ITO, CHENNAI V. M/s. Susira Engineering Industries Pvt. Ltd., CHENNAI

ITA 1594/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64486 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: P G SADGURU DAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ------- ITA NO. 1594/MDS/2012 ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, COMPANY WARD-IV(1), CHENNAI. V. M/S. SUSIRA ENGINEERING INDUSTRIES PVT. LTD., NO. G-16, AMBATTUR INDUSTRIAL ESTATE, AMBATTUR, CHENNAI-600 058. (PAN : AAACS7730C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.E.B. RENGARAJAN, JR. STANDING COUNSEL RESPONDENT BY : SHRI P. G. SADGURU DAS, CA DATE OF HEARING : 17.10.2012 DATE OF PRONOUNCEMENT : 30.10.2012 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE ITA NO.1594 /MDS /2012 2 CIT(APPEALS)-V, CHENNAI DATED 31-05-2012 FOR THE AS SESSMENT YEAR 2009-10. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN A UTOMOBILE MANUFACTURING COMPANY. THE ASSESSEE HAD FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 30-09-200 9 ADMITTING TOTAL LOSS OF ` 18,77,720/- WHEREIN THE ASSESSEE HAD ALSO CLAIMED AN EXPENDITURE OF ` 76,15,384/- AS LABOUR CHARGES PAID UNDER THE HEAD MANUFACTURING & FACTORY OVERHE ADS. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE TDS DEDUCTED AND PAID TO THE GOVERNMENT ACCOUNT FOR THE ABOVE EXPENDITURE. THE ASSESSEE PRODUCED COPY OF THE LED GER COPY OF LABOUR CHARGES PAID AND DETAILS OF TDS PAID. AS PER THE LEDGER COPY THE ASSESSEE COMPANY HAS DEDUCTED TDS O F ` 2,22,259/- AND PAID THE SAME TO THE GOVERNMENT OF A CCOUNT ON 22-09-2009. THE ASSESSING OFFICER AFTER CONSIDE RING THE ABOVE DETAILS OBSERVED THAT DURING THE YEAR THE ASS ESSEE HAD PAID LABOUR CHARGES OF ` 74,52,030/- UPTO FEBRUARY, 2009 AND IT SHOULD HAVE REMITTED THE TDS TO THE GOVERNMENT A CCOUNT BEFORE 31.03.2009. THE SAME HAS NOT BEEN REMITTED BY THAT DATE AND HENCE THE AMOUNT OF ` 74,52,030/- WAS DISALLOWED ITA NO.1594 /MDS /2012 3 U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (('THE AC T' FOR SHORT). 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(APPEALS). IT WAS SUBMITTED BEFORE THE LEARNED CIT(APPEALS) THAT AS PER THE AMENDMENT BROUGHT TO S ECTION 40(A)(IA) BY THE FINANCE ACT 2010 IT APPLIES RETROS PECTIVELY AND IF THE ASSESSEE PAID THE TDS DEDUCTED TO THE GOVERN MENT ACCOUNT BEFORE THE DUE DATE OF FILING THE RETURN, N O DISALLOWED IS TO BE MADE U/S 40(A)(IA) OF THE ACT. THE LEARNE D CIT(APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF T HE ASSESSEE HAS OBSERVED THAT THE ASSESSEE HAS DEDUCTED TDS DUR ING THE FINANCIAL YEAR AND REMITTED THE SAME TO THE GOVERNM ENT ACCOUNT BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME. THEREFORE, THE ASSESSEE HAS COMPLIED WITH THE PROVI SIONS OF SECTION 40(A)(IA) OF THE ACT. THE AMENDMENT BY THE FINANCE ACT, 2010 IS ONLY REMEDIAL AND CURATIVE IN NATURE A ND THE SAID PROVISIONS ARE TO BE APPLIED EVEN TO THE EARLIER AS SESSMENT YEARS. WITH THE ABOVE OBSERVATION, THE LEARNED CIT (APPEALS) ALLOWED THE APPEAL FILED BY THE ASSESSEE. 4. ON BEING AGGRIEVED, THE REVENUE CARRIED THE MATT ER BEFORE THE TRIBUNAL. BOTH THE PARTIES AGREED THAT T HE ISSUE IS ITA NO.1594 /MDS /2012 4 COVERED BY THE DECISION OF THE HONBLE CALCUTTA HIG H COURT IN THE CASE OF CIT V. VIRGIN CREATIONS BY ORDER DATED 23-11-2011. 5. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSEE HAD FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 30-09-2009 DECLARING LOSS OF ` 18,77,720/-. THE ASSESSEE DEDUCTED TDS AND PAID TO THE GOVERNMEN T ACCOUNT ON 22-09-2009, I.E. BEFORE THE DUE DATE OF FILING OF THE RETURN. AS PER THE AMENDMENT BY THE FINANCE ACT, 2 010 W.E.F. 1.4.2010 IF THE ASSESSEE DEDUCTED THE TDS AND PAID TO THE GOVERNMENT ACCOUNT BEFORE THE DUE DATE OF FILING OF THE RETURN, NO DISALLOWANCE CAN BE MADE U/S 40(A)(IA) O F THE ACT. WHETHER THE ABOVE AMENDMENT IS RETROSPECTIVE OR PRO SPECTIVE IS THE ISSUE. IN THIS CONTEXT THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. VIRGIN CREATIONS (SUPRA) HAS HEL D THAT THE ABOVE AMENDMENT IS RETROSPECTIVE IN OPERATION. IN VIEW OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT, WE FIN D NO INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(AP PEALS). THE ORDER OF THE LEARNED CIT(APPEALS) IS ACCORDINGLY CO NFIRMED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ITA NO.1594 /MDS /2012 5 ORDER PRONOUNCED ON TUESDAY, THE 30 TH OF OCTOBER, 2012, AT CHENNAI. SD/- SD/- (N. S. SAINI) ( V.DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 30 TH OCTOBER, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE