Opinion Of Eminent Legal Luminaries On Controversial Issues

Whether For Disallowance U/s. 40(a) Only Amount Payable At The End of the Year To Be Considered?

QUERY: Does the judicial precedent in case of Special Bench Merilyn Shipping & Transport [136 ITD 23 (JB)] still hold good on the issue of paid or payable?
ANSWER: Yes, recently the Mumbai Tribunal in Jitendra Mansukhlal Shah Vs. DCIT [ITA Nos 2293 & 2294/Mum/2013 dated March 04,2015] has held that, the assessee having made the payment, section 40a(ia) cannot be attracted because it speaks of the amount “payable” and it does not cover the amount already paid. The ITAT Chennai Benches have taken into consideration the decision of the ITAT Special Bench in Merilyan Shipping & Transport (supra), the order of which was suspended by the High Court but at the same time there was a subsequent judgement of the Hon’ble Allahabad High Court in the case of M/s. Vector Shipping Services (P) Ltd., wherein it was held that section 40(a)(ia) applies only to those amount which remains payable by the end of previous year. In other words, in respect of payments already made section 40(a)(ia) is not attracted (i) ACIT Vs. Eskay Designs (ITA No. 1951(Mad) 2012 dated 09/12/2013) (ii) ITO Vs. Theekathir Press (ITA No. 2076/Mad/2012 & Co. no. 155/Mad/2013 dated 18/09/2013). Though there are contrary decisions of the other Hon’ble High Courts i.e. Hon’ble Calcutta High Court and Hon’ble Gujarat High Court. In the light of the decision of the Hon’ble Allahabad High Court it can be said that there can be two views possible in this matter in which event the one which is in favour of the assessee has to be followed in the light of the decision of the Hon’ble Supreme Court in the case of Vegetable Products Ltd. [88 ITR 192]. Hon’ble Allahabad High Court in the case of CIT Vs. Vector Shipping Services (P) Ltd. (supra) has held that for disallowing expenses from business and profession on the ground that TDS has not been deducted, amount should be payable and not which has been paid by the end of the year. The said decision of Allahabad High Court was made subject to special leave petition filed before the Supreme Court and their lordships vide their order dated 02/07/2014 in CC no. 8068/2014 have dismissed the SLP. In view of the above discussion the decision relied upon by the Ld. D.R. would have no application and we have accepted the claim of the assessee to the extent of labour payments are made during the year under consideration and to that extent no disallowance should be made.
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