The ITO, Ward-9(1), Ahmedabad V. M/s. Shreenath Builders, Ahmedabad

ITA 2571/AHD/2010

• Counselvise Citation: 257120514 RSA 2010
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-09-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 27-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER A ND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.2571 / AHD/2010 (ASSESSMENT YEAR 2007-08) ITO, WARD 9(1), AHMEDABAD VS. M/S. SHREENATH BUILDERS TOWER 4, 2/B, CENTRE POINT, PANCHVATI ROAD, AHMEDABAD PAN/GIR NO. : ABEFS2920A (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI MUDIT NAGPAL, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 14.09.2012 DATE OF PRONOUNCEMENT: 05.10.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A)- XV, AHMEDABAD DATED 14.07.2010 FOR THE ASSESSMENT Y EAR 2007-08. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1). THE ID. COMMISSIONER OF INCOME-TAX (A)-XV , AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISAL LOWANCE OF RS.45,20,105/- MADE BY THE ASSESSING OFFICER U/S. 4 0(A)(IA) OF THE L.T. ACT. 2) THE ID. COMMISSIONER OF INCOME-TAX (A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT AMEND ED PROVISIONS OF SECTION 40(A)(IA) (BY FINANCE ACT, 2008) ARE APPLIC ABLE FOR WHOLE YEAR, THOUGH THE SAME IS APPLICABLE FOR TDS MADE IN LAST MONTH OF PREVIOUS YEAR ONLY AND NOT APPLICABLE FOR WHOLE YEA R. ' 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CLT[A] -XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDE R OF THE ASSESSING OFFICER. I.T.A.NO.2571/AHD/2010 2 4) IT IS THEREFORE, PRAYED THAT THE ORDER OF THE ID. COMMISSIONER OF INCOME-TAX(A) -XV, AHMEDABAD MAY BE SET-ASIDE AN D THAT OF THE ASSESSING OFFICER BE RESTORED. 3. NOTICE WAS ISSUED TO THE ASSESSEE UNDER RPAD WHI CH HAS COME BACK UNSERVED WITH THE REMARKS LEFT AND HENCE, WE PROCEED TO DECIDE THIS APPEAL OF THE REVENUE EX-PARTE QUA THE ASSESSE E. 4. LD. D.R. SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND T HAT IN THE PRESENT CASE, THE ISSUE IN DISPUTE WAS DECIDED BY LD. CIT(A) IN F AVOUR OF THE ASSESSEE AS PER PARA 6 OF HIS ORDER WHICH IS REPRODUCED BELO W: 6. THROUGH FACTS ON RECORD IT IS SEEN THAT THE APP ELLANT MADE THE PAYMENTS COVERED U/S.194 C ON 31.3.2007 TO DIFFEREN T PERSONS AND ACCORDING TO THE AO IDS SHOULD HAVE BEEN DEPOSITED IN THE GOVERNMENT ACCOUNT BEFORE THE END OF THE FINANCIAL YEAR THAT IS BY 31.3.2007, BUT IT WAS DEPOSITED ON 31.5.2007 AS PER AUDIT REPORT .BUT SECTION 40(A)(IA) HAS SINCE BEEN AMENDED BY TH E FINANCE ACT 2008 WITH RETROSPECTIVE EFFECT FROM 1 .4.2005 AND A S PER CLAUSE 'A' INSERTED BELOW THIS SECTION NO DISALLOWANCE OF PAYM ENT CAN BE MADE IF IDS ON THE SAME 'WAS DEDUCTIBLE AND WAS SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR' AND HAS BEEN PAID / DEPOSITED (IN GOVERNMENT ACCOUNT) 'ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139'. HERE THE APPELLANT HAS DEPOSITED TDS IN GOVERNMENT ACCOUNT ON 31.05.2007 B EFORE THE DUE DATE OF FILING OF RETURN THAT IS 31.10.2007, TH EREFORE THE AO IS DIRECTED TO DELETE THE DISALLOWANCE MADE OF RS.45,2 0,1,05 U/S.40(A)(IA). 6. IN THE ABOVE PARA OF THE ORDER OF LD. CIT(A), IT IS SEEN THAT THIS IS NOT THE DISPUTE THAT THE TDS IN QUESTION WAS DEPOSI TED BY THE ASSESSEE IN THE GOVERNMENT ACCOUNT ON 31.05.2007 AND THE DUE DA TE OF FILING OF RETURN BY THE ASSESSEE WAS 31.10.2007 AND AS PER TH E AMENDMENT MADE BY THE FINANCE ACT 2008 WITH RETROSPECTIVE EFFECT FORM 01.04.2005, NO DISALLOWANCE IS CALLED FOR U/S 40(A)(IA) OF THE ACT IF THE TDS IS DEDUCTED I.T.A.NO.2571/AHD/2010 3 IN THE LAST MONTH OF THE PREVIOUS YEAR AND TDS WAS DEPOSITED IN GOVERNMENT ACCOUNT BEFORE THE DUE DATE OF FILLING O F RETURN OF INCOME. IN THE PRESENT CASE ALSO, TDS WAS DEDUCTED BY THE ASSE SSEE ON 31.03.2007 AND HENCE, IN THE PRESENT CASE, AS PER THE AMENDED PROVISIONS OF SECTION 40(A)(IA), NO DISALLOWANCE IS JUSTIFIED BECAUSE THE TDS WAS DEPOSITED BY THE ASSESSEE IN THE GOVERNMENT ACCOUNT BEFORE THE D UE DATE OF FILING OF RETURN OF INCOME. HENCE, WE DECLINE TO INTERFERE I N THE ORDER OF LD. CIT(A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 26/09/2012. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27/09/2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05/10/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.9/10/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09/10/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .