ITO, New Delhi V. Smt. Seema Sharma, New Delhi

ITA 1281/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61760 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Assessee Lawyers: V K AGGARWAL
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH `G : NEW DELHI) BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.1281/DEL./2012 (ASSESSMENT YEAR : 2008-09) ITO, WARD 38(3), VS. SEEMA SHARMA, NEW DELHI C-84, OKHALA, PHASE-I, NEW DELHI-20. (PAN/GIR NO.AAAPS3278G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. AGGARWAL, ADV. REVENUE BY : SMT. SHUMANA SEN, SR.DR ORDER PER U.B.S. BEDI, J.M. THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A)- XXVII, NEW DELHI, DATED 05.01.2012, RELEVANT TO ASS ESSMENT YEAR 2008-09, WHEREIN DELETION OF ADDITION OF RS.19,75,456/- MADE BY THE ASSESSING OFFICER U/S 40(A)(IA) OF THE I.T.ACT,1961ON ACCOUNT OF LATE DEPOSIT OF TDS MADE BY THE ASSESSEE WITH RESPECT TO RENT, COMMISSION AND MAINTENANCE EXPENSES WITHOUT APPRECI ATING THE FACT THAT AMENDMENT BROUGHT IN BY SECTION 40(A)(IA) OF THE ACT WAS ONLY EFFECTIVE FROM 1.4.2010 AND NOT RETROSPECTIVE IN NATURE, HAS BEEN CHALLENGED. 2. THE ASSESSING OFFICER NOTED THAT SINCE THERE WAS AN APPARENT DEFAULT IN DEPOSIT OF TDS, THE ASSESSEE WAS ASKED TO FURNISH, COPY OF AL L THE TDS RETURNS FILED WITH THE I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 2 DEPARTMENT WITH EVIDENCE IN SUPPORT OF DEPOSIT OF T DS. THE DETAIL OF EXPENSES ON WHICH TDS DEDUCTED BUT DEPOSITED LATE AND TDS NOT D EDUCTED IS AS UNDER: HEAD UNDER WHICH EXPENSES CLAIMED PAYMENTS MADE/CREDITED BEFORE MARCH DATE OF PAYMENT/CREDIT AFTER MARCH 08 TOTAL DATE FOR DEPOSIT OF TDS FOR PAYMENTS MADE UPTO MARCH 08 DATE OF DEPOSIT OF TDS RENT 506000 46000 552000 31/3/2008 13/6/2008 COMMISSION 1066256 105488 1173744 31/3/2008 13/6/20 08 MAINTENANCE EXPENSES 101200 9200 110400 31/3/2008 13/6/2008 RENT 300000 - 300000 31/3/08 NOT DEDUCTED TOTAL 1975446 ACCORDING TO THE PROVISIONS OF LAW, TAX IS DEDUCTIB LE (AND IS SO DEDUCTED) DURING ANY MONTH BUT OTHER THAN THE LAST MONTH (I.E. ANY TIME BEFORE MARCH 1) OF THE PREVIOUS YEAR BUT IS NOT DEPOSITED ON OR BEFORE MARCH 31 OF THE P REVIOUS YEAR, THE EXPENDITURE CLAIMED IN THE CURRENT PREVIOUS YEAR IS NOT DEDUCTIBLE. BU T, IF TAX DEPOSITED WITH THE GOVT. AFTER THE END OF THE CURRENT PREVIOUS YEAR, THE EXPENDITU RE WILL BE DEDUCTIBLE IN THAT YEAR IN WHICH TAX IS DEPOSITED. THE ASSESSEE HAS DEFAULTED IN DEPOSIT OF TDS U/S 40(A)(IA). AS SUCH AN ADDITION OF RS.1975456 WOULD BE MADE U/S 40 (A)(IA) OF THE ACT, WHILE COMPUTING THE INCOME OF THE ASSESSEE. HOWEVER, THE ASSESSEE HAS MADE THE PAYMENT OF TDS IN THE NEXT F.Y., THEREFORE, ASSESSEE CLAIM OF PAYMENT WIL L BE CONSIDERED IN THE NEXT YEAR. 2. WITH THESE OBSERVATIONS, CLAIM OF THE ASSESSEE W AS DISALLOWED AND ADDITION OF RS.19,75,456/- WAS MADE U/S 40(A)(IA) OF THE ACT. 3. AGAINST WHICH ASSESSEE PREFERRED APPEAL AND CIT( A) DELETED THE IMPUGNED ADDITION BY DISCUSSING FACTS FROM PARAS.5.1 TO 5.6 AT PAGES 7-15, CONCLUDING IN LAST BUT ONE PARA. AT PAGE 15 WHILE FOLLOWING VARIOUS DECISI ON INCLUDING B BENCH OF ITAT DECISION IN THE CASE OF BANSAL PARIVAHAN (INDIA) ( P) LTD. VS. ITO (2011) 9 I.T.R.(TRIB.) 565, HONBLE SUPREME COURT DECISION IN THE CASE OF ALLIED MOTORS PRIVATE LIMITED VS. CIT (1997) 224 I.T.R. 677, IN THE CASE OF R.B. JODH A MAL KUTHIALA VS. CIT (1971) 82 I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 3 I.T.R. 570 AND NOTING THE CALCUTTA HIGH COURT DECIS ION IN THE CASE OF CIT VS. VIRGIN CREATIONS (I.T.A. NO.302 OF 2011, GA 32000/2011) DA TED 23.11.2011. 4. AGGRIEVED BY THIS ORDER OF THE CIT(A), DEPARTMEN T HAS COME UP IN APPEAL. WHILE RELYING UPON THE ORDER OF ASSESSING OFFICER, IT WAS STRONGLY PLEADED BY LD.DR. THAT SINCE AN AMENDMENT HAS BEEN SPECIFICALLY MADE WITH EFFEC T FROM PROSPECTIVE DATE I.E. FROM 1.4.2010, THEREFORE, THERE WAS NO OCCASION FOR CIT( A) TO GRANT THE RELIEF BY TREATING THE PROVISIONS HAVING RETROSPECTIVE EFFECT AND SO FAR A S CASE LAWS CITED BY THE ASSESSEE AND FOLLOWED BY CIT(A) IS CONCERNED, THAT IS NOT SPECIF ICALLY IN RELATION TO RELEVANT PROVISION, THEREFORE, IT COULD NOT BE APPLIED AND IT WAS PRAYE D FOR SETTING ASIDE THE ORDER OF CIT(A) AND RESTORING THAT OF THE ASSESSING OFFICER. 5. LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY HONBLE CALCUTTA HIGH COURT DECI SION IN THE CASE OF CIT VS. VIRGIN CREATIONS (SUPRA) WHICH HAS ALSO CONSIDERED SPL. BE NCH DECISION OF ITAT IN THE CASE OF BHARATI SHIPYARD LTD. IN WHICH SAID AMENDMENT WAS H ELD TO BE RETROSPECTIVE FROM ASSESSMENT YEAR 2005-06 AND NOW C BENCH, ITAT, M UMBAI, IN THE CASE OF SHRI PIYUSH C. MEHTA IN I.T.A. NO.1321/MUM./2009 FOR ASSESSMENT YEAR 2005-06 VIDE ORDER DATED 11.4.2012 HAS FOLLOWED CALCUTTA HIGH COURT DECISION TO HOLD THAT PROVISION OF AMENDMENT U/S 40(A)(IA) OF THE FINANCE ACT, 2010 I S RETROSPECTIVE FROM 1.4.2005 AND CONSEQUENTLY THE PAYMENT OF TAX DEDUCTED AT SOURCE DURING PREVIOUS YEAR RELEVANT TO AND FROM ASSESSMENT YEAR 2005-06 CAN BE MADE TO THE GO VT. ON OR BEFORE DUE DATE FOR FILING OF THE RETURN UNDER SECTION 139(1) AND SINCE TDS HA S BEEN DEDUCTED AND PAID WITHIN TIME STIPULATED FOR FILING OF THE RETURN U/S 139(1), THE REFORE, CIT(A) HAS PASSED A LEGAL AND I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 4 CORRECT ORDER TO DELETE THE IMPUGNED ADDITION WHOSE ACTION BEING LEGALLY PROPER AND JUSTIFIED, NEEDS TO BE FURTHER CONFIRMED, WHICH MAY BE CONFIRMED. 6. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERIN G THE MATERIAL ON RECORD AS WELL AS PRECEDENT RELIED UPON, WE FIND THAT UNDISPUTABLY TH E TAX DEDUCTED HAS BEEN PAID WITHIN DUE DATE FOR FILING OF RETURN U/S 139(1) AND AS PER HONBLE CALCUTTA HIGH COURT, AMENDMENT MADE U/S 40(A)(IA) BROUGHT OUT BY FINANCE ACT, 2010, IS THOUGH EFFECTIVE FROM 1.4.2010 IS TO BE TREATED AS RETROSPECTIVELY E FFECTIVE FROM 1.4.2005 AND RELEVANT PORTION OF THE JUDGMENT OF CALCUTTA HIGH COURT AS I NCORPORATED IN MUMBAI BENCH ORDER DATED 11.04.2012 FROM PARAS.14 ONWARDS READ AS UNDE R: 14. THE QUESTION AS TO WHETHER THE AMENDMENT BY TH E FINANCE ACT, 2010 AS AFORESAID IS PROSPECTIVE OR RETROSPECTIVE F ROM 1.4.2005 CAME UP FOR CONSIDERATION BEFORE THE MUMBAI SPECIAL BENCH ITAT IN THE CASE OF BHARATI SHIPYARD LTD. BEFORE THE SPECIAL BENCH I T WAS ARGUED THAT THE AMENDMENT WAS MADE WITH A VIEW TO REMOVE THE UNNECESSARY HARDSHIP CAUSED TO THE ASSESSEE BY THE EARLIE R PROVISION. THE SPECIAL BENCH BY ITS ORDER DATED 9.9.2011 HOWEVER HELD THAT THE AMENDMENT CARRIED OUT BY THE FINANCE ACT, 2010 WITH RETROSPE CTIVE EFFECT FROM ASSESSMENT YEAR 2010- 2011 CANNOT BE HELD TO BE RETROSPECTIVE FROM ASSESSMENT YEAR 2005-2006. THE SPECIAL BENC H HELD THAT THE AMENDMENT BROUGHT OUT BY THE FINANCE ACT, 201 0 TO SECTION 40(A)(IA) W.E.F. 01.04.2010, IS NOT REMEDIAL AND CURATIVE IN NATURE. 15. PRIOR TO THE DECISION OF THE SPECIAL BENCH, IDENTICAL ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE ITAT KOLKATA BENCH IN THE CASE OF VIRGIN CREATIONS VS. ITO, WARD 32(4), KOLKATA ITA NO. 267/KOL/2009 FOR AY 05-06 THE ISSUE THAT AROSE FOR CONSIDE RATION WAS DISALLOWANCE OF EXPENSES U/S.40(A)(IA)CLAIMED AS DEDUCTION W HILE COMPUTING INCOME FROM BUSINESS BEING EMBROIDERY CHARGES, DYEING CHARGES, INTEREST ON LOAN AND FREIGHT CHARGES WITHOUT DEDUCTING TAX AT SOURCE. THE EMBROIDERY CHARGES WERE PAID BETWEEN 22ND MAY, 2004 TO 30.11.2004. TAX HAD BEEN DEDUCTED AT SOURCE BUT WERE PAID TO THE GOVERNMENT ONLY ON 28.10.2005 AND NOT WITHIN THE TIME CONTEMPLATED BY SECTION 200(1) OF THE ACT. THE DYEING CHAR GES WERE PAID BETWEEN 5.4.2004 TO 20.8.2004. TAX WAS DEDUCTED AT SOURC E BUT WAS PAID TO THE GOVERNMENT ONLY ON 28.10.2005. FREIGHT OUTWARD CH ARGES WERE PAID WITHOUT DEDUCTION OF TAX AT SOURCE. INTEREST ON LOANS WERE CREDITED TO THE CREDITORS ACCOUNT ON 31.3.2005 TO THE EXTENT TH EY WERE PAID AFTER THE I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 5 DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT, THE DISALLOWANCE WAS MADE U/S.40(A)(IA) OF THE ACT. BEFORE THE TRIBUNAL, THE ASSESSEE CONTENTED THAT THE AMENDMENT BY THE F INANCE ACT, 2010 WITH RETROSPECTIVE EFFECT FROM 1ST APRIL, 2010 WHEREB Y AMOUNT OF TAX DEDUCTED AT THE TIME OF MAKING PAYMENT IN RE SPECT OF EXPENDITURE REFERRED TO IN SEC.40(A)(IA) OF THE ACT, IF PA ID TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING THE RETUR N OF INCOME DUE DATE U/S 139(1) OF THE ACT SHOULD BE ALLOWED AS A DEDUCTION. IN OTHER WORDS IT WAS ARGUED THAT THE AMENDMENT BY THE FINANCE ACT, 2010 TO THE PROVISIONS OF SEC.40(A)(IA) HAS TO BE HELD TO BE RETROSPECTIVE W.E.F. 1-4-2005. THE ITAT KOLKATA BENCH BY ITS ORDER DATED 15.12. 