ACIT 24(1), MUMBAI V. STANDARD ENGINEERING WORKS, MUMBAI

ITA 1471/MUM/2013

• Counselvise Citation: 147119914 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 22-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOURYA PRATAP
• Assessee Lawyers: DEEPAK TOKEKAR
• Keywords: Retrospective amendment
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI , , BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEM BER . / ITA NO. 1471 / MUM./201 3 ( / ASSESSMENT YEAR : 20 0 8 09 ) ASSTT. COMMISSIONER OF INCOME TAX RANGE 2 4 ( 1 ), C 1 3 , PRATYAKSHA KAR BHAVAN , BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400 051 .. / APPEL LANT V/S STANDARD ENGINEERING WORKS PLOT NO.42 B, KANDIVALI INDL. ESTATE CHARKOP, KANDIVALI (WEST) MUMBAI 400 067 .... / RESPONDENT ./ PERMANENT ACCOUNT NUMBER AAAFS9821K / REVENUE BY : M R. MOURYA PRATAP / ASSESSEE BY : MR. DEEPAK TOKEKAR / DATE OF HEARING 2 1 .05.2014 / DATE OF ORDE R 21.05.2014 / ORDER , / PER AMIT SHUKLA , J.M. THE PRESENT APPEAL HA S BEEN PREFERRED BY THE REVENUE CHALLENGING THE IMPUGNED ORDER DATED 19 TH DECEMBER 2012, PASSED BY T HE LEARNED COMMISSIONER (APPEALS) XXX I V , MUMBAI, FOR THE QUANTUM STANDARD ENGINEERING WORKS 2 OF ASSESSMENT PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1 961 (FOR SHORT 'THE ACT' ) FOR THE ASSESSMENT YEAR 20 09 0 9, ON THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN COMING TO THE CONCLUSION THAT THE AMENDMENT IN SECTION 40(A)(IA) INTRODUCED BY THE FINANCE ACT, 2010, IS HAVING RETROSPECTIVE EFFECT, IGNORING THAT THE AMENDMENT IS EFFECTIVE FROM 1 ST JANUARY 2010. 2 . T HE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD FAILED TO DEPOSIT THE TDS DEDUCTED FOR THE PERIOD FROM 1 ST APRIL 2007 TO 28 TH FEBRUAR Y 2008, AMOUNTING TO ` 30,34,572, BEFORE 31 ST MARCH 2008. THE ENTIRE TDS DEDUCTED WAS DEPOSITED ONLY ON 30 TH MARCH 2008. THUS, AFTER INVOKING THE PROVISIONS OF SECTION 40(A)(IA), HE DISALLOWED THE CLAIM ON ACCOUNT OF LABOUR CHARGES. 3 . THE LEARNED COMMISSION ER (APPEALS) HAS HELD THAT THE AMENDMENT TO THE PROVISO TO SECTION 40(A)(IA) WILL HAVE RETROSPECTIVE EFFECT AFTER FOLLOWING VARIOUS DECISIONS OF THE TRIBUNAL. 4 . BEFORE US, IT HAS BEEN SUBMITTED BY THE LEARNED COUNSEL THAT THIS ISSUE NOW STANDS COVERED BY TH E DECISION S OF THE HON'BLE DELHI HIGH COURT IN CIT V/S RAJINDER KUMAR, [2014] 362 ITR 241 (DEL.) AND CIT V/S NARESH KUMAR, [2014] 362 ITR 256 (DEL.) AND THE DECISION OF HON'BLE GUJARAT HIGH COURT IN CIT V/S STANDARD BUILDCON, [2014] 41 TAXMAN.COM 155 (GUJ. ). IN ALL THESE JUDGMENTS, THE HIGH COURTS HAVE HELD THAT IF THE TAX DEDUCTED BY THE ASSESSEE HAVE BEEN DEPOSITED BEFORE THE DUE DATE, THEN, DEDUCTION IS ALLOWABLE UNDER THE PROVISO TO SECTION 40(A)(IA) THOUGH BROUGHT IN STATUTE W.E.F. 1 ST OCTOBER 2010, BU T WILL APPLY RETROSPECTIVELY. STANDARD ENGINEERING WORKS 3 5 . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 6 . AFTER HEARING BOTH THE PARTIES AND ON A PERUSAL OF THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE , WE FIND THAT THE ISSUE BEFORE US IS COVERED BY THE DECISIONS OF THE HIGH COURTS CITED SUPRA AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE HOLD THAT THE ASSESSEES CLAIM FOR DEDUCTION IS ALLOWABLE AN D THE SAME CANNOT BE DISALLOWED UNDER SECTION 40(A)(IA) BECAUSE, ADMITTEDLY, THE ASSESSEE HAS DEPOSITED THE PAYMENT OF TDS ON 30 TH MAY 2008, INTO THE GOVERNMENT TREASURY, WHICH IS MUCH BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME I.E., 30 TH SEPTEM BER 2008. THUS, THE SAVING CLAUSE GIVEN IN PROVISO TO SECTION 40(A)(IA), THOUGH BROUGHT IN STATUTE BY THE FINANCE ACT, 2010 WILL APPLY RETROSPECTIVELY AS HELD BY THE HIGH COURTS. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE IS TREATED AS DISMISSED. 7 . 7 . IN THE RESULT, REVENUES APPEAL IS DISMISSED. 2 1 ST MAY 201 4 ORDER PRONOUNCED IN THE OPEN COURT ON 2 1 ST MAY 201 4 SD/ - SANJAY ARORA AC COUNTANT MEMBER SD/ - AMIT SHUKLA JUDICIAL MEMBER MUMBAI, DATED : 21 ST MAY 2014 STANDARD ENGINEERING WORKS 4 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / THE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT , MUMBAI / / 19997 98 2000 01 / / / / / / / / /