IN INCOME TAX APPELLATE TRIBUNAL E Bench, Mumbai Before Shri B.R. Baskaran (AM)& Ramlal Negi (JM) I.T.A. No. 2875/Mum/2013 (Assessment Year 2009-10) DCI T-10(2) M/s. Euclid Solutions P. Room No. 432 Vs. Ltd. 4 t h Floor 101, Mahindra Chambers Aayakar Bhavan Opp. Dukes Factory M.K. Road W.T. Patil Marg Mumbai-400 020. Chembur East Mumbai-400 071. (Appellant) (Respondent) PAN No. AABCE1142M Assessee by None Department by Capt.Pradeep Arya Date of Hearing 26.9.2016 Date of Pronouncement 26.9.2016 ORDER Per B.R. Baskaran (AM) :- appeal filed by Revenue is directed against order dated 22.1.2013 passed by learned CIT(A)-21, Mumbai and it relates to A.Y. 2009-10. 2. revenue is aggrieved by decision of learned CIT(A) in deleting disallowance made by Assessing Officer u/s. 40(a)(ia) of I.T. Act by admitting additional evidence in violation of Rule 46A of I.T. Rules. 3. None appeared on behalf of assessee and we noticed that all notices issued by Registry have been returned back by Postal Department with noting left . Hence, we proceed to dispose of appeal ex-parte, without presence of assessee. 4. We heard learned Departmental Representative and perused record. We noticed that assessee did not cooperate with Assessing Officer and hence Assessing Officer was constrained to pass assessment order to 2 M / s. E u cl i d So l ut io n s P . L t d . best of his judgement u/s. 144 of Act. Assessing Officer noticed that assessee has claimed amount of ` 90,86,800/- as professional charges. Since assessee did not furnish any evidence to show that TDS has been deducted from above said payment and deposited within time, Assessing Officer disallowed above said expenditure u/s. 40(a)(ia) of Act. 5. Learned CIT(A), however, deleted addition with following observations :- 3.2 I have considered facts of case, submissions of appellant and evidence filed before me. A.O. had disallowed professional fees amounting to Rs.90,86,800/- as there was no evidence in material available before him. I had verified account copy, TDS payments and challans filed by appellant. On all other amounts TDS was deducted and paid in time except for two payments on which TDS was paid on 29.09.2009. With regard to date of payment of TDS deducted on 01.01.2009 and 01.02.2009, TDS was paid on 29.09.2009. For these two payments appellant relied on Calcutta High Court in case of CIT vs. Virgin Creations Ltd. where Calcutta High Court held that newly inserted provisions of sec.40(a)(ia) substituted by Finance Act, 2010 has to be considered retrospective in nature. amendment clearly states that TDS paid till filing of return, provisions of sec. 40(a)(1a) disallowance is not applicable. Following above evidence filed by appellant before me and also relying on decision of Calcutta High Court, A.O's addition is deleted. These grounds of appeal are allowed. 6. Contention of Revenue is that learned CIT(A) did not confront with AO, additional evidences furnished before him by assessee and hence there is violation of Rule 46A of I.T. Rules. Perusal of order passed by learned CIT(A) shows that Ld CIT(A) has observed that assessee has deducted TDS from professional fee of ` 90,86,800/- and paid same in time except for two payments. Those two payments have also been paid before due date of filing return of income. Accordingly, learned CIT(A) has deleted disallowance by following decision rendered by Hon'ble Calcutta High Court in case of CIT Vs. Virgin Creations Ltd. 3 M / s. E u cl i d So l ut io n s P . L t d . 7. We noticed that though there is no infirmity in decision rendered by learned CIT(A), yet details of deduction of TDS and payment thereof have not been properly brought on record by learned CIT(A). Hence, for purpose of verification of those details, we are of view that this issue needs to be set aside to file of Assessing Officer. Accordingly, we set aside order passed by learned CIT(A) on this issue and restore same to file of Assessing Officer with direction to verify details of deduction and remittance of TDS and decide issue in accordance with decision rendered by Hon'ble Calcutta High Court in case of Virgin Creations Ltd. 8. In result, appeal filed by Revenue is treated as allowed for statistical purposes. Order has been pronounced in Court on 26.9.2016. Sd/- Sd/- (RAMLAL NEGI) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated : 26/9/2016 Copy of Order forwarded to : 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Dy./Asstt. Registrar) PS ITAT, Mumbai DCIT-10(2), Mumbai v. M/s. Euclid Solutions P. Ltd