2010, HELD AS FOLLOWS: 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, KEEPING IN VIE W OF THE FACT THAT THOUGH THE LD.D.R. SUBMITTED THAT THE DE CISIONS OF THE COORDINATE BENCHES ARE NOT BINDING AND THE KO LKATA BENCHES MAY TAKE A DIFFERENT VIEW, SINCE MUMBAI BENCH AFTER ANALYZING THE PROVISIONS OF SEC.40(A)9IA) SINCE ITS INCEPTION AND VARIOUS AMENDMENTS MADE TO THE SAME INCLU DING THE SUGGESTION MADE BY THE INDUSTRY IN THE FORM OF REPRESENTATION IN THEIR PRE-BUDGET MEMORANDUM TO THE HONBLE FINANCE MINISTER AND BY APPLYING THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ALOM EXTRUSIONS LTD., HAS OBSERVED THAT THE PROVISIONS OF SECTION 40(A)(IA) AS STOOD PRIOR TO THE AMENDMENTS MADE BY THE FINANCE ACT 2010 THUS WERE RESULTING INTO UNINTENDED CONSEQUENCES AND CAUS ING GRAVE AND GENUINE HARDSHIPS TO THE ASSESSES WHO HAD SUB STANTIALLY COMPLIED WITH THE RELEVANT TDS PROVISIONS BY DE DUCTING THE TAXES AT SOURCE AND BY PAYING THE SAME TO THE CRED IT OF THE GOVERNMENT BEFORE THE DUE DATE OF FILING OF THEIR RETURNS U/S.139(1). IN ORDER TO REMEDY THIS POSITION AND T O REMOVE THE HARDSHIPS WHICH WAS BEING CAUSED TO THE ASSESSEE BELONGING TO SUCH CATEGORY, AMENDMENTS HAVE BEEN MADE IN TH E PROVISIONS OF SECTION 40(A)(IA) BY THE FINANCE ACT, 2010 . THE SAID AMENDMENTS, IN OUR OPINION, THUS ARE CLEARLY REMEDIAL/CURATIVE IN NATURE AS HELD BY THE HONBLE SUPREME COU RT IN THE CASE OF ALLIED MOTORS PVT. LTD. (SUPRA) AND MOM EXTRU SIONS LTD. (SUPRA) AND THE SAME THEREFORE WOULD APPLY RETROSPE CTIVELY W.E.F. 1ST APRIL, 2005. IN THE CASE OF R.B.JODHA MAL KUTHIALA 82 ITR 570, IT WAS HELD BY THE HONBLE SUPREME COURT T HAT A PROVISO WHICH IS INSERTED TO REMEDY UNINTENDED CONSEQUE NCES AND TO MAKE THE PROVISION WORKABLE, REQUIRES TO BE TREATED AS RETROSPECTIVE IN OPERATION SO THAT A REASONABLE INTERPRETATION CAN BE GIVEN TO THE SECTION AS A WHOLE. IN THE PRESENT CASE, THE AMOUNT OF TAX DEDUCTED AT SOURCE FROM THE FREIGH T CHARGES DURING THE PERIOD 01/04/2005 TO 28/02/2006 WAS PAID BY THE I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 6 ASSESSEE IN THE MONTH OF JULY AND AUGUST 2 006 I.E., WELL BEFORE THE DUE DATE OF FILING OF ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS BEING THE UNDISP UTED POSITION, WE HOLD THAT THE DISALLOWANCE MADE BY THE A .O. AND CONFIRMED BY THE LEARNED CIT(A) ON ACCOUNT O F FREIGHT CHARGES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) IS NOT SUSTAINABLE AS PER THE AMENDMENTS MADE IN THE SAI D PROVISIONS BY THE FINANCE ACT, 2010 WHICH, BEING REMEDIAL/CURAT IVE IN NATURE, HAVE RETROSPECTIVE APPLICATION, WE FIND NO RE ASON TO DEVIATE FROM THE DECISIONS OF THE ITATS MUMBAI BENCH AND AHMEDABAD BENCH, IN THE ABSENCE OF A CONTRARY VIEW, EXCEPT THE OTHER BENCHES DECISIONS OR ANY OTHER HIGH COURT. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE COORDINATE BENCHES (SUPRA), WE ALLOW THE GROUND NOS. I TO 3 OF THE ASSESSEES APPEAL. 16. AS AGAINST THE AFORESAID DECISION THE REVE NUE PREFERRED APPEAL BEFORE THE HONBLE CALCUTTA HIGH COURT. THE HONB LE CALCUTTA HIGH COURT IN ITA NO. 302 OF 2011 GA 3200/2011 DECID ED ON 23.11.2011, HELD AS FOLLOWS: WE HAVE HEARD MR. NIZAMUDDIN AND GONE THROU GH THE IMPUGNED JUDGMENT AND ORDER. WE HAVE ALSO EXAMINED THE POINT FORMULATED FOR WHICH THE PRESENT APPEAL IS SOUGHT TO BE ADMITTED. IT IS ARGUED BY MR. NIZAMUDDIN THAT THIS COURT NEEDS TO TAKE DECISION AS TO WHETHER SECTION 40(A)(IA) IS HAVI NG RETROSPECTIVE OPERATION OR NOT. THE LEARNED TRIBUNAL ON FACT FOUN D THAT THE ASSESSEE HAD DEDUCTED TAX AT SOURCE FROM THE PAID C HARGES BETWEEN THE PERIOD APRIL 1, 2005 AND APRIL 28, 2006 AND THE SAME WERE PAID BY THE ASSESSEE IN JULY AND AUGUST 2006 , I.E. WELL BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS FACTUAL POSITIO N WAS UNDISPUTED. MOREOVER, THE SUPREME COURT, AS HAS BEEN RECO RDED BY THE LEARNED TRIBUNAL, IN THE CASE OF ALLIED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTRUSIONS LTD., HAS ALREAD Y DECIDED THAT THE AFORESAID PROVISION HAS RETROSPECTIVE APPLI CATION. AGAIN, IN THE CASE REPORTED IN 82 ITR 570, THE SUPREME COURT HELD THAT THE PROVISION, WHICH HAS INSERTED THE REMEDY TO MAKE THE PROVISION WORKABLE, REQUIRES TO BE TREATED WI TH RETROSPECTIVE OPERATION SO THAT REASONABLE DEDUCTION CAN BE GIVEN TO THE SECTION AS WELL. IN VIEW OF THE AUTHORITATIVE PRONOUNCEMENT OF THE SUPREME COURT, THIS COURT CANNOT DECIDE OTHERWI SE. HENCE WE DISMISS THE APPEAL WITHOUT ANY ORDER AS TO COSTS. 17. IT CAN BE SEEN FROM THE ABOVE DECISIO N OF THE HONBLE CALCUTTA HIGH COURT THAT AMENDMENT TO THE PROVISIONS OF SEC.40(A)(IA) OF THE I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 7 ACT, BY THE FINANCE ACT, 2010 AS AFORESAID WAS HE LD TO BE RETROSPECTIVE FROM 1.4.2005. IF THE AMENDMENT IS CONSIDERED AS R ETROSPECTIVE FROM 1.4.2005, THE EFFECT WILL BE THAT PAYMENTS OF TDS TO THE CREDIT OF THE GOVERNMENT ON OR BEFORE THE LAST DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT FOR THE RELEVANT AY HAVE TO BE ALLOWED AS DEDUCTION. ADMITTEDLY IN THE CASE OF THE ASSESSEE PAYMENTS WERE SO MADE BEFORE THE SAID DUE DATE AND IN TERMS OF THE DECISION OF T HE HONBLE CALCUTTA HIGH COURT NO DISALLOWANCE COULD BE MADE BY THE AO U/S. 40(A)(IA) OF THE ACT. 18. THE QUESTION NOW IS AS TO WHETHER TO FOLLOW THE DECISION OF THE HONBLE SPECIAL BENCH WHICH HAS TAKEN THE VIE W THAT AMENDMENT BY THE FINANCE ACT, 2010 TO THE PROVISIONS OF SEC.40( A)(IA) OF THE ACT IS PROSPECTIVE AND NOT RETROSPECTIVE FROM 1.4.2005 OR THE DECISION OF THE HONBLE CALCUTTA HIGH COURT TAKING A CONTRAR Y VIEW. ON THE ABOVE QUESTION, THE LEARNED COUNSEL FOR THE ASSESSEE BROU GHT TO OUR NOTICE THE DECISION OF THE ITAT DELHI IN THE CASE OF TEJ INT ERNATIONAL (P) LTD. V. DY. CIT (2000) 69 TTJ (DEL) 650, WHEREIN IT W AS HELD THAT IN THE HIERARCHICAL JUDICIAL SYSTEM THAT WE HAVE IN IN DIA, THE WISDOM OF THE COURT BELOW HAS TO YIELD TO THE HIGHER WISDOM OF THE COURT ABOVE, AND THEREFORE, ONCE AN AUTHORITY HIGHER THAN THIS TRIBUNAL HAS EXPRESSED ITS ESTEEMED VIEWS ON A AN ISSUE, NORMALLY, THE DECISION OF THE HIGHER JUDICIAL AUTHORITY IS TO BE FOLLOWED. TH E BENCH HAS FURTHER HELD THAT THE FACT THAT THE JUDGMENT OF THE HIGHE R JUDICIAL FORUM IS FROM A NON-JURISDICTIONAL HIGH COURT DOES NOT REALLY AL TER THIS POSITION, AS LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE O F CIT V. GODAVARIDEVI SARAF 113 ITR 589(BOM). 19. IN VIEW OF THE ABOVE, WE HOLD FOLLOWI NG THE DECISION OF THE HONBLE CALCUTTA HIGH COURT THAT AMENDMENT TO THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT, BY THE FINANCE ACT, 2010 IS RETROSPECTIVE FROM 1.4.2005. CONSEQUENTLY, ANY PAYMENT OF TAX DEDUCTE D AT SOURCE DURING PREVIOUS YEARS RELEVANT TO AND FROM AY 05-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING RE TURN OF INCOME U/S.139(1) OF THE ACT. IF PAYMENTS ARE MAD E AS AFORESAID, THEN NO DEDUCTION U/S.40(A)(IA) OF THE ACT CAN BE MA DE. ADMITTEDLY IN THE PRESENT CASE THE ASSESSEE HAD DEPOSITED THE TAX DED UCTED AT SOURCE ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT AND THEREFORE THE IMPUGNED DISALLOWANCE DESERVES TO BE DELETED. WE ORDER ACCORDINGLY AND ALLOW THE APPEAL BY THE ASSESSEE. 20. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALLOWED. 7. AS SUCH, IN VIEW OF CALCUTTA HIGH COURT DECISI ON IN THE CASE OF CIT VS. VIRGIN CREATIONS (SUPRA) WHICH HAS BEEN FOLLOWED BY ITAT, MUMBAI, C BENCH IN THE CASE OF I.T.A. NO.1281/DEL./2012 (A.Y. : 2008-09) 8 PIYUSH C. MEHTA VS. ACIT(SURPA), THE IMPUGNED ORDER , IN OUR OPINION, NEEDS TO BE UPHELD. THEREFORE, FOLLOWING SAID DECISION, WE UPH OLD THE ORDER CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 8. AS A RESULT, THE APPEAL FILED BY THE DEPARTMENT GETS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 06.07.2012. SD/- SD/- (B.C. MEENA) ACCOUNTANT MEMBER (U.B.S. BEDI ) JUDICIAL MEMBER DATED : JULY 06, 2012 SKB COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A)-XXVIII, NEW DELHI. 5. CIT(ITAT) DEPUTY REGISTRAR, ITAT