ITO ward -32(2), Kolkata, Kolkata V. M/S Sristi Television, Kolkata

ITA 1609/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87605 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 06-11-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY ACIT
• Section: 143(3); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE SHRI N. K. SAINI, AM & SHRI MAHAVIR SINGH, JM ] I.T.A NO. 1609 /KOL/201 2 ASSESSMENT YEAR : 200 6 - 0 7 INCOME - TAX OFFICER, WD - 32(2), KOLKATA. VS. M/S. SRISTI TELEVISION (PAN: ABAFS6229A) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 2 3 .01.2015 DATE OF PRONOUNCEMENT: 23 .01.2015 FOR THE APPELLANT: SHRI SANJAY, ACIT FOR THE RESPONDENT: SHRI SUNIL SURANA, FCA ORDER PER SHRI MAHAVIR SINGH, JM : THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF CIT (A) - X IX , KOLKATA IN APPEAL NO. 164/ CIT (A) - X/ITO,WD - 32(2)/KOL/11 - 12 DATED 3 1 . 0 7 .201 2 . ASSESSMENT W AS FRAMED BY ITO, WARD - 3 2( 2 ) , KOLKATA U/S. 143(3) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) FOR AY 200 6 - 0 7 VIDE HIS ORDER DATED 30 . 11 .20 11 . 2. THE FIRST ISSUE IN THIS APPEAL OF REVENUE IS AGAINST THE ORDER OF CIT (A) DELETING THE DISALLOWANCE OF EXPENSES ON ACCOUNT OF CARRIAGE FEES MADE BY AO FOR NON - DEDUCTION OF TDS U/S. 194C OF THE ACT CONSEQUENTLY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NOS. 1 AND 2: 1 ) THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) - XIX, KOLKATA ERRED IN DELETING THE ADDITION OF RS.30,99,79 0/ - ON ACCOUNT OF CARRIAGE FEES. 2 ) THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) - XIX, KOLKATA HAS CONSIDERED THAT THE AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE ACT, 2010 IS CURATIVE IN NATURE WHEREAS MEMORANDUM EXPLAINING THE PROVI SIONS IN THE FINANCE BILL 2010 & THE SPEECH OF THE FINANCE MINISTER CLEARLY INDICATES IT IS RETROSPECTIVE W.E.F. 1 ST APRIL, 2010. 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STATED THAT THIS ISSUE IS COVERED BY THE DECISION OF HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. VIRGIN CREATIONS IN ITAT NO.302 OF 2011, GA NO. 3200/2011 DATED 23.11.2011, WHEREIN EVEN AMENDMENT 2 ITA NO. 705 /K/201 4 SARITA KANODIA, AY 200 9 - 1 0 MADE BY THE FINANCE ACT 2010 IN SECTION 40(A)(IA) OF THE ACT IS HELD TO BE RETROSPECTIVE. HON BLE HIGH COURT HELD AS UNDER : WE HAVE HEARD MR. NIZAMUDDIN AND GONE THROUGH 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 HAVING RETROSPECTIVE OPERATION OR NOT. THE LEARNED TRIBUNAL ON FACT FOUND THAT THE ASSESSEE HAD DEDUCTED TAX AT SOURCHE FROM THE PAID CHARGES 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 POSITION WAS UNDISPUTED. MOREOVER, THE SUPREME COURT, AS HAS BEEN RECORDED BY THE LEARNED TRIBUNAL, IN THE CAS E OF ALLIED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTUSIONS LTD., HAS ALREADY DECIDED THAT THE AFORESAID PROVISION HAS RETROSPECTIVE APPLICATION. AGAIN, IN THE CASE REPORTED IN 82 ITR 570, THE SUPREME COURT HELD THAT THE PROVISION, WHICH HAS INSER TED THE REMEDY TO MAKE THE PROVISION WORKABLE, REQUIRES TO BE TREATED WITH 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 O THERWISE. HENCE WE DISMISS THE APPEAL WITHOUT ANY ORDER AS TO COSTS. 4 . WE FIND THAT THE ASSESSEE HAS DEBITED A SUM OF RS.6,54,268 / - AS CARRIAGE FEES PAID TO SIX DIFFERENT PARTIES AND THESE ARE IN THE NATURE OF SERVICE CHARGES LIABLE FOR TDS. ADMITTEDLY, THE ASSESSEE HAS DEDUCTED TDS AS RECORDED THIS FACT IN THE ASSESSMENT ORDER AND THE SAME WAS DEDUCTED IN THE MONTH OF MARCH BUT D EPOSITED BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME I.E. ON 10.04.2006 AND 12.04.2006. T HIS FACT IS RECORDED BY AO AT PAGE 2 OF THE ASSESSMENT ORDER IN TABULAR FORM AS UNDER: SL. NO. PARTICULAR OF HEAD UNDER WHICH TAX IS DEDUCTED AT SOURCE AMOUNT OF TAX DEDUCTED AT SOURCE DUE DATE FOR REMITTANCE TO GOVERNMENT ACCOUNT DETAILS OF PAYMENTS 1 2 3 4 5 6 . CONTRACT CONTRACT CONTRACT CONTRACT CONTRACT CONTRACT TOTAL RS. 2,405/ - RS. 3,973/ - RS. 4,287/ - RS. 3,973/ - RS. 39,815/ - RS. 8,783/ - RS. 63,236/ - 7/10/2005 7/11/2005 7/12/2005 7/01/2006 7/02/2006 7/03/2006 10/04/2006 10/04/2006 10/04/2006 10/04/2006 12/04/2006 12/04/2006 THE AO HAS DISALLOWED THE EXPENSES IN RESPECT TO THE ABOVE SIX PARTIES AT RS.30,99,790/ - AND QUA THIS ASSESSEE HAS ALREADY DEDUCTED TDS AND MADE PAYMENT AS NOTED ABOVE. THE AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 IS CURATIVE IN NATURE AND WILL APPLY FOR AND FROM AY 2005 - 06. THE RELEVANT ASSESSMENT YEAR INVOLVED IN THIS APPEAL IS AY 2006 - 07 AND HENCE, THE CIT(A) HAS RIGHTLY DELETED 3 ITA NO. 705 /K/201 4 SARITA KANODIA, AY 200 9 - 1 0 THE DISALLOWANCE AND WE CONFIRM THE SAME. THIS GROUND OF APPEAL OF REVENUE IS DISMISSED. 5 . THE NEXT ISSUE IN THIS APPEAL OF REVENUE IS AGAINST THE ORDER OF CIT(A) DELETING THE DISALLOWANCE OF SHOOTING CHARGES OF RS.54,800/ - . FOR THIS, REVENUE HAS RAISED FOLLOWING GROUND NOS. 3 AND 4: 3. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) - XIX, KOLKATA ERRED IN DELETING THE ADDITION OF RS.54,800/ - ON ACCOU NT OF SHOOTING CHARGES. 4. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THAT THE LD. CIT(A) - XIX, KOLKATA HAS NOT CONSIDERED THAT SECTION 40(A)(IA) OF THE INCOME TAX ACT CANNOT BE READ IN ISOLATION OR TO THE EXCLUSION OF SECTION 194C OF THE INCOME TAX AC T. 6. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE STATED THAT HE CONCEDES THIS ISSUE AND HENCE THE SAME IS ALLOWED IN FAVOUR OF REVENUE AND AGAINST THE ASSESSEE. THIS ISSUE OF REVENUE S APPEAL IS ALLOWED. 7 . IN THE RESULT, APPEAL OF REVENUE IS PARTLY ALLOWED. 8 . ORDER IS PRONOUNCED IN THE OPEN COURT . S D / - S D / - ( N. K. SAINI ) (MAHAVIR SINGH) ACCOUNTANT MEMBER J UDICIAL MEMBER DATED : 23RD JANUARY , 201 5 JD.(SR.P.S.) - COPY OF THE ORDER FORWARDED TO: 1 . / A PPELLANT ITO, WARD - 32(2), KOLKATA. . 2 / RESPONDENT M/S. SRISTI TELEVISION, 17, PARK LANE, KOLKATA - 700 016. 3 . ( )/ THE CIT (A), KOLKATA 4. 5. / CIT KOLKATA / DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, / BY ORDER, /ASSTT. REGISTRAR .