Shree Shyam Trading Co., Kolkata V. ITO, Ward-41(1), Kolkata, Kolkata

ITA 1359/KOL/2012

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 3017 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-09-2012
• Court: TRIBUNAL
• Department Lawyers: R P NAG LD
• Assessee Lawyers: DARSHANA BAID CA LD
• Keywords: Retrospective amendment

Judgement Text

ITA NO 1359/KOL/12-A-PB-GM 1 , A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A CALCUTTA () BEFORE . . , SHRI P . K. BANSAL., ACCOUNTANT MEMBER !'# /AND $%$& 1(, SHRI GEORGE MATHAN, JUDICIAL MEMBER #) / ITA NO. 1359/KOL/2012 *% '+,/ ASSESSMENT YEAR: 2006-07 SHREE SHYAM TRADING CO. PAN: ABDSS 9003R I.T.O, WARD 41(1), KOLKATA ((. / APPELLANT ) - ' - - VERSUS -. (0(./ RESPONDENT ) (. *! /FOR THE APPELLANT / SMT DARSHANA BAID , CA, LD. AR 0(. *! / FOR THE RESPONDENT: / SHRI R.P NAG, LD. SR.DR 1'2 3 4 /DATE OF HEARING : 06-02-2013 5+ 3 4 /DATE OF PRONOUNCEMENT:06 -02-2013 / ORDER 67 / PER BENCH THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST O RDER OF THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS), XII, KOLKATA IN APPEAL NO. 298/XII/4 1(1)/08-09 DATED 23-12-2011 FOR THE ASSESSMENT YEAR 2006-07. 2. SMT./MISS DARSHANA BAID , CA, LEARNED AR REPR ESENTED ON BEHALF OF THE ASSESSEE AND SHRI R.P NAG, LEARNED SR. DR REPRESENTED ON BEHALF O F THE REVENUE. 3. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAISE D FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. CIT(A) ERRED IN LAW AS WELL AS IN FACT IN CONFIRMING DISALLOWANCE OF DYEING AND BLEACHING CHARGES OF R S.16,88,446/- PURPORTEDLY UNDER SECTION 40(A)(IA) OF THE I.T ACT. 2. THAT THE LD. CIT(A) OUGHT TO HAVE DELETED THE ENTI RE ADDITION OF DYEING AND BLEACHING CHARGES OF RS. 16,88,446/- IN VIEW O F RETROSPECTIVE AMENDMENT MADE BY FINANCE ACT, 2008 IN SECTION 40(A )(IA) OF THE I.T ACT. 4. IT WAS SUBMITTED BY THE LEARNED AR FOR THE ASSES SEE THAT THE ASSESSEE HAD DEDUCTED THE TDS ON DYEING AND BLEACHING CHARGES AND THE AMOUNT HAD BEEN PAID TO THE CREDIT OF THE CENTRAL GOVT ACCOUNT BEFORE THE DUE DATE OF FILING OF THE RET URN. IT WAS SUBMITTED THAT THE AO HAD DISALLOWED THE DYEING AND BLEACHING CHARGES ON THE GROUND THAT THE TDS HAD BEEN DEDUCTED AND PAID TO THE ACCOUNT OF THE CENTRAL GOVT AFTER THE DUE DATE AS P ROVIDED IN SECTION 40(A)(IA) AND CONSEQUENTLY ITA NO 1359/KOL/12-A-PB-GM 2 DISALLOWED THE TOTAL EXPENDITURE. IT WAS THE SUBMIS SION THAT IN VIEW OF THE PROVISO TO SECTION 40(A) (IA) THE TAX DEDUCTED HAS BEEN PAID TO THE ACCOUNT OF T HE CENTRAL GOVT BEFORE THE DUE DATE OF THE FILIN G OF THE RETURN NO DISALLOWANCE WAS CALLED FOR BY INVO KING THE PROVISION OF SECTION 40(A)(IA) OF THE I.T ACT 1961. SHE PLACED RELIANCE ON THE DECISION OF THE HO NBLE JURISDICTIONAL CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VIRGIN CREATIONS IN GA 3200/2011 DATED 23 RD NOVEMBER 2011. 5. IN REPLY, LEARNED SR.DR SUBMITTED THAT THE AMEN DMENT TO THE PROVISO TO SECTION 40(A)(IA) WAS NOT RETROSPECTIVE IN NATURE AND THE TDS HAVING NOT BEEN PAID WITHIN THE DUE DATE, THE DISALLOWANCE A S MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(A) WAS LIABLE TO BE UPHELD. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS I T IS NOTICED THAT THE TDS HAS BEEN DEDUCTED ON 31-03-2006 AND THE SAME HAS BEEN PAID ON 24-07 -2006, WHICH IS BEFORE THE DUE DATE OF FILING OF THE RETURN U/S. 139(1) OF THE I.T ACT 1961, IN VIEW OF THE PROVISO TO SECTION 40(A)(IA) AS ALSO THE DECISION OF THE HONBLE JURISDICTIONAL CALCUTTA HI GH COURT IN THE CASE OF VIRGIN CREATIONS (CITED SUPRA) THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(A) ON ACCOUNT OF DYEING AND BLEACHING CHARGES U/S. 40(A)(IA) STANDS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. . 8 1 6 1 9 8: THIS ORDER IS PRONOUNCED IN OPEN COURT AS DICTATED ON DT 6.-02-2013 SD/- SD/- *PP/SPS 3 **; <;+= / COPY OF THE ORDER FORWARDED TO: 1. . (. / THE APPELLANT : SHREE SHYAM TRADING CO 8A, SEN LANE, GR. FL., KOL-5. 2 0(. / THE RESPONDENT- I.T.O WARD 41(1), PODDAR COURT, 18 RABINDRA SARANI, KOL-1. 3 4. . * / THE CIT, * ( )/ THE CIT(A) 5 . '>*9 * / DR, KOLKATA BENCH 6 . GUARD FILE . 0; */ TRUE COPY, 1/ BY ORDER, 8 #$ /ASSTT REGISTRAR ( . . , ) (P. K. BANSAL, ACCOUNTANT MEMBER) ( $%$& 1 ( , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( (4 4 4 4) )) ) DATE 6-02-2013