M/s K.K. Enterprises., Kolkata V. A.C.I.T Cir - 56,kolkata, Kolkata

CO 1/KOL/2013

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2826 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K KOTHARI FCA SHRI DEB
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Depreciation; Condonation of delay; Unabsorbed depreciation; Ignorance of law
• Section: 143(3); 115JB; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 807 / KOL / 2013 & C.O. NO.01/KOL/2013 (A/O ITA NO.807/KOL/2013) ASSESSMENT YEAR :2009-10 DCIT, CIRCLE-2, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 AMRI HOSPITALS LTD., 4 & 5, CIT SCHEME LXXII, GARIAHA ROAD, KOLKATA-700 029 [ PAN NO. AAECS 6786 N ] V/S . V/S . M/S AMRI HOSPITAL LTD., 4 & 5, CIT SCHEME LXXII, GARIAHA ROAD, KOLKATA- 700 029 DCIT, CIRCLE-2, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY ASSESSEE SHRI D.K. KOTHARI, FCA /BY RESPONDENT SHRI DEBASISH BANERJEE, JCIT-SR-DR /DATE OF HEARING 07-02-2017 ! /DATE OF PRONOUNCEMENT 22-03-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL AS WELL AS CROSS OBJECTION (CO) FILED BY THE REVENUE AND ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIO NER OF INCOME TAX (APPEALS)-I, KOLKATA DATED 03.01.2013. ASSESSMENT W AS FRAMED BY ACIT, RANGE-2, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 13.12.2011 FO R ASSESSMENT YEAR 2009-10. ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 2 SHRI DEBASISH BANERJEE, LD. DEPARTMENTAL REPRESENTA TIVE REPRESENTED ON BEHALF OF REVENUE AND SHRI D.K. KOTHARI, LD. AUTHOR IZED REPRESENTATIVE APPEARED ON BEHALF OF ASSESSEE. FIRST WE TAKE UP ASSESSEES CO NO.01/KOL/2013 . 2. GROUNDS RAISED BY THE ASSESSEE IN ITS CO ARE AS FOLLOWS:- A. GROUNDS TO SUPPORT ORDER OF CIT(A): 1. IN VIEW OF FACTS AND CIRCUMSTANCES OF THE CASE L EARNED CIT(A) HAS RIGHTLY ALLOWED RELIEF, IN RELATION TO VARIOUS GROU NDS, WHICH HAVE BEEN CHALLENGED BY THE ASSESSING OFFICER (AO)VIDE GROUND NOS 1-4, SO THE ORDER OF LEARNED CIT(A) MAY BE CONFIRMED. B. GROUNDS TO SEEK FURTHER, ADDITIONAL AND ALTERNAT E RELIEF: 1) FOR THAT LD. ASSESSING OFFICER (AO) MAY BE DIREC TED NOT TO APPLY SECTION 115JB SINCE THERE IS NO COMPUTATION OF: (A) GROSS TOTAL INCOME, (B) DEDUCTIONS UNDER CHAPTER VIA, (C) TOTAL INCOME AND (D) TAX PAYABLE AND THEREFORE, PRE-CONDITIONS OF CHARGING AND COMPU TATION PROVISIONS OF S. 115JB READ WITH RELEVANT OTHER PROVISIONS ARE NO T SATISFIED AND S. 115JB IS NOT AT ALL APPLICABLE AND THE LEARNED AO W AS WRONG IN INVOKING S 115JB. 2) FOR THAT IN VIEW OF THE JUDGMENTS OF THE CALCUTT A TRIBUNAL IN THE CASE OF VISHNU SUGAR MILLS LTD. WHICH HAVE BEEN APPROVE D BY THE CALCUTTA HIGH COURT, AND HAS ATTAINED FINALITY, SECTION 115J B IS NOT AT ALL APPLICABLE IN CASE OF ASSESSEE FOR THE YEAR UNDER C ONSIDERATION FOR THE REASONS AS STATED IN EARLIER GROUND. 3) FOR THAT LEARNED AO MAY BE DIRECTED NOT TO APPLY S. 115JB SINCE ASSESSEE COMPANY IS NOT A DIVIDEND PAYING COMPANY A ND IN VIEW OF DECISION OF ITAT, KOLKATA, DATED 31.10.2008 IN CASE OF NEERAJ VANIJYA P LTD. IN ITA NO. 1504/KOL/2008 (WHICH HAS ALSO ATTAINED FINALITY), SECTION 115JB IS NOT APPLICABLE IN CASE OF NON-DIVIDEND PAY ING COMPANIES. 3. AT THE OUTSET, LD. AR FOR THE ASSESSEE DREW OUR ATTENTION THAT ITS CO IS BARRED BY LIMITATION FOR 3 YEARS AND THREE MONTHS. THE LD. AR BEFORE US SUBMITTED THAT IT HAD NO KNOWLEDGE THAT THE PROVISI ONS OF SECTION 115JB OF THE ACT ARE NOT APPLICABLE IN CASE OF A COMPANY INCURRI NG LOSSES. THEREFORE NO APPEAL WAS FILED. HOWEVER THE CO WAS FILED IMMEDIAT ELY AFTER RECEIVING THE ADVICE FROM THE CONSULTANT ABOUT THE PROVISIONS OF NON-APPLICABILITY OF THE PROVISIONS OF SECTION 115JB IN CASE OF LOSS INCURRI NG COMPANY UNDER THE ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 3 NORMAL PROVISIONS OF THE ACT. THUS, THERE WAS NO LA PSE ON PART OF ASSESSEE BEING A COMPANY WHO HAS TO RELY ON NATURAL PERSONS BEING AGENTS ENGAGED FOR ATTENDING TAX MATTERS. THEREFORE, IT IS PRAYED THAT THE DELAY BE GRANTED AND APPEAL BE HEARD ON MERIT IN INTEREST OF JUSTICE AND TO RENDER JUSTICE. THE LD. AR IN SUPPORT OF HIS CLAIM HAS RELIED ON THE FOLLOWING JUDGMENTS. 1. COLLECTOR, LAND ACQUISITION V MASTER KASTIJI - 167 ITR 471 (SC). 2. G. RAMEGOWDA V. SPECIAL LAND ACQUISITION OFFICE R, [1998] 2 SCC 142 3. N.BALKRISHNAN V M.M.KRISHNA MURTHY AIR 1998 SE 3222. 4. OFFICE OFTHE CHIEF POST MASTER GENERAL VERSUS L IVING MEDIA INDIA LTD. 2012 348 ITR 7 IN WHICH ABOVE THREE AND MANY O THER JUDGMENTS WERE CONSIDERED. 5. STATE OF MP VS. PRADEEP KUMAR (2000) 7 SC 372, 376-77) CITED ON PAGE NO. 12747 IN BOOK OF SHRI CHATURVEDI AND PI THISARIA (VOL 8) SIXTH EDITION 2014, IN WHICH THE FOLLOWING SUMMA RY IS GIVEN: ' ... EVEN A VIGILANT LITIGANT IS PRONE TO COMMIT M ISTAKES. AS THE APHORISM 'TO ERR IS HUMAN' IS MORE A PRACTICAL NOTION OF HUMAN B EHAVIO U R THAN AN ABSTRACT PHILOSOPHY, THE INTENTIONAL LAPSE ON THE PART OF A LITIGANT SHOULD NOT NORMALLY CAUSE THE DOORS OF THE JUDICATURE PERMANENTLY CLOSE D BEFORE HIM. THE EFFORT OF THE COURT SHOULD NOT BE ONE OF FINDING MEANS TO PUL L DOWN THE SHUTTERS OF ADJUDICATORY JURISDICTION BEFORE A PARTY WHO SEEKS JUSTICE, ON ACCOUNT OF ANY MISTAKE COMMITTED BY HIM, BUT TO SEE WHETHER IT IS POSSIBLE TO ENTERTAIN HIS GRIEVANCE IF IT IS GENUINE' THE RULES LAID DOWN IN VARIOUS JUDGMENTS ARE SUMMAR IZED: 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERIT ORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED TH E HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERI TS AFTER HEARING THE PARTIES. 3. 'EVERY DAY'S DELAY MUST BE EXPLAINED' DOES NOT M EAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOU R'S DELAY, ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 4 EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERA TIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DE SERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE V ESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DE LAY. 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED N OT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BU T BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO.' 7. IN G. RAMEGOWDA V. SPECIAL LAND ACQUISITION OFF ICER, [1998] 2 SCC 142 LAID DOWN THAT THE EXPRESSION SUFFICIENT CA USE IN SECTION 5 OF THE LIMITATION ACT, 1963 MUST RECEIVE A LIBERA L CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL JUSTICE WHERE NO GROSS NE GLIGENCE OR DELIBERATE INACTION OF LACK OF BONAFIDE IS IMPUTABL E TO THE PARTY SEEKING CONDONATION OF DELAY. 8. LENGTH OF DELAY IS NOT TO MATTER IN CONTEXT OF COD. IN VIEW OF ABOVE JUDGMENTS IT IS REQUESTED THAT COM PLEXITY OF TAX LAW AND IGNORANCE SOME APPLICABLE JUDGMENTS (PARTICULARLY U NPUBLISHED JUDGMENTS) AND LACK OF ADVICE, PERSONS WHO LOOKED AFTER TAX MA TTERS EARLIER IS A GOOD AND SUFFICIENT CAUSE. FINALLY THE AR REQUESTED THE BENC H TO CONDONE THE DELAY IN FILING THE CO. ON THE OTHER HAND THE LD DR SUBMITTED THAT THE LAW ON THE ISSUE CAN BE SUMMARIZED TO THE EFFECT THAT WHERE A CASE HAS BEEN PRESENTED IN THE COURT BEYOND LIMITATION, THE APPLICANT HAS TO EXPLAIN THE COURT AS TO WHAT WAS THE ' SUFFICIENT CAUSE ' WHICH MEANS AN ADEQUATE AND ENOUGH REASON WHICH PREVENTED HIM TO APPROACH THE COURT WITHIN LIMITATI ON. IN CASE A PARTY IS FOUND TO BE NEGLIGENT, OR FOR WANT OF BONAFIDE ON HIS PAR T IN THE FACTS AND ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 5 CIRCUMSTANCES OF THE CASE, OR FOUND TO HAVE NOT ACT ED DILIGENTLY OR REMAINED INACTIVE, THERE CANNOT BE A JUSTIFIED GROUND TO CON DONE THE DELAY. NO COURT COULD BE JUSTIFIED IN CONDONING SUCH AN INORDINATE DELAY BY IMPOSING ANY CONDITION WHATSOEVER. THE APPLICATION IS TO BE DECI DED ONLY WITHIN THE PARAMETERS LAID DOWN BY THIS COURT IN REGARD TO THE CONDONATION OF DELAY. IN CASE THERE WAS NO SUFFICIENT CAUSE TO PREVENT A LIT IGANT TO APPROACH THE COURT ON TIME CONDONING THE DELAY WITHOUT ANY JUSTIFICATI ON, PUTTING ANY CONDITION WHATSOEVER. IN THE ABSENCE OF SUFFICIENT REASONS FO R THE DELAY IN FILING THE APPEAL, IN SUCH SITUATION THE DELAY SHOULD NOT BE C ONDONED. THE LD. HAS RELIED IN THE JUDGMENT OF HONBLE SUPREME COURT IN THE CAS E OF BASAWARAJ & ANR. VERSUS THE SPL. LAND ACQUISITION OFFICER IN CIVIL A PPEAL NO. 6974 OF 2013. 4. NOW THE QUESTION BEFORE US ARISES FOR OUR ADJUDI CATION AS TO WHETHER THERE WERE SUFFICIENT REASONS WHICH PREVENTED THE A SSESSEE FROM FILING THE APPEAL/CO IN THE AFORESAID FACTS & CIRCUMSTANCES. T HE ACCEPTABILITY OF THE ASSESSEE'S EXPLANATION HAS TO BE TESTED ON THE PRIN CIPLES WHETHER IGNORANCE OF LAW AMOUNTS TO SUFFICIENT CAUSE. IT IS THE ASSES SEE'S CASE THAT IT HAD NO KNOWLEDGE FOR THE NON-APPLICABILITY OF THE PROVISIO NS OF SECTION 115JB OF THE ACT. IT IMMEDIATELY FILED THE CO ON THE ADVICE OF T HE CONSULTANT WHEN IT WAS RECEIVED. IN THE AFORESAID FACTS & CIRCUMSTANCES WE FIND THAT THERE IS NOTHING TO SUGGEST ANY DELIBERATE OR INTENTIONAL DELAY IN F ILING THE APPEAL TO THE HONBLE ITAT. THE ASSESSEE HAD NOTHING TO GAIN BY DELAYING THE APPLICATION. THE ASSESSEE FILED CO AS SOON AS IT BECAME AWARE OF ITS OBLIGATION. THIS IS A FIT CASE WHERE THE DELAY SHOULD HAVE BEEN CONDONED CONS IDERING THE PECULIAR FACTS & CIRCUMSTANCES. IN THIS CONNECTION WE ALSO R ELY IN THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF STATE OF WEST BEN GAL V. ADMINISTRATOR, HOWRAH MUNICIPALITY [1972] 1 SCC 366, IT WAS HELD B Y THE SUPREME COURT THAT IF A PARTY HAD ACTED IN A PARTICULAR MANNER ON A WR ONG ADVICE GIVEN BY HIS LEGAL ADVISOR, HE CANNOT BE HELD GUILTY OF NEGLIGEN CE SO AS TO DISENTITLE THE PARTY TO PLEAD SUFFICIENT CAUSE. IN N. BALAKRISHNAN V. M. KRISHNAMURTHY [1998] 7 SCC 123, IT WAS HELD BY THE SUPREME COURT THAT TH E RULES OF LIMITATION ARE ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 6 NOT MEANT TO DESTROY THE RIGHTS OF PARTIES. THEY AR E MEANT TO SEE THAT PARTIES DID NOT RESORT TO DILATORY TACTICS BUT SEEKING THEI R REMEDY PROMPTLY. CONDONATION OF DELAY IS A MATTER OF DISCRETION OF T HE COURT. LENGTH OF DELAY IS NO MATTER ACCEPTABILITY OF EXPLANATION IS THE ONLY CRITERION. IN EVERY CASE OF DELAY THERE WILL BE SOME LAPSE ON THE PART OF TH E LITIGANT CONCERNED. THAT ALONE IS NOT ENOUGH TO TURN DOWN HIS PLEA AND SHUT THE DOOR AGAINST HIM. IF THE EXPLANATION DOES NOT SMACK OF MALA FIDES OR IT IS N OT PUT FORTH AS PART OF A DILATORY STRATEGY, THE COURT MUST SHOW UTMOST CONSI DERATION TO THE SUITOR. BUT WHEN THERE IS REASONABLE GROUND TO THINK THAT THE D ELAY IS OCCASIONED BY THE PARTY DELIBERATELY TO GAIN TIME, THEN THE COURT SHO ULD LEAN AGAINST ACCEPTANCE OF THE EXPLANATION. THERE IS NO PRESUMPTION THAT TH E DELAY IN APPROACHING THE COURT IS ALWAYS DELIBERATE. THE WORDS ' SUFFICIENT CAUSE ' SHOULD RECEIVE A LIBERAL CONSTRUCTION SO AS TO ADVANCE SUBSTANTIAL J USTICE. IN THE LIGHT OF THE AFORESAID PRINCIPLE LAID DOWN B Y THE HON'BLE SUPREME COURT, IT WAS TO BE HELD IN THE INSTANT CASE THAT THE ASSE SSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PREFERRING THE CO AND THE DEL AY HAD TO BE CONDONED. THE ASSESSEE COULD NOT BE FAULTED FOR HAVING BONA F IDE BELIEF FOR THE APPLICABILITY OF THE MAT PROVISIONS. THE ASSESSEE H AD NOTHING TO GAIN BY DELAYING THE FILING OF THE APPEAL. THE ASSESSEE' S EXPLANATION WAS BONA FIDE AND THE FACTS DID NOT SHOW THAT THE ASSESSEE DELIB ERATELY DELAYED THE FILING OF THE APPEAL. FOR THOSE REASONS, THE DELAY IN QUESTION HAD TO BE CONDONED. THUS WE CONDONE THE DELAY AND ADMIT THE A PPEAL FOR HEARING. 5. THE INTER-CONNECTED ISSUE RAISED BY ASSESSEE IN ITS CO IS WHETHER LD. CIT(A) IS JUSTIFIED IN APPLYING THE PROVISIONS OF S EC. 115JB OF THE ACT THOUGH THE ASSESSEE HAS DECLARED LOSS IN ITS INCOME RETURN UNDER THE NORMAL PROVISION OF THE ACT. 6. AT THE OUTSET, LD. AR FOR THE ASSESSEE BROUGHT T O OUR NOTICE THAT THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION W AS FILED AT LOSS DUE TO UNABSORBED DEPRECIATION. THEREFORE, THERE WAS NO CO MPUTATION OF GROSS TOTAL INCOME, DEDUCTION UNDER CHAPTER VIA, TOTAL INCOME A ND TAX PAYABLE IN NORMAL ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 7 COMPUTATION OF INCOME. LD. AR SUBMITTED THAT ASSESS ING OFFICER ALSO FRAMED ASSESSMENT U/S. 143(3) OF THE ACT AT LOSS UNDER THE NORMAL PROVISION OF INCOME TAX ACT DUE TO UNABSORBED DEPRECIATION. HOWE VER, THE ASSESSEE HAS PAID TAX U/S 115JB OF THE ACT DUE TO ITS MISTAKE AN D IGNORANCE OF LAW. IT WAS ALSO SUBMITTED THAT IT RECOMMENDED NO DIVIDEND IN T HE LAST TWO YEARS. IN VIEW OF ABOVE PROVISIONS, LD. AR SUBMITTED THAT THE PROV ISIONS OF SEC. 115JB OF THE ACT ARE NOT APPLICABLE TO THE PRESENT CASE OF ASSES SEE. LD. AR OF THE ASSESSEE IN SUPPORT OF HIS CLAIM HAS ALSO RELIED ON THE ORDER OF THIS TRIBUNAL E BENCH IN THE CASE OF CIT VS. M/S VISHNU SUGAR MILLS LTD. IN ITA NOS. 2131, 2133/KOL/2004, 193 & 774/KOL/2005 AND 918/KOL /2002 DATED 17.08.2005 RELATING TO AYS 2001-02,1998-99, 1996-97 , 1997-98. 6.1 AFTER HEARING THE LD. AR OF THE ASSESSEE WE FIN D THAT THE INSTANT ISSUE WAS NOT RAISED BEFORE THE LD. CIT(A) BY ASSESSEE. T HEREFORE, SAME WAS NOT ADJUDICATED. HOWEVER, WE FURTHER FIND THAT ISSUE RA ISED BY ASSESSEE IS LEGAL IN NATURE AND WE ARE INCLINED TO ADMIT THE SAME AFTER HAVING RELIANCE IN THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL CORPORATION OF INDIA VS. CIT REPORTED IN 229 ITR 383 (SC). AS THE ISSUE IS NOT ARISING FROM THE ORDER OF AUTHORITIES BELOW, THEREF ORE, WE ARE INCLINED TO RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AND IN THE LIGHT OF ABOVE STATE D DISCUSSION. HENCE, THE CO FLED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSE. 7. IN THE RESULT, ASSESSEES CO IS ALLOWED FOR STAT ISTICAL PURPOSE. COMING TO REVENUES APPEAL IN ITA NO.807/KOL/2013 . 8. FIRST ISSUE RAISED BY REVENUE IN GROUND NO. 1 AN D 2 IS THAT LD. CIT(A) ERRED IN ACCEPTING THE BOOK PROFIT AS COMPUTED BY T HE ASSESSEE U/S 115JB OF THE ACT WITHOUT MAKING THE REQUIRED ADJUSTMENT IN T HE BOOK PROFIT AS PER THE PROVISIONS OF LAW. 9. AT THE OUTSET, WE FIND THAT ISSUE RAISED BY REVE NUE DEPENDS ON THE OUTCOME OF THE ISSUE RAISED BY ASSESSEES CO. IT IS ALSO IMPORTANT TO NOTE THAT THE ISSUE RAISED BY ASSESSEE IN ITS CO HAS BEEN RES TORED TO THE FILE OF AO FOR ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 8 FRESH ADJUDICATION IN ACCORDANCE WITH LAW. CONSIDER ING THE FACTS IN TOTALITY, WE ARE INCLINED TO RESTORE THE ISSUE TO THE FILE OF AO TO ADJUDICATE AFRESH AS PER LAW AND IN THE LIGHT OF THE OBSERVATION MADE IN THE CO FILED BY ASSESSEE. HENCE, THIS ISSUE RAISED BY REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. 10. NEXT ISSUE RAISED BY REVENUE IN GROUND NO. 3 AN D 4 IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO ON AC COUNT OF TDS DEPOSITED IN CENTRAL GOVT. ACCOUNT AFTER THE STIPULATED TIME. 11. AT THE OUTSET, IT WAS OBSERVED THAT LD. CIT(A) HAS GIVEN VERY CLEAR FINDING TO ALLOW THE APPEAL OF ASSESSEE IF THE TDS HAS BEEN DEPOSITED BEFORE DUE DATE SPECIFIC U/S. 139(1) OF THE ACT. THE GRIEV ANCE OF REVENUE IS THAT THE AMENDMENT BROUGHT BY THE FINANCE ACT 2010 IN SECTIO N 40(A)(IA) IS APPLICABLE PROSPECTIVELY FROM THE AY 2010-11 AND THE INSTANT I SSUE RELATES TO THE AY 2009-10. THUS THE AMENDED PROVISIONS ARE NOT APPLIC ABLE TO THE INSTANT CASE BEFORE US. THE LAW PRIOR TO THE AMENDMENT U/S 40(A)(IA) BY THE FINANCE ACT 2010 READS AS UNDER : AMOUNTS NOT DEDUCTIBLE. 40. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECT IONS 30 TO 67 [38 ], THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTIN G THE INCOME CHARGEABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PR OFESSION, 68 (A) IN THE CASE OF ANY ASSESSEE 69 [(I) ------------------------- (IA) ANY INTEREST, COMMISSION OR BROKERAGE, 70 [RENT, ROYALTY,] FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB -CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPP LY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED O R, AFTER DEDUCTION, 71 [HAS NOT BEEN PAID, (A) IN A CASE WHERE THE TAX WAS DEDUCTIBLE AND WA S SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR , ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 ; OR (B) IN ANY OTHER CASE, ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR [ PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR, OR HAS BEEN DEDUCT ED ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 9 (A) DURING THE LAST MONTH OF THE PREVIOUS YEAR BU T PAID AFTER THE SAID DUE DATE; OR (B) DURING ANY OTHER MONTH OF THE PREVIOUS YEAR B UT PAID AFTER THE END OF THE SAID PREVIOUS YEAR,SUCH SUM SH ALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF T HE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID.] AS PER THE OLD PROVISION THE TDS WAS DEDUCTIBLE & P AYABLE BEFORE FILING THE INCOME TAX RETURNS UNDER SECTION 139(1) OF THE ACT IF IT RELATES TO THE LAST MONTH OF THE PREVIOUS YEARS AND IF IT RELATES TO OTHER MO NTHS THEN WITHIN THE FINANCIAL YEAR. HOWEVER THE ABOVE PROVISION WAS AMENDED BY THE FINA NCE ACT 2010 EFFECTIVE FROM THE AY 2010-11 WHICH READS AS UNDER : AMOUNTS NOT DEDUCTIBLE. 40. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTIO NS 30 TO 88 [38], THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTIN G THE INCOME CHARGEABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PR OFESSION, 89 (A) IN THE CASE OF ANY ASSESSEE 90 [(I) (IA) ANY INTEREST, COMMISSION OR BROKERAGE, 91 [RENT, ROYALTY,] FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB -CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPP LY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED O R, AFTER DEDUCTION, 92 [ HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFI ED IN SUB-SECTION (1) OF SECTION 139 : ] 93 [PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR, OR HAS BEEN DEDUCT ED DURING THE PREVIOUS YEAR BUT PAID AFTER THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 , SUCH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPU TING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX H AS BEEN PAID. ] FROM THE PLAIN READING OF THE ABOVE PROVISIONS, IT IS CLEAR THAT THE TDS PERTAINING TO THE FINANCIAL YEAR SHOULD HAVE BEEN D EDUCTED & PAID WITHIN THE TIME ALLOWED UNDER SECTION 139(1) OF THE ACT. THE A MENDMENT TO SECTION 40(A)(IA) OF THE ACT I.E. VIDE FINANCE ACT, 2010 W. E.F. 01.04.2010, WHEREBY THE DEPOSIT OF TAX DEDUCTED AT SOURCE, DEPOSITED WITH T HE CENTRAL GOVERNMENT BY THE DUE DATE OF THE FILING THE RETURN FOR THE RELEV ANT YEAR, I.E., WHERE THE TAX WAS DEDUCTIBLE AT ANY TIME DURING THE RELEVANT PREV IOUS YEAR, HAS BEEN ITA NO.807 & CO 01/KOL/2013 A.Y. 2009- 10 DCIT CIR-2, KOL. VS. AMRI HOSPITAL LTD. PAGE 10 INTERPRETED BY THE HON'BLE COURTS OF LAW AS RETROSP ECTIVE IN NATURE, SO THAT IT WOULD APPLY FOR THE CURRENT YEAR AS WELL. THE DECIS IONS BY THE HIGHER COURTS OF LAW, AS IN THE CASE OF CIT V. RAJINDER KUMAR [2014] 362 ITR 241/220 TAXMAN 3/[2013] 39 TAXMANN.COM 126 (DELHI) AND CIT V. NARESH KUMAR [2014] 362 ITR 256/221 TAXMAN 59/[2013] 39 TAXMANN.COM 182 (DE LHI), HAVE READ DOWN THE SAID AMENDMENT, HOLDING IT AS RETROSPECTIVE ON THE GROUND OF IT BEING ONLY CLARIFICATORY AND TOWARD MITIGATING THE HARDSHIP BE ING CAUSED AND, FURTHER, OF THE PAYMENT BY DUE DATE QUA THE DEDUCTIONS EFFECTED FOR THE FIRST ELEVEN MONTHS OF THE RELEVANT PREVIOUS YEAR AS SUFFICIENT COMPLIANCE OF THE PROVISION. ACCORDINGLY, WE FIND NO INFIRMITY IN THE ORDER OF L D. CIT(A). WE DECIDE ACCORDINGLY. 12. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWED F OR STATISTICAL PURPOSE AND THAT OF ASSESSEES CO IS ALLOWED FOR ST ATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 22 /03/2017 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP '#$- 22 / 03 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S AMRI HOSPITAL LTD., 4&5 CIT SCHEME LX XII, GARIAHA ROAD, KOL-29 2. /REVENUE-DCIT, CIRCLE-2, AAYAKAR BHAWAN, P-7, CHOWR INGHEE SQR, KOLKATA-69 3.#,#-. / / CONCERNED CIT KOLKATA 4. /- / CIT (A) KOLKATA 5.2 3455-., -.!, / DR, ITAT, KOLKATA 6.489:; / GUARD FILE. BY ORDER/ , /TRUE COPY/ /# -.!,