Appellantthrough: Ms Sumchi Aggarwal, Senior Standingcounsel With Ms Lakshmi Gurung, Juniorstanding Counsel, Ms Radhika Gupta And Mrabhishek Sharma, Advocates v. Dr. Jaideep Kumar Sharma

$~*IN THE HIGH COURT OF DELHI AT NEW DELHI 6. + ITA 95/2015 COMMISSIONER OF INCOME TAX-21(ERSTWHILE CIT-XIII) AppellantThrough: Ms Sumchi Aggarwal, Senior StandingCounsel with Ms Lakshmi Gurung, JuniorStanding Counsel, Ms Radhika Gupta and MrAbhishek Sharma, Advocates. versus DR. JAIDEEP KUMAR SHARMA Through: Mr Gautam Jain, Advocate. Respondent AND + ITA 352/2015 COMMISSIONER OF INCOME TAX-21(ERSTWHILE CIT-XIII) ..... AppellantThrough: Ms Sumchi Aggarwal, Senior StandingCounsel with Ms Lakshmi Gurung, JuniorStanding Counsel, Ms Radhika Gupta and MrAbhishek Sharma, Advocates. versus DR. JAIDEEP KUMAR SHARMA Through: Mr Gautam Jain, Advocate. Respondent CORAM:JUSTICE S. MURALIDHARJUSTICE VIBHU BAKHRU % ORDER19.11.2015 Signature Not Verified Digitally SignedBy:AMULYA ITA Nos.95 & 352 of2015 1. These appeals by the Revenue are directed against the common order dated 25^*^ July, 2014 passed by the Income Tax Appellate Tribunal (TTAT')in ITA No.5696/Del/2011 for Assessment Year ('AY') 2008-09 and ITANo.3893/Del/2010 for AY 2007-08. 2. The Assessee is a Doctor and is carrying on his professional activities athis diagnostic centre i.e. Dr. Jaideep's Diagnostic Centre, 30 JCM DLF-II,Gurgaon. He is the Proprietor of the said Centre. The Assessee filed a returnof income on 26^*^ September, 2008 declaring an income of Rs.7,95,291/-.The return was picked up for scrutiny and a notice was issued to theAssessee by the Assessing Officer ('AO'). During the course of theassessment proceedings, it was noticed that the Assessee had debited a sumof Rs.56,21,675/- under the head "Lab Test Expense". It was noticed thatthis payment was made to M/s SRL Ranbaxy Ltd. without deduction of taxat source although the payment was covered under Section 194J of the Act.Accordingly, the AO disallowed the expense under Section 40(a)(ia) of theAct and added it back to the income of the Assessee. 3. Aggrieved by the order of the AO, the Assessee filed an appeal before theCommissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) accepted the plea of the Assessee that the payment made to M/s SRL Ranbaxy Ltd. wasnot liable for deduction under Section 194J of the Act. 4. The ITAT has in the impugned order dated 25^*^ July, 2014 referred to theinsertion of the second proviso to Section 40(a)(ia) of the Act by FinanceAct, 2012 as discussed by Agra Bench of the ITAT in the case of RajivKumar Aggarwal v. CIT (order dated 29^ May, 2013 in ITANo.337/Agra/2013) which in turn followed the decision of this Court in CITV. Rajinder Kumar 362 ITR 241. It was held that the second proviso isdeclaratory and curative in nature. It was held that as long as thecorresponding income was brought to tax in the hands of the payee, it wasnot intended to disallow the expenditure in the hands of the payer due to nondeduction of tax at source. 5. The ITAT has in the impugned order in the present case noted that "theAssessee has filed necessary confirmation from the payee that they havepaid the amount received from the Assessee. The confirmation filed by theAssessee was enclosed in the paper book filed before the CIT(A)." 6. In similar circumstances, this court recently in CIT v. Ansal LandmarkTownship (P.) Ltd. (2015) 377 ITR 635 (Del) decided a similar issue in favour of the Assessee approving the order of the Agra Bench of the ITAT in the Rajiv Kumar Aggarwal {supra). 1. While admitting the present appeal on 27^ February, 2015 the following questions were framed for consideration: "Did the ITAT fall into error in holding that the disallowanceunder Section 40 (a) (ia) on account of the assessee notfollowing the provisions of Section 194 (J) and 194 (C) in thegiven facts of this case, was not justified." 8. In the light of the above discussion, the question is answered in the negative i.e. in favour of the Assessee and against the Revenue. The appealis dismissed. S. MURALIDHAR, J NOVEMBER 19, 2015MK VIBHU BAKHRU, J