ACIT, Circle - 1, Hooghly, Hooghly V. M/s. Mitra Real Estate Pvt. Ltd., Hooghly

ITA 2120/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9194 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2010
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Assessee Lawyers: R SALARPURIA
• Keywords: Retrospective amendment

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI D.K.TYAGI, JUDICIAL MEMBER. !' !' !' !' /AND . .. . . .. .! !! ! , # SHRI C.D.RAO, ACCOUNTANT MEMBER '$ '$ '$ '$ / ITA NO . 2120/KOL/2010 %&' !()/ ASSESSMENT YEAR : 2006-07 (+, / APPELLANT ) A.C.I.T., CIRCLE-1, HOOGHLY - !& - - VERSUS - . (.+,/ RESPONDENT ) M/S. MITRA REAL ESTATE PVT. LTD, KOLKATA (PAN: AABCM 9191 N) +, / 0 / FOR THE APPELLANT: SHRI A.K.PRAMANIK, SR.DR .+, / 0 / FOR THE RESPONDENT: SHRI R.SALARPURIA 1 / ORDER ( (( ( . .. . . .. .! !! !) )) ), , , , # PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 30.08.2010 OF THE CIT(A)-CENTRAL-XXXVI, KOLKATA PERTAINING TO A.YR. 2 006-07. 2. THE ONLY ISSUE RAISED BY THE REVENUE IN THI S APPEAL IS RELATING TO DELETION OF ADDITION MADE BY THE AO BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA)OF THE I.T.ACT. 3. THE BRIEF FACTS OF THE ISSUE ARE THAT THE AO HAS DISALLOWED AN AMOUNT OF RS.24,44,751/- AS RECORDED AT PAGE 2 OF THE ASSESSM ENT ORDER BY OBSERVING THAT THE ASSESSEE HAS FAILED TO DEDUCT TAX AND/OR DEPOSIT TD S RELATED TO AMOUNT PAID (AS ADVANCE OR OTHERWISE) IN MONTHS OTHER THAN MARCH, 0 7 I.E. RS.24,444,751/- THE SAME IS DISALLOWED AS PER PROVISION OF SECTION 40(A)(IA). 2 3.1. ON APPEAL THE LD. CIT(A) HAS DELETED THE SAME BY KEEPING IN VIEW OF THE FACT THAT THE AMENDMENT PROVISION OF SECTION 40(A)(IA) O F THE IT ACT BY STATING THAT I HAVE CAREFULLY CONSIDERED THE ABOVE. FOR BETTER APPRECIATION OF THE ISSUE THE PROVISIONS OF SECTION 40(A)(IA) OF THE IT ACT (BEFO RE THE AMENDMENT BY THE FINANCE ACT, 2010, W.E.F. 1.4.2010) ARE EXTRACTED B ELOW :- (IA) ANY INTEREST, COMMISSION OR BROKERAGE, 91(REN T, ROYALTY] FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S PAYABLE TO THE RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTOR B EING RESIDENT, FOR CARR4YING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR FOR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTED AT SOURCE UNDER CHAPTER XV II-B AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION, HAS NOT BEEN PAI D (A) IN A CASE WHERE THE TAX WAS DEDUCTIBLE AND WAS SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR, ON OR BEFORE THE DUE DA TE SPECIFIED IN SUB-SECTION (1) OF SECTION 139; OR (B) IN ANY OTHER CASE, ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR. IT IS CLEAR FROM THE ABOVE, THAT IF THE TDS AMOUNT DEDUCTED BEFORE THE LAST MONTH OF THE PREVIOUS YEAR AND WAS REMITTED IN TO THE GOVERNMENT ACCOUNT ON OR BEFORE THE DUE DATE SPECIFIED U/S 139(1) OF T HE IT ACT, THEN THE PAYMENT REFERRED TO IN SUB-SECTION 40(A)(IA) SHOULD BE ALLO WED. IN THE INSTANT CASE, THERE IS NO DISPUTE THAT THE APPELLANT HAD DEDUCTED TDS F ROM THE PAYMENTS MADE TO THE CONTRACTORS BEFORE THE END OF MARCH, 2007 AND T HAT THE AMOUNT SO DEDUCTED WAS REMITTED INTO THE GOVERNMENT ACCOUNT ON 7.4.200 7 I.E. FELL WITHIN THE DUE DATE SPECIFIED U/S 139(1) OF THE IT ACT. THEREFORE, CLEARLY THE PAYMENTS MADE BY THE APPELLANT TO THE CONTRACTORS WERE NOT HIT BY THE PROVISIONS OF SECTION 40(A)(IA) OF THE IT ACT. IN VIEW OF THE ABOVE, THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN THIS REGARD, IS IN MY VIEW, IN CORRECT. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO DELETE RS.24,44,75 1/-. 3.2. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEF ORE US. 4. AT THE TIME OF HEARING THE LD. DR APPEARING ON BEHALF OF THE REVENUE THOUGH RELIED ON THE ORDER OF THE AO COULD NOT CONTRADICT THE OBSERVATIONS MADE BY THE LD. CIT(A). 5. ON THE OTHER HAND, THE LD. AR APPEARING ON BEHA LF OF THE ASSESSEE RELIED ON THE ORDERS OF THE LD. CIT(A ). 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT TH AT THE ASSESSEE HAS ALREADY PAID THE TDS RECOVERED PRIOR TO THE DUE DATE OF FILING OF TH E RETURN SPECIFIED U/S 139(1) OF THE 3 IT ACT AS PER THE AMENDED PROVISION OF SECTION 40(A )(IA) BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 1.4.2005. KEEPING IN VIEW OF THIS FACT, WE FIND NO INFIRMITY IN THE ORDERS OF THE LD. CIT(A) AND THERE FORE WE CONFIRM THE SAME AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 29.03.2011 SD/- SD/- . .. . . .. . , , , , % % % % D.K.TYAGI, JUDICIAL MEMBER . .. . . .. .! !! !, ,, , # # # # , C.D.RAO, ACCOUNTANT MEMBER. ( (( (# # # #) )) ) DATE: 29.03.2011 ORDER PRONOUNCED IN THE COURT ON 29.03.2011 SD/- SD/- AM JM (CDR) (MS) 1 / .%%2 32(4- COPY OF THE ORDER FORWARDED TO: 1. M/S. MITRA REAL ESTATE PVT. LTD., 37, BAKULTALA LAN E, KONNAGAR, HOOGHLY- 712 235. 2 THE ACIT, CIRCLE-1, HOOGHLY. 3. THE CIT, 4. THE CIT(A)-XXXVI, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 2 .%/ TRUE COPY, 1&9/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)