Agrawal Khurana Joint Venture, Ahmedabad V. The Income tax Officer,Ward-9(2), Ahmedabad

ITA 247/AHD/2012

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0432 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: SUBMISSION
• Keywords: TDS
• Section: 40(a)(ia)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD - BENCH D BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO.247/AHD/2012 / ASSTT.YEAR : 2008-09 AGRAWAL KHURANA (JV) MSK HOUSE NR. PASSPORT OFFICE AMBAWADI. AAAAA 8372 Q VS. ITO (OSD) RANGE-9 AHMEDABAD. ITA NO.248/AHD/2012 / ASSTT.YEAR : 2008-09 NCC MSKEL(JV) MSK HOUSE NR. PASSPORT OFFICE AMBAWADI. AAAAN 4514 J VS. ITO (OSD) RANGE-9 AHMEDABAD. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SUBMISSION REVENUE BY : SONIA KUMAR, SR.DR / DATE OF HEARING : 29/08/2019 / DATE OF PRONOUNCEMENT: 11/09/2019 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT TWO APPEALS ARE DIRECTED AT THE INSTANCE OF THE ASSESSEES AGAINST SEPARATE ORDERS OF THE LD.CIT(A)-XV, AHMEDA BAD DATED 15.12.2011 PASSED IN THE ASSTT.YAR 2008-09 ON RESPE CTIVE APPEALS OF THE APPELLANTS. SINCE COMMON ISSUE IS INVOLVED IN BOTH THE APPEALS, THEREFORE, WE HEARD THEM TOGETHER AND DISPOSE OF BY THIS COMMON ORDER. ITA NO.247 AND 248/AHD/2012 2 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF RS.39,85,391/- IN THE CASE OF AGRAWAL KHURANA (JV) AND RS.16,27,516/- IN THE CASE OF NCC- MSKEL(JV) WHICH WERE DISALLOWED BY THE AO ON THE GR OUND THAT THE ASSESSEE FAILED TO DEPOSIT TDS WITH RESPECT TO THE ABOVE EXPENDITURE, AND THEREFORE, THESE AMOUNTS DESERVES TO BE DISALLO WED UNDER SECTION 40(A)(IA) OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT IN THE CASE OF AGRAWAL KHURANA (JV), THE ASSESSEE HAS DEDUCTED THE TDS FROM APRIL TO FEBRUARY FOR THE ASSTT.YEAR 2007-08. THIS AMOUNT WAS DEPOSITED IN THE GOVERNMENT ACCOUNT IN THE MONTH OF MAY, 2008 I.E. B EFORE THE DUE DATE OF FILING OF RETURN UNDER SECTION 139(1). SIM ILARLY, IN THE CASE OF NCC-MSKEL(JV), THE ASSESSEE HAS DEDUCTED TDS FROM A PRIL 2007 TO FEBRUARY, 2008 WHICH WERE DEPOSITED IN THE MONTH OF MAY, 2008. THE AO WAS OF THE VIEW THAT THESE TDS AMOUNTS OUGHT TO HAVE BEEN DEPOSITED BEFORE 31.3.2008. SINCE THEY WERE DEPOSI TED AFTER THE END OF THE YEAR, THEREFORE, THE ASSESSES WERE NOT ENTIT LED TO THE DEDUCTION. THE STAND OF THE ASSESSEE IS THAT THE SECTION 40(A) (A) HAS BEEN AMENDED BY FINANCE ACT, 2010. THIS AMENDMENT HAS BEEN HELD TO BE RETROSPECTIVE FROM THE ASSTT.YEAR 2005-06. THIS ST AND OF THE ASSESSEE WAS NOT ACCEPTED BY BOTH THE REVENUE AUTHORITIES, H ENCE, THESE APPEALS BEFORE THE TRIBUNAL. 4. IT IS CONTENDED THAT THE ISSUE IN DISPUTE IS SQU ARELY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F CIT VS. CALCUTTA EXPORT COMPANY (2018) 404 ITR 654 (SC). 5. THE LD.DR WAS UNABLE CONTROVERT TO THIS CONTENTI ONS OF THE LD.COUNSEL FOR THE ASSESSEE. 6. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE ISSUE BEFORE THE HONBLE SUPREME COURT WAS WHET HER THE AMENDMENT MADE BY THE FINANCE ACT, 2010 IN SECTION 40(A)(IA) OF THE ACT IS RETROSPECTIVE IN NATURE AND APPLY TO THE PRE SENT FACTS OF THE CASE. THE HONBLE COURT HAS HELD THAT AMENDMENT TO SECTIO N 40(A)(IA) BY FINANCE ACT, 2010 W.E.F. 1.4.2010 PROVIDE THAT TDS MADE DURING THE PREVIOUS YEAR CAN BE DEPOSITED WITH THE GOVERNMENT BY THE DUE DATE OF FILING THE RETURN OF INCOME SHOULD BE INTERPRET ED LIBERALLY AND ITA NO.247 AND 248/AHD/2012 3 EQUITABLY AND APPLIES RETROSPECTIVELY FROM THE DATE WHEN SECTION 40(A)(IA) WAS INSERTED I.E., WITH EFFECT FROM THE A SSESSMENT YEAR 2005- 06 SO THAT AN ASSESSEE SHOULD NOT SUFFER UNINTENDED CONSEQUENCES BEYOND WHAT THE OBJECT AND PURPOSE OF THE PROVISION MANDATES. IN VIEW OF THIS JUDGMENT OF HONBLE SUPREME COURT, IT WOULD REVEAL THAT BOTH THE ASSESSEES HAVE DEPOSITED TDS DEDUCTED BY T HEM BEFORE THE DUE DATE OF FILING OF THE RETURN, AND THEREFORE, NO DISALLOWANCE CAN BE MADE. ACCORDINGLY, WE ALLOW BOTH THE APPEALS AND D ELETE IMPUGNED DISALLOWANCE. 7. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLO WED. ORDER PRONOUNCED IN THE COURT ON 11 TH SEPTEMBER, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER