ITO, Pune V. Shri Prashant Waman Khule, Pune

ITA 1685/PUN/2012

• Counselvise Citation: 168524514 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 14-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GARIMA C HOUDHARY
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1685/PN/2012 (ASSESSMENT YEAR : 2008-09) INCOME TAX OFFICER, WARD 9(2), PUNE. . APPELLANT VS. SHRI PRASHANT WAMAN KHULE, MANIK COLONY, CHINCHWAD, PUNE 411 033. PAN : ABJPK9471H . RESPONDENT DEPARTMENT BY : SMT. GARIMA CHOUDHARY ASSESSEE BY : SHRI NIKHIL PATHAK & SHRI SUHAS BORA DATE OF HEARING : 30-12-2013 DATE OF PRONOUNCEMENT : 31-12-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 24.05.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 29.11.2010 PAS SED BY THE ASSESSING OFFICER, U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. IN THIS APPEAL, THE ONLY GRIEVANCE OF THE REVENU E AGAINST THE ACTION OF THE CIT(A) IN DELETING THE DISALLOWANCE OF RS.75,35 ,189/- WHICH WAS MADE BY THE ASSESSING OFFICER BY INVOKING SECTION 40(A)(IA) OF THE ACT. 3. IN BRIEF, THE RELEVANT FACTS ARE THAT THE ASSESS ING OFFICER NOTICED THAT FOR VARIOUS EXPENSES FOR THE PERIOD OF APRIL 2007 TO FE BRUARY, 2008 INCURRED ON ACCOUNT OF TRANSPORTATION CHARGES AND LABOUR CHARGE S, THE TAX DEDUCTED AT SOURCE (I.E. TDS) WAS NOT PAID BEFORE THE END OF TH E PREVIOUS YEAR I.E. ITA NO. 1685/PN/2012 A.Y. 2008-09 31.03.2008 BUT SUCH TAX WAS DEPOSITED ON 29.09.2008 . ACCORDINGLY, THE CORRESPONDING EXPENDITURE OF RS.75,35,189/- ON ACCO UNT OF TRANSPORTATION CHARGES AND LABOUR CHARGES WAS DISALLOWED BY INVOKI NG SECTION 40(A)(IA) OF THE ACT. 4. IN APPEAL BEFORE THE CIT(A), ASSESSEE POINTED OU T THAT THE TAX WAS DEDUCTED AT SOURCE IN THE MONTH OF MARCH, 2008 AND IT WAS DEPOSITED IN THE STATE-EXCHEQUER BEFORE THE DUE DATE OF FILING OF RE TURN OF INCOME PRESCRIBED U/S 139(1) OF THE ACT AND THEREFORE, NO DISALLOWANCE WA S REQUIRED TO BE MADE U/S 40(A)(IA) OF THE ACT. THE CIT(A) HAS DELETED THE D ISALLOWANCE BY CONSIDERING THE AFORESAID PLEA OF THE ASSESSEE AND RELYING UPON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF BAPUSAH EB NANSAHEB DHUMAL VS. ACIT, (2010) 43 DTR 374 (MUM). AGAINST THE AFO RESAID, REVENUE IS IN APPEAL BEFORE US. 5. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE APPEARING FOR THE REVENUE HAS REITERATED THE STAND OF THE ASSESSING O FFICER WHICH WE HAVE ALREADY NOTED IN EARLIER PARAGRAPHS AND IS NOT BEIN G REPEATED FOR THE SAKE OF BREVITY. 6. ON THE OTHER HAND, LEARNED REPRESENTATIVE FOR TH E RESPONDENT- ASSESSEE POINTED OUT THAT IN THE LIGHT OF THE AMEND MENT OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 W.R.E.F. 01.04.200 5, THE IMPUGNED DISALLOWANCE HAS BEEN RIGHTLY DELETED BY THE CIT(A) . IN SUPPORT, THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF AC IT, CIR. 9, PUNE VS. H.A. DEVELOPERS, ITA NO. 373/PN/2009 DATED 27.04.2012 HA S BEEN RELIED UPON. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. OSTENSIBLY, THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT HAVE BEE N INVOKED BY THE ASSESSING OFFICER WITH RESPECT TO EXPENDITURE INCURRED DURING THE PERIOD APRIL, 2007 TO ITA NO. 1685/PN/2012 A.Y. 2008-09 FEBRUARY, 2008 ON WHICH THE TAX WAS DEDUCTED AT SOU RCE BY THE ASSESSEE IN THE MONTH OF MARCH, 2008 AND DEPOSITED WITH THE STA TE-EXCHEQUER ON 29.09.2008 I.E. BEFORE THE DUE DATE OF FILING OF RE TURN OF INCOME PRESCRIBED IN SECTION 139(1) OF THE ACT. CONSIDERING THE AMENDME NT MADE IN SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 W.R.E .F. 01.04.2005 IT IS EVIDENT THAT ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING P REVIOUS YEAR RELEVANT TO AND FROM THE ASSESSMENT YEAR 2005-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME P RESCRIBED U/S 139(1) OF THE ACT. IF THE PAYMENT WAS SO MADE, THEN THE AFORESAI D DISALLOWANCE CANNOT BE MADE U/S 40(A)(IA) OF THE ACT. THE HONBLE CALCUTT A HIGH COURT IN THE CASE OF CIT VS. VIRGIN CREATIONS IN ITAT NO. 302 OF 2011 GA 3200 OF 2011 DATED 23.11.2011 HAS CONSIDERED AN IDENTICAL CONTROVERSY AND HELD THAT AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT B Y THE FINANCE ACT, 2010 IS RETROSPECTIVE FROM 01.04.2005. CONSIDERED IN THE A FORESAID LIGHT, IN THE PRESENT CASE, ASSESSEE HAS DEPOSITED THE TAX DEDUCT ED AT SOURCE ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME PRES CRIBED U/S 139(1) OF THE ACT, AND THEREFORE WE HOLD THAT THE CIT(A) WAS JUSTIFIED IN SETTING-ASIDE THE DISALLOWANCE OF CORRESPONDING EXPENDITURE MADE BY T HE ASSESSING OFFICER U/S 40(A)(IA) OF THE ACT. THE ORDER OF THE CIT(A) IS H EREBY AFFIRMED HAVING REGARD TO THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN T HE CASE OF VIRGIN CREATIONS (SUPRA) WHICH HAS BEEN FOLLOWED AND APPLIED BY THE PUNE BENCH OF THE TRIBUNAL UNDER SIMILAR CIRCUMSTANCES IN THE CASE H. A. DEVELOPERS (SUPRA). 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 31 ST DECEMBER, 2013 ITA NO. 1685/PN/2012 A.Y. 2008-09 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE