance of expenditure was attracted due to non-deduction of TDS and it cannot be said to be a case of concealment of income or furnishing of inaccurate particulars of income.
Next ground of appeal is about disallowance of interest paid by the assessee to HO amounting to Rs.8.57Crores.During the assessment proceedings, AO found that interest of Rs.8,56,15, 525/- was paid by the assessee to HO on subordinate debts and term borrowing.
Circular No. 3/2015 Section 40(a)(i) of the Act stipulates that in computing the income chargeable under the head “Profits or gains of business or profession”, any interest, royalty, fees for technical services or other sum chargeable under this Act either payable in India to a non-resident (not being a company)/a foreign company or payable outside India, shall not be allowed as a deducation, if there has
The provisions of section 40(a)(ia) of the Act has two limbs one is where, inter alia, assessee has to deduct tax and the second where after deducting tax, inter alia, the assessee has to pay into Government Account.
Entire case of the Assessing Officer rests on Explanation (ii) to section 80IB(10)(a) of the Act which prescribes that the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority.
