DCIT, V. M/s Shankuntala Agarbhathi Company,

ITA 1699/BANG/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7047 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 06-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DHIVAHAR JT
• Assessee Lawyers: H R SUDHEENDRA
• Keywords: Retrospective amendment; Tax effect
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER ITA NO.1699/BANG/2013 ASSESSMENT YEAR : 2009- 10 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1), BANGALORE. VS. M/S. SHAKUNTALA AGARBATHI COMPANY, NO.123, I MAIN ROAD, 7 TH CROSS, CHAMARAJPET, BANGALORE 560 018. PAN : AAOFS 8230 J APPELLANT RESPONDENT APPELLANT BY : SHRI P. DHIVAHAR, JT. CIT(DR) RESPONDENT BY : SHRI H.R. SUDHEENDRA, FCA DATE OF HEARING : 08.10.2014 DATE OF PRONOUNCEMENT : 10.10.2014 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER DA TED 2.9.2013 OF THE CIT(APPEALS)-II, BANGALORE RELATING TO ASSESSME NT YEAR 2009-10. 2. GROUND NO.1 RAISED BY THE REVENUE IS GENERAL IN NATURE. ITA NO.1699/BANG/2013 PAGE 2 OF 17 3. GROUNDS NO.2 & 3 RAISED BY THE ASSESSEE IS WITH REGARD TO THE DISALLOWANCE MADE BY THE AO INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. THE MATERIAL FACTS IN THIS REGARD ARE THE ASSESSEE MADE PAYMENTS TO 11 PARTIES AGGREGATING A SUM OF RS.12,62,951/- O N WHICH THE ASSESSEE WAS REQUIRED TO DEDUCT TAX AT SOURCE UNDER THE PROV ISIONS OF CHAPTER-XVII- B OF THE ACT. THE ASSESSEE HAD MADE THE AFORESAID PAYMENTS ON VARIOUS DATES DURING THE PREVIOUS YEAR BUT HAD DEDUCTED TAX AT SOURCE FROM SUCH PAYMENTS IN THE MONTH OF MARCH,2009. THE FOLLOWING ARE THE DETAILS GIVEN IN THE ORDER OF ASSESSMENT:- S. NO. NAME OF THE RECIPIENT DATE OF PAYMENT AMOUNT PAID RS. DATE OF REMITTANCE OF TDS 1 M/S. ADVENTURE 01.01.2009 & 25.02.2009 35,759 06.04.2009 2 M/S. GHATGE PATIL TRANSPORT CO. 31.01.2009 & 28.02.2009 16,255 06.04.2009 3 M/S. SRINATH ROADWAYS 27.01.2009 15,500 06.04.2009 4 MS. TRANSPORT CORPORATION OF INDIA 31.01.2009 & 28.02.2009 78,337 06.04.2009 5 M/S BALAGI MARILINE PVT. LTD. 31.01.2009 & 28.02.2009 68,376 06.04.2009 6 M/S. BLUE DART 31.01.2009 & 28.02.2009 23,466 06.04.2009 7 M/S. CALCUTTA SUGANDHI DHUP FACTORY 31.01.2009 & 28.02.2009 8,20,155 06.04.2009 8 M/S. H C KHINCHA & CO. 05.02.2009 14,054 06.04.2009 9 PUNCHWEL PACKERS 31.01.2009 & 28.02.2009 69,154 06.04.2009 10 VINAYAKAR ROADLINES 31.01.2009 & 28.02.2009 97,400 06.04.2009 11 VIJAYANANDA ROADLINES 31.01.2009 & 28.02.2009 24,495 06.04.2009 TOTAL 12,62,951 ITA NO.1699/BANG/2013 PAGE 3 OF 17 4. ACCORDING TO THE AO, AS PER THE PROVISIONS OF SE CTION 194C/194H/194J OF THE ACT, UNDER THE ASSESSEE WAS O BLIGED TO DEDUCT TAX AT SOURCE ON PAYMENT MADE, THE DEDUCTION OF TAX AT SOURCE OUGHT TO HAVE BEEN MADE AT THE TIME OF PAYMENT OR AT THE TIME OF CREDIT OF SUCH INCOME IN THE BOOKS OF ACCOUNTS OF THE PERSON LIABLE TO PAY S UCH INCOME, WHICHEVER IS EARLIER. ACCORDING TO THE AO, THE ASSESSEE POSTPON ED THE TIME OF DEDUCTION OF TAX AT SOURCE TILL THE MONTH OF MARCH, 2009 AND REMITTED THE AMOUNT TO THE CREDIT OF THE GOVERNMENT ON 6.4.2009. THE AO REFERRED TO THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT APPLICAB LE TO THE RELEVANT AY, WHICH READS THUS: 40. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTIONS 30 TO 38, THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTED THE INCOME CHARGEABLE UNDER THE HEAD `PROFITS AND GAINS OF BUSINESS OR PROFESSION. (IA) ANY INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES PAYABLE TO A RESIDENT, OR AMOUNT S PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN PAID,- (A) IN A CASE WHERE THE TAX WAS DEDUCTIBLE AND WA S SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR, ON OR BEFORE THE DUE DATE SPECIFIED IN SUB- SECTION (1) OF SECTION 139 ; OR (B) IN ANY OTHER CASE, ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR. ITA NO.1699/BANG/2013 PAGE 4 OF 17 PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR, OR HAS BEEN DEDUCTED- (A) DURING THE LAST MONTH OF THE PREVIOUS YEAR BUT PAID AFTER THE SAID DUE DATE ; OR (B) DURING ANY OTHER MONTH OF THE PREVIOUS YEA R BUT PAID AFTER THE END OF THE SAID PREVIOUS YEAR, SUCH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. 5. ACCORDING TO THE AO, THE BENEFIT OF PAYING THE T AX DEDUCTED AT SOURCE ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT, AS LAID DOWN IN CLAUSE(A) ABOVE CAN BE AVAILED ONLY IF THE TAX DEDUCTIBLE RELATED TO PAYMENTS MADE IN THE MONTH OF MARCH, 2009. SINCE THE PAYMENTS MADE BY THE ASSESSEE IN THE PRESENT CA SE WERE IN THE MONTHS EARLIER TO MARCH, 2009, THE ASSESSEE OUGHT N OT TO HAVE POSTPONED THE TIME OF DEDUCTION OF TAX AT SOURCE TO THE MONTH OF MARCH, 2009 AND PAID THE TAX DEDUCTED AT SOURCE ON 6.4.2009 AND CLAIMED THE BENEFIT OF CLAUSE (A) ABOVE. ACCORDING TO THE AO THE ASSESSEE OUGHT TO HAVE DEDUCTED TAX AT SOURCE EVEN PRIOR TO THE MONTH OF MARCH, 2009 AN D THEREFORE THE TAX DEDUCTED AT SOURCE OUGHT TO HAVE PAID TO THE CREDIT OF THE CENTRAL GOVERNMENT ON OR BEFORE 31.3.2009 AS LAID DOWN IN C LAUSE (B) ABOVE. ON THE ABOVE REASONING THE AO DISALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF A SUM OF RS.12,62,951 INVOKING THE PRO VISIONS OF SEC.40(A)(IA) OF THE ACT. ITA NO.1699/BANG/2013 PAGE 5 OF 17 6. ON APPEAL BY THE ASSESSEE, THE CIT(A) DELETED THE ADDITION MADE BY THE AO, FOLLOWING THE ORDER OF CIT(A) ON AN IDEN TICAL ADDITION IN ASSESSEES CASE FOR AY 08-09 IN ITANO.332/AC-3(1)/C IT(A)-II/10-11 DATED 15.3.2001 WHEREIN FOLLOWING DECISION OF ITAT, AHMED ABAD BENCH IN ITA NO.2121/AHMD/2008 FOR AY 05-06 IN THE CASE OF SHRI KULWANT SINGH VS. ITO, WHEREIN IT WAS HELD THAT IF TAX DEDUCTED AT SOURCE IS PAID ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCO ME U/S.139(1) OF THE ACT NO DISALLOWANCE CAN BE MADE U/S.40(A)(IA) OF THE ACT. THE TRIBUNAL IN THE AFORESAID CASE TOOK THE VIEW THAT AMENDMENT TO PROV ISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 2010 WILL OPERATE RETROSPECTIVELY W.E.F. 1.4.2005, WHEREBY IT WAS LAID DOWN THAT TAX DEDUCTED AT SOURCE, IF IT IS PAID ON OR BEFORE THE DUE DATE FOR FILING OF RET URN OF INCOME, THEN NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT CAN BE MADE. 7. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS), THE REVENUE HAS RAISED THE GROUNDS NO. 2 & 3 BEFORE THE TRIBUNAL. 8. AT THE TIME OF HEARING OF THE APPEAL IT WAS BROU GHT TO OUR NOTICE THAT THE TAX EFFECT IN THE APPEAL FILED BY THE REVENUE I S LESS THAN RS.4 LACS AND THEREFORE AS PER CBDT INSTRUCTION NO. 5 OF 2014 DAT ED 10.7.2014 THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. T HIS APPEAL WAS FILED BY THE REVENUE BEFORE THE TRIBUNAL ON 6.12.2013 MUCH B EFORE THE AFORESAID INSTRUCTIONS OF THE CBDT. THEREFORE THE QUESTION I S WHETHER THE AFORESAID INSTRUCTIONS WILL BE APPLICABLE TO THE PRESENT APPE AL FILED BY THE REVENUE. ITA NO.1699/BANG/2013 PAGE 6 OF 17 IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSE E DREW OUR ATTENTION TO THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. RANKA AND RANKA 352 ITR 121(KARN) WHEREIN IT WAS HELD THAT THE INSTRUCTION OF CBDT REVISING MONETARY LIMITS FROM T IME TO TIME FOR FILING APPEALS BY REVENUE WILL APPLY TO ALL PENDING APPEAL S AND IF PENDING DISPOSAL OF APPEAL OF REVENUE MONETARY APPEALS ARE REVISED THAN THE REVISED MONETARY LIMIT WILL HAVE TO BE APPLIED TO S EE THE MAINTAINABILITY OF SUCH APPEALS. THE FOLLOWING WERE THE RELEVANT OBSE RVATIONS OF THE HONBLE HIGH COURT: THE GOVERNMENT HAS FORMULATED THE NATIONAL LITIGAT ION POLICY WITH A VIEW TO ENSURE CONDUCT OF RESPONSIBLE LITIGA TION BY THE CENTRAL GOVERNMENT AND URGES EVERY STATE GOVERNMENT TO EVOLVE SIMILAR POLICIES. ITS AIM IS TO TRANSFORM GOVERNMEN T INTO AN EFFICIENT AND RESPONSIBLE LITIGANT. THE PURPOSE UND ERLYING THIS POLICY IS ALSO TO REDUCE GOVERNMENT LITIGATION IN C OURTS SO THAT VALUABLE COURT TIME WOULD BE SPENT IN RESOLVING OTH ER PENDING CASES, SO AS TO ACHIEVE THE GOAL IN THE NATIONAL LE GAL MISSION TO REDUCE AVERAGE PENDENCY TIME FROM 15 YEARS TO 3 YEA RS. INSTRUCTION NO. 3/2011 IS ISSUED SUBSEQUENT TO THE AFORESAID NATIONAL LITIGATION POLICY. A PERUSAL OF THE AFORES AID POLICY MAKES IT CLEAR THAT THOUGH THE SAID INSTRUCTION WAS ISSUED AS A MEASURE FOR REDUCING LITIGATION, IT WAS ISSUED IN S UPERSESSION OF THE EARLIER INSTRUCTION ENHANCING THE MONETARY LIMI TS AND PRESCRIBING CERTAIN CONDITIONS. IN THE INSTANT CASE , THE INSTRUCTION NO. 3/2011 IS MORE BENEFICIAL THAN INSTRUCTION NO. 2/2005. IF INSTRUCTION NO. 3/2011 IS ALSO MADE APPLICABLE TO T HE PENDING APPEALS BEFORE THE HIGH COURT, IT WOULD GRANT RELIE F TO THE ASSESSEE. APART FROM GRANTING RELIEF TO THE ASSESSE E, IF NUMBER OF APPEALS PENDING BEFORE THE HIGH COURT ARE DISPOSED OF ON THE BASIS OF THE SAID CIRCULAR, THE PRECIOUS TIME WHICH WOULD BE SAVED BY THE HIGH COURT COULD BE BETTER UTILIZED FOR DECI DING DISPUTES WHERE TAX EFFECT IS ENORMOUS. THAT APART, THE DURAT ION, AN APPEAL TAKES IN THE HIGH COURT WOULD BE REDUCED AS DESIRED BY THE NATIONAL LITIGATION POLICY. THE OBJECT SOUGHT TO BE ACHIEVED BY ITA NO.1699/BANG/2013 PAGE 7 OF 17 SUCH CIRCULARS/INSTRUCTIONS AND ALSO THE LAW DECLAR ED BY THE APEX COURT, THE NATIONAL LITIGATION POLICY 2011 AS WELL AS THE VARIOUS SCHEMES INTRODUCED BY THE DEPARTMENT GRANTING RELIE F TO PERSONS WHO HAVE NOT EVEN FILED RETURNS AND PAID TAXES, ARE KEPT IN MIND, TO BRING THE CIRCULAR/INSTRUCTION IN HARMONY WITH T HE NATIONAL LITIGATION POLICY, IT WOULD BE APPROPRIATE TO HOLD THAT THE BENEFIT OF SUCH CIRCULAR/INSTRUCTION ALSO APPLIES TO THE PE NDING CASES IN APPEAL IN VARIOUS COURTS AND TRIBUNALS ON THE DATE OF THE CIRCULAR/INSTRUCTION. THEREFORE, THE INSTRUCTION NO . 3/2011 IS ALSO APPLICABLE TO THE PENDING APPEALS AND AS THE TAX EF FECT IN THE INSTANT CASE IS LESS THAN RS.10 LAKHS, THE APPEAL S TANDS DISMISSED ON THE GROUND OF MONETARY LIMIT, WITHOUT EXPRESSING ANY OPINION ON THE MERITS OF THE CLAIM. 9. IN OUR VIEW THE ABOVE OBSERVATIONS OF THE HONBL E HIGH COURT WILL SQUARELY APPLY TO THE PRESENT CASE. ADMITTEDLY, TH E TAX EFFECT IN THIS APPEAL BY THE REVENUE IS LESS THAN RS.4 LACS AND THEREFORE AS PER CBDT INSTRUCTION NO.5 OF 2014 DATED 10.7.2014, THIS APPE AL BY THE REVENUE HAS TO BE DISMISSED AS NOT MAINTAINABLE. 10. BESIDES THE ABOVE, WE ALSO FIND THAT THIS TRIB UNAL IN THE CASE OF SRI SANTOSH KUMAR SHETTY IN ITA NO.1194/BANG/2012 BY ORDER DATED 26.7.2013 , HAS TAKEN A VIEW THAT AMENDMENT TO PROVISIONS OF SECTION 40(A)(IA) OF THE ACT BY THE FINANCE ACT, 20 10 WILL OPERATE RETROSPECTIVELY W.E.F. 1.4.2005. AS PER THE AFORES AID AMENDMENT, TAX DEDUCTED AT SOURCE, IF IT IS PAID ON OR BEFORE THE DUE DATE FOR FILING OF RETURN OF INCOME, THEN NO DISALLOWANCE U/S. 40(A)(IA) OF T HE ACT CAN BE MADE. FOR THE SAKE OF READY REFERENCE, WE REPRODUCE BELOW THE DECISION RENDERED ON A SIMILAR ISSUE IN THE CASE OF SRI SANTOSH KUMAR SHETTY (SUPRA) :- ITA NO.1699/BANG/2013 PAGE 8 OF 17 9. THE LEGISLATIVE HISTORY OF THE PROVISIONS OF SE C.40(A)(IA) OF THE ACT IS AS FOLLOWS: SECTION 40 HAS CERTAIN CLAUS ES PROVIDING FOR THE AMOUNTS WHICH ARE NOT DEDUCTIBLE. SUB-CLAUSE (I A) OF CLAUSE (A) OF SECTION 40 WAS INSERTED BY THE FINANCE (NO.2 ) ACT, 2004 WITH EFFECT FROM 1ST APRIL, 2005 READING AS UNDER:- 40. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTIONS 30 TO 38, THE FOLLOWING AMOUNTS SHALL NOT BE DEDUCTED IN COMPUTED THE INCOME CHARGEABLE UNDER THE HEAD `PROFITS AND GAINS OF BUSINESS OR PROFESSION. .. (IA) ANY INTEREST, COMMISSION OR BROKERAGE, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB- CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON OR, AFTER DEDUCTION, HAS NOT BEEN PAID DURING THE PREVIOUS YEAR, OR IN THE SUBSEQUENT YEAR BEFORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200 : PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR OR, HAS BEEN DEDUCTED IN THE PREVIOUS YEAR BUT PAID IN ANY SUBSEQUENT YEAR AFTER THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 200, SUCH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. EXPLANATION. FOR THE PURPOSES OF THIS SUB-CLAUSE, - (I)COMMISSION OR BROKERAGE SHALL HAVE THE SAME MEANING AS IN CLAUSE (I) OF THE EXPLANATION TO SECTION 194H; ITA NO.1699/BANG/2013 PAGE 9 OF 17 (II)FEES FOR TECHNICAL SERVICES SHALL HAVE THE SA ME MEANING AS IN EXPLANATION 2 TO CLAUSE (VII) OF SUB- SECTION (1) OF SECTION 9; (III)PROFESSIONAL SERVICES SHALL HAVE THE SAME MEANING AS IN CLAUSE (A) OF THE EXPLANATION TO SECTION 194J; (IV)WORK SHALL HAVE THE SAME MEANING AS IN EXPLANATION III TO SECTION 194C; 10. THE MEMORANDUM EXPLAINING THE PROVISIONS IN TH E FINANCE BILL EXPLAINED THE RATIONALE OF THE INSERTI ON OF THE NEW PROVISION IN FOLLOWING WORDS :- WITH A VIEW TO AUGMENT COMPLIANCE OF TDS PROVISIONS, IT IS PROPOSED TO EXTEND THE PROVISIONS OF SECTION 40(A)(I) TO PAYMENTS OF INTEREST, COMMISSIO N OR BROKERAGE, FEES FOR PROFESSIONAL SERVICES OR FEE S FOR TECHNICAL SERVICES TO RESIDENTS, AND PAYMENTS T O A RESIDENT CONTRACTOR OR SUB-CONTRACTOR FOR CARRYIN G OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX HAS NOT BEEN DEDUCTED OR AFTER DEDUCTION, HAS NOT BEEN PAID BEFORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB- SECTION (1) OF SECTION 200 AND IN ACCORDANCE WITH THE OTHER PROVISIONS OF CHAPTER XVII-B. IT IS ALSO PROPOSED TO PROVIDE THAT WHERE IN RESPECT OF PAYMENT OF ANY SUM, TAX HAS BEEN DEDUCTED UNDER CHAPTER XVII-B OR PAID IN ANY SUBSEQUENT YEAR, THE SUM OF PAYMENT SHALL BE ALLOWED IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. THE PROPOSED AMENDMENT WILL TAKE EFFECT FROM 1ST DAY OF APRIL, 2005 AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSMENT YEAR 2005- 2006 AND SUBSEQUENT YEARS. [CLAUSE 11] 11. THEREAFTER THE FINANCE ACT, 2008 MADE AMENDMENT TO CLAUSE (A) IN SUB-CLAUSE (IA) IN SECTION 40 WITH RE TROSPECTIVE EFFECT FROM 1ST APRIL, 2005. THE SECTION AS AMENDED BY THE FINANCE ACT, 2008 READ AS UNDER:- ITA NO.1699/BANG/2013 PAGE 10 OF 17 (IA) ANY INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES PAYABLE TO A RESIDENT, OR AMOUNT S PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN PAID,- (A) IN A CASE WHERE THE TAX WAS DEDUCTIBLE AND WA S SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR, ON OR BEFORE THE DUE DATE SPECIFIED IN SUB- SECTION (1) OF SECTION 139 ; OR (B) IN ANY OTHER CASE, ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR. PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR, OR HAS BEEN DEDUCTED- (A) DURING THE LAST MONTH OF THE PREVIOUS YEAR BUT PAID AFTER THE SAID DUE DATE ; OR (B) DURING ANY OTHER MONTH OF THE PREVIOUS YEA R BUT PAID AFTER THE END OF THE SAID PREVIOUS YEAR, SUCH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. ; 12. THE FINANCE ACT, 2008 BROUGHT OUT AMENDMENT TO SECTION 40(A)(IA) W.R.E.F. 1.4.2005 BY RELAXING EARLIER POS ITION TO SOME EXTENT. IT MADE TWO CATEGORIES OF DEFAULTS CAUSING DISALLOWANCE ON THE BASIS OF THE PERIOD OF THE PREVIOUS YEAR IN WHICH TAX WAS DEDUCTIBLE. THE FIRST CATEGORY OF DISALLOWANCES INC LUDED THE CASES IN WHICH TAX WAS DEDUCTIBLE AND WAS SO DEDUCTED DUR ING THE LAST MONTH OF THE PREVIOUS YEAR BUT THERE WAS FAILURE TO PAY SUCH TAX ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 OF THE ACT. IN OTHER WORDS, IF ANY AMOUNT ON WH ICH TAX WAS DEDUCTIBLE DURING LAST MONTH OF THE PREVIOUS YEAR, THAT IS MARCH 2005, BUT WAS PAID BEFORE 31ST OCTOBER, 2005, BEING THE DUE DATE U/S 139(1), THE DEDUCTIBILITY OF THE AMOUNT WAS KEP T INTACT. THE SECOND CATEGORY INCLUDED CASES OTHER THAN THOSE GIV EN IN CATEGORY ITA NO.1699/BANG/2013 PAGE 11 OF 17 FIRST. TO PUT IT SIMPLY, IF TAX WAS DEDUCTIBLE AND WAS SO DEDUCTED DURING THE FIRST ELEVEN MONTHS OF THE PREVIOUS YEAR , THAT IS, UP TO FEBRUARY, 2005, THE DISALLOWANCE WAS TO BE MADE IF THE ASSESSEE FAILED TO PAY IT BEFORE 31ST MARCH, 2005. 13. THEN CAME THE AMENDMENT TO SECTION 40(A)(IA) B Y THE FINANCE ACT, 2010 WITH RETROSPECTIVE EFFECT FROM 1S T APRIL, 2010. THE PROVISION SO AMENDED, NOW READS AS UNDER :- (IA) ANY INTEREST, COMMISSION OR BROKERAGE, RENT, ROYALTY, FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICES PAYABLE TO A RESIDENT, OR AMOUNT S PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER CHAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED OR; AFTER DEDUCTION, HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 13 9. PROVIDED THAT WHERE IN RESPECT OF ANY SUCH SUM, TAX HAS BEEN DEDUCTED IN ANY SUBSEQUENT YEAR, OR HAS BEEN DEDUCTED DURING THE PREVIOUS YEAR BUT PAID AFTER THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139, SUCH SUM SHALL BE ALLOWED AS A DEDUCTION IN COMPUTING THE INCOME OF THE PREVIOUS YEAR IN WHICH SUCH TAX HAS BEEN PAID. 14. FROM THE ABOVE PROVISION AS AMENDED BY THE FINA NCE ACT, 2010 WITH RETROSPECTIVE EFFECT FROM 1ST APRIL, 2010 IT CAN BE SEEN THAT THE ONLY DIFFERENCE WHICH THIS AMENDMENT HAS M ADE IS DISPENSING WITH THE EARLIER TWO CATEGORIES OF DEFAU LTS AS PER THE FINANCE ACT, 2008, AS DISCUSSED IN THE EARLIER PARA , CAUSING DISALLOWANCE ON THE BASIS OF THE PERIOD OF THE PREV IOUS YEAR DURING WHICH TAX WAS DEDUCTIBLE. THE FIRST CATEGORY OF DISALLOWANCES INCLUDED THE CASES IN WHICH TAX WAS D EDUCTIBLE AND WAS SO DEDUCTED DURING THE LAST MONTH OF THE PREVIO US YEAR BUT THERE WAS FAILURE TO PAY SUCH TAX ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139. THE FI NANCE ACT, 2010 HAS NOT TINKERED WITH THIS POSITION. THE SECON D CATEGORY OF THE FINANCE ACT, 2008 WHICH REQUIRED THE DEPOSIT OF TAX BEFORE THE CLOSE OF THE PREVIOUS YEAR IN CASE OF DEDUCTION DURING THE FIRST ELEVEN MONTHS, AS A PRE-CONDITION FOR THE GRANT OF DEDUCTION IN ITA NO.1699/BANG/2013 PAGE 12 OF 17 THE YEAR OF INCURRING EXPENDITURE, HAS BEEN ALTERED . THE HITHERTO REQUIREMENT OF THE ASSESSEE DEDUCTING TAX AT SOURCE DURING THE FIRST ELEVEN MONTHS OF THE PREVIOUS YEAR AND PAYING IT BEFORE THE CLOSE OF THE PREVIOUS YEAR UP TO 3 1ST MARCH OF THE PREVIOUS YEAR AS A REQUIREMENT FOR GRANT OF DEDUCTION IN THE YEAR OF INCURRING SUCH EXPENDITURE, HAS BEEN EASED TO EXTEND SUCH TIM E FOR PAYMENT OF TAX UP TO DUE DATE U/S 139(1) OF THE ACT. AS PER THE NEW AMENDMENT, THE DISALLOWANCE WILL BE MADE IF AFTER D EDUCTING TAX AT SOURCE, THE ASSESSEE FAILS TO PAY THE AMOUNT OF TAX ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTIO N 139 OF THE ACT. THE EFFECT OF THIS AMENDMENT IS THAT NOW THE ASSESS EE DEDUCTING TAX EITHER IN THE LAST MONTH OF THE PREVIOUS YEAR O R FIRST ELEVEN MONTHS OF THE PREVIOUS YEAR SHALL BE ENTITLED TO DE DUCTION OF THE EXPENDITURE IN THE YEAR OF INCURRING IT, IF THE TAX SO DEDUCTED AT SOURCE IS PAID ON OR BEFORE THE DUE DATE U/S 139(1) . THIS IS THE ONLY DIFFERENCE WHICH HAS BEEN MADE BY THE FINANCE ACT, 2010. 15. THE QUESTION AS TO WHETHER THE AMENDMENT BY T HE FINANCE ACT, 2010 AS AFORESAID IS PROSPECTIVE OR RE TROSPECTIVE FROM 1.4.2005 CAME UP FOR CONSIDERATION BEFORE THE MUMBAI SPECIAL BENCH ITAT IN THE CASE OF BHARATI SHIPYARD LTD . BEFORE THE SPECIAL BENCH IT WAS ARGUED THAT THE AMENDMENT WAS MADE WITH A VIEW TO REMOVE THE UNNECESSARY HARDSHIP CAUS ED TO THE ASSESSEE BY THE EARLIER PROVISION. THE SPECIAL BENC H BY ITS ORDER DATED 9.9.2011 HOWEVER HELD THAT THE AMENDMENT CARR IED OUT BY THE FINANCE ACT, 2010 WITH RETROSPECTIVE EFFECT FRO M ASSESSMENT YEAR 2010- 2011 CANNOT BE HELD TO BE RETROSPECTIVE FROM ASSESSMENT YEAR 2005-2006. THE SPECIAL BENCH HELD THAT THE AMENDMENT BROUGHT OUT BY THE FINANCE ACT, 2010 TO S ECTION 40(A)(IA) W.E.F. 01.04.2010, IS NOT REMEDIAL AND CU RATIVE IN NATURE. 16. PRIOR TO THE DECISION OF THE SPECIAL BENCH, I DENTICAL ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE ITAT KOLKA TA BENCH IN THE CASE OF VIRGIN CREATIONS VS. ITO, WARD 32(4), KOLKATA ITA NO. 267/KOL/2009 FOR AY 05-06. THE ISSUE THAT AROSE FOR CONSIDERATION WAS DISALLOWANCE OF EXPENSES U/S.40(A )(IA)CLAIMED AS DEDUCTION WHILE COMPUTING INCOME FROM BUSINESS B EING EMBROIDERY CHARGES, DYEING CHARGES, INTEREST ON LOA N AND FREIGHT CHARGES WITHOUT DEDUCTING TAX AT SOURCE. THE EMBRO IDERY CHARGES WERE PAID BETWEEN 22ND MAY, 2004 TO 30.11.2 004. TAX HAD BEEN DEDUCTED AT SOURCE BUT WERE PAID TO THE GO VERNMENT ONLY ON 28.10.2005 AND NOT WITHIN THE TIME CONTEMPL ATED BY SECTION 200(1) OF THE ACT. THE DYEING CHARGES WERE PAID ITA NO.1699/BANG/2013 PAGE 13 OF 17 BETWEEN 5.4.2004 TO 20.8.2004. TAX WAS DEDUCTED AT SOURCE BUT WAS PAID TO THE GOVERNMENT ONLY ON 28.10.2005. FRE IGHT OUTWARD CHARGES WERE PAID WITHOUT DEDUCTION OF TAX AT SOURCE. INTEREST ON LOANS WERE CREDITED TO THE CREDITORS AC COUNT ON 31.3.2005 TO THE EXTENT THEY WERE PAID AFTER THE DU E DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT, THE DISALLO WANCE WAS MADE U/S.40(A)(IA) OF THE ACT. BEFORE THE TRIBUNAL , THE ASSESSEE CONTENTED THAT THE AMENDMENT BY THE FINANCE ACT, 20 10 WITH RETROSPECTIVE EFFECT FROM 1ST APRIL, 2010 WHEREBY A MOUNT OF TAX DEDUCTED AT THE TIME OF MAKING PAYMENT IN RESPECT O F EXPENDITURE REFERRED TO IN SEC.40(A)(IA) OF THE ACT, IF PAID TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME DUE DATE U/S 139(1) OF THE ACT SHOULD BE ALLOWED AS A DEDUCT ION. IN OTHER WORDS IT WAS ARGUED THAT THE AMENDMENT BY THE FINAN CE ACT, 2010 TO THE PROVISIONS OF SEC.40(A)(IA) HAS TO BE H ELD TO BE RETROSPECTIVE W.E.F. 1-4-2005. THE ITAT KOLKATA BE NCH BY ITS ORDER DATED 15.12.2010, HELD AS FOLLOWS: 8. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECOR D, KEEPING IN VIEW OF THE FACT THAT THOUGH THE LD.D.R. SUBMITTED THAT THE DECISIONS OF THE COORDINATE BENCHES ARE NOT BINDING AND THE KOLKATA BENCHES MAY TAKE A DIFFERENT VIEW, SINCE MUMBAI BENCH AFTER ANALYZING THE PROVISIONS OF SEC.40(A)9IA) SIN CE ITS INCEPTION AND VARIOUS AMENDMENTS MADE TO THE SAME INCLUDING THE SUGGESTION MADE BY THE INDUSTRY IN THE FORM OF REPRESENTATION IN THEIR PRE - BUDGET MEMORANDUM TO THE HONBLE FINANCE MINISTER AND BY APPLYING THE DECISION OF THE HONBL E APEX COURT IN THE CASE OF ALOM EXTRUSIONS LTD., HAS OBSERVED THAT THE PROVISIONS OF SECTION 40(A)(IA) AS STOOD PRIOR TO THE AMENDMENTS MADE BY THE FINANCE ACT 2010 THUS WERE RESULTING INTO UNINTENDED CONSEQUENCES AND CAUSING GRAVE AND GENUINE HARDSHIPS TO THE ASSESSES WHO HAD SUBSTANTIALLY COMPLIED WITH THE RELEVANT TDS PROVISIONS BY DEDUCTING THE TAXES AT SOURCE AND BY PAYING THE SAME TO THE CREDIT OF THE GOVERNMENT BEFORE THE DUE DATE OF FILING OF THEIR RETURNS U/S.139(1). IN ORDER TO REMEDY THIS POSITION AND T O REMOVE THE HARDSHIPS WHICH WAS BEING CAUSED TO THE ASSESSEE BELONGING TO SUCH CATEGORY, AMENDMENTS HAVE BEEN MADE IN THE PROVISIONS OF ITA NO.1699/BANG/2013 PAGE 14 OF 17 SECTION 40(A)(IA) BY THE FINANCE ACT, 2010. THE SA ID AMENDMENTS, IN OUR OPINION, THUS ARE CLEARLY REMEDIAL/CURATIVE IN NATURE AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF ALLIED MOTORS PVT.LTD. (SUPRA) AND MOM EXTRUSIONS LTD. (SUPRA) AND THE SAME THEREFORE WOULD APPLY RETROSPECTIVELY W.E.F. 1ST APRIL, 2005. IN THE CASE OF R.B.JODHA MAL KUTHIALA 82 ITR 570, IT WAS HELD BY THE HONBLE SUPREME COURT THAT A PROVISO WHICH IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE PROVISION WORKABLE, REQUIRES TO BE TREATED AS RETROSPECTIVE IN OPERATION SO THAT A REASONABLE INTERPRETATION CAN BE GIVEN TO THE SECTION AS A WHOLE. IN THE PRESENT CASE, THE AMOUNT OF TAX DEDUCTED AT SOURCE FROM THE FREIGHT CHARGES DURING THE PERIOD 01/04/2005 TO 28/02/2006 WAS PAID BY THE ASSESSEE IN THE MONTH OF JULY AND AUGUST 2006 I.E., WELL BEFORE THE DUE DATE OF FILING OF IT S RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THIS BEING THE UNDISPUTED POSITION, WE HOLD THAT THE DISALLOWANCE MADE BY THE A.O. AND CONFIRMED BY THE LEARNED CIT(A) ON ACCOUNT OF FREIGHT CHARGES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) IS NOT SUSTAINABLE AS PER THE AMENDMENTS MADE IN THE SAID PROVISIONS BY THE FINANCE ACT, 2010 WHICH, BEING REMEDIAL/CURATIVE IN NATURE, HAVE RETROSPECTIVE APPLICATION, WE FIND NO REASON TO DEVIATE FROM THE DECISIONS OF THE ITATS MUMBAI BENCH AND AHMEDABAD BENCH, IN THE ABSENCE OF A CONTRARY VIEW, EXCEPT THE OTHER BENCHES DECISIONS OR ANY OTHER HIGH COURT. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE COORDINATE BENCHES (SUPRA), WE ALLOW THE GROUND NOS. I TO 3 OF THE ASSESSEES APPEAL. 17. AS AGAINST THE AFORESAID DECISION THE REVENUE PREFERRED APPEAL BEFORE THE HONBLE CALCUTTA HIGH COURT. THE HONBLE CALCUTTA HIGH COURT IN ITA NO. 302 OF 2011 GA 3200/2011 DECIDED ON 23.11.2011 , HELD AS FOLLOWS: 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 ITA NO.1699/BANG/2013 PAGE 15 OF 17 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 SOURCE 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 UNDE R CONSIDERATION. THIS FACTUAL POSITION WAS UNDISPUTED. MOREOVER, THE SUPREME COURT, AS HAS BEEN RECORDED BY THE LEARNED TRIBUNAL, IN THE CASE OF ALLIED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTRUSIONS 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 INSERTED 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 OTHERWISE. HENCE WE DISMISS THE APPEAL WITHOUT ANY ORDER AS TO COSTS. 18. IT CAN BE SEEN FROM THE ABOVE DECISION OF THE H ONBLE CALCUTTA HIGH COURT THAT AMENDMENT TO THE PROVISION S OF SEC.40(A)(IA) OF THE ACT, BY THE FINANCE ACT, 2010 AS AFORESAID WAS HELD TO BE RETROSPECTIVE FROM 1.4.2005. IF THE AMENDMENT IS CONSIDERED AS RETROSPECTIVE FROM 1.4.2005, THE EFFE CT WILL BE THAT PAYMENTS OF TDS TO THE CREDIT OF THE GOVERNMENT ON OR BEFORE THE LAST DATE FOR FILING RETURN OF INCOME U/S.139(1 ) OF THE ACT FOR THE RELEVANT AY HAVE TO BE ALLOWED AS DEDUCTION. A DMITTEDLY IN THE CASE OF THE ASSESSEE PAYMENTS WERE SO MADE BEFO RE THE SAID DUE DATE AND IN TERMS OF THE DECISION OF THE HONBL E CALCUTTA HIGH COURT NO DISALLOWANCE COULD BE MADE BY THE AO U/S. 40(A)(IA) OF THE ACT. 19. THE QUESTION NOW IS AS TO WHETHER TO FOLLOW T HE DECISION OF THE HONBLE SPECIAL BENCH WHICH HAS TAKEN THE VI EW THAT AMENDMENT BY THE FINANCE ACT, 2010 TO THE PROVISION S OF SEC.40(A)(IA) OF THE ACT IS PROSPECTIVE AND NOT RET ROSPECTIVE FROM 1.4.2005 OR THE DECISION OF THE HONBLE CALCUTTA H IGH COURT ITA NO.1699/BANG/2013 PAGE 16 OF 17 TAKING A CONTRARY VIEW. ON THE ABOVE QUESTION, THE LEARNED COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THE DECISION OF THE ITAT DELHI IN THE CASE OF TEJ INTERNATIONAL (P) LTD. V. DY. CIT (2000) 69 TTJ (DEL) 650 , WHEREIN IT WAS HELD THAT IN THE HIERARCHICAL JUDICIAL SYSTEM THAT WE HAVE IN INDIA, THE WISDOM OF THE COURT BELOW HAS TO YIELD TO THE HIGHER WISDOM O F THE COURT ABOVE, AND THEREFORE, ONCE AN AUTHORITY HIGHER THAN THIS TRIBUNAL HAS EXPRESSED ITS ESTEEMED VIEWS ON A AN ISSUE, NOR MALLY, THE DECISION OF THE HIGHER JUDICIAL AUTHORITY IS TO BE FOLLOWED. THE BENCH HAS FURTHER HELD THAT THE FACT THAT THE JUDGM ENT OF THE HIGHER JUDICIAL FORUM IS FROM A NON-JURISDICTIONAL HIGH COURT DOES NOT REALLY ALTER THIS POSITION, AS LAID DOWN BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V. GODAVARIDEVI SARAF 113 ITR 589(BOM) . 20. IN VIEW OF THE ABOVE, WE HOLD FOLLOWING THE DE CISION OF THE HONBLE CALCUTTA HIGH COURT, THAT AMENDMENT TO THE PROVISIONS OF SEC.40(A)(IA) OF THE ACT, BY THE FINA NCE ACT, 2010 IS RETROSPECTIVE FROM 1.4.2005. CONSEQUENTLY, ANY PAYMENT OF TAX DEDUCTED AT SOURCE DURING PREVIOUS YEARS RELEVA NT TO AND FROM AY 05-06 CAN BE MADE TO THE GOVERNMENT ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT. IF PAYMENTS ARE MADE AS AFORESAID, THEN NO DEDUCTION U /S.40(A)(IA) OF THE ACT CAN BE MADE. ADMITTEDLY IN THE PRESENT CASE, THE ASSESSEE HAD DEPOSITED THE TAX DEDUCTED AT SOURCE O N OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S.139(1) OF THE ACT AND THEREFORE THE IMPUGNED DISALLOWANCE DESERVES TO BE DELETED. WE ORDER ACCORDINGLY AND ALLOW THE APPEAL BY THE ASSES SEE. 21. THE AFORESAID VIEW HAS ALSO BEEN TAKEN IN THE FOLLOWING DECISIONS OF THE TRIBUNAL:- RAJAMAHENDRI SHIPPING & OIL FIELD SERVICES LTD., ITA NO.352/VIZAG/2008 DATED 13.04.2012. SRI PIYUSH C. MEHTA, ITA NO.1321/MUM/2009 DATED 11.04.2012. 11. IT WAS ALSO BROUGHT TO OUR NOTICE THAT THE HON BLE HIGH COURT OF KARNATAKA IN ITA NO.590/2013 BY JUDGMENT DATED 15.7 .2014, HAS UPHELD ITA NO.1699/BANG/2013 PAGE 17 OF 17 THE VIEW TAKEN BY THE TRIBUNAL. IN VIEW OF THE ABO VE, WE DO NOT FIND ANY MERIT IN GROUNDS NO.2 & 3 RAISED BY THE REVENUE. 12. IN THE RESULT, THE APPEAL BY THE REVENUE IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF OCTOBER, 2014 . SD/- SD/- ( JASON P. BOAZ ) ( N.V. VASUDEVA N ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 10 TH OCTOBER , 2014 . /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR / SENIOR PRIVATE SECRETARY ITAT, BANGALORE.