PRAVIN ELECTRICALS PVT. LTD., THANE V. A.C.I.T.10(3), MUMBAI

ITA 2593/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70639 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A
• Assessee Lawyers: K GOPAL IZRFKHZ DH LS

Judgement Text

M/S PRAVIN ELECTRICALS PVT. LTD. . - 1 - VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA VK;DJ VIHYH; VF/KDJ.K LH U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUM BAI JH JKTSUNZ FLAG YS[KK LNL; ,OA JH LAT; XXZ U;KF;D L NL; DS LE{K JH JKTSUNZ FLAG YS[KK LNL; ,OA JH LAT; XXZ U;KF;D L NL; DS LE{K JH JKTSUNZ FLAG YS[KK LNL; ,OA JH LAT; XXZ U;KF;D L NL; DS LE{K JH JKTSUNZ FLAG YS[KK LNL; ,OA JH LAT; XXZ U;KF;D L NL; DS LE{K BEFORE SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER AND SHRI SANJAY GARG JUDICIAL MEMBER VK; VK;VK; VK;DJ VIHY LA[;K DJ VIHY LA[;K DJ VIHY LA[;K DJ VIHY LA[;K /ITA NO.2593/MUM/2012 FU/KKZJ.K O'KZ FU/KKZJ.K O'KZ FU/KKZJ.K O'KZ FU/KKZJ.K O'KZ @ @@ @ ASSESSMENT YEAR:- 2009-10 M/S PRAVIN ELECTRICALS PVT. LTD. E-5/2, FIRST FLOOR, HIGHLAND PARK, JAI SHASTRI NAGAR, MULUND (W) MUMBAI 400 082. CUKE@ VS. ASSISTANT CIT 10 (3) MUMBAI. PAN:- AABCP9664P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ APPELLANT BY SHRI K. GOPAL IZR;FKHZ DH VKSJ LS @ RESPONDENT BY SHRI R.A PANT VKNS'K@ ORDER PER RAJENDRA SINGH, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.3.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2009-10. THE ONLY DI SPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING DISALLOWANCE OF EXPENSES A MOUNTING TO RS. 1,51,56,703/- U/S 40 (A) (IA) OF THE INCOME TAX ACT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE WHO IS A ELECTRICAL CONTRACTOR HAD DEDUCTED TAX AT SOURCE FROM VARIOUS PAYMENTS MADE T O CONTRACTORS FOR PERIOD OCTOBER LQUOKBZ DH RKJH[K@ DATE OF HEARING 30-7-2013 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 7-8-2013 M/S PRAVIN ELECTRICALS PVT. LTD. . - 2 - 2008 TO FEBRUARY 2009, BUT THE TAX HAD BEEN DEPOSIT ED WITH THE GOVERNMENT AFTER 31.3.2009. THE TOTAL AMOUNT PAID WAS RS. 1,57,56,70 3/-. THE AO, THEREFORE, ADDED THE SAID SUM U/S 40(A)(IA) WHICH PROVIDED THAT IN CASE TAX WAS NOT DEDUCTED OR AFTER DEDUCTION HAD NOT BEEN PAID TO THE CENTRAL GOVERNME NT WITHIN THE DUE DATE, THE EXPENDITURE WILL BE DISALLOWED. THE ASSESSEE DISPUT ED THE DECISION OF AO AND SUBMITTED BEFORE CIT(A) THAT PROVISIONS OF SECTION 40(A)(IA) WERE NOT APPLICABLE. IT WAS ALSO SUBMITTED THAT EVEN IF THE PROVISIONS WERE APP LICABLE NO ADDITION COULD BE MADE IN VIEW OF THE AMENDMENT TO SECTION 40(A)(IA) BY FI NANCE ACT 2010 AS THE DEPOSITS WITH THE GOVERNMENT HAD BEEN MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. IT WAS POINTED OUT THAT THE AMENDMENT WAS RETROSPECTIV E IN NATURE. CIT(A) HOWEVER OBSERVED THAT THE AMENDMENT WAS NOT RETROSPECTIVE A S HELD BY THE SPECIAL BENCH OF TRIBUNAL IN CASE OF BHARTI SHIPYARD LTD. VS DY. CIT (132 ITD 53). CIT(A ) ACCORDINGLY UPHELD THE ORDER OF AO, AGGRIEVED BY WH ICH THE ASSESSEE IS IN APPEAL BEFORE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES PERUSED THE RECOR DS AND CONSIDERED MATTER CAREFULLY. THE ASSESSEE WHO IS A CONTRACTOR HAD MADE CERTAIN PAYMENTS IN CONNECTION WITH THE BUSINESS. UNDER THE PROVISIO NS OF SECTION 40 (A) (IA) IF ON ANY PAYMENT MADE TO CONTRACTORS/SUB CONTRACTORS TAX IS DEDUCTIBLE AND IF THE SAME IS NOT DEDUCTED OR AFTER DEDUCTION HAS NOT BEE N DEPOSITED WITH THE CENTRAL GOVERNMENT WITHIN THE DUE DATE, THE EXPENDI TURE INCURRED CANNOT BE DISALLOWED. IN THIS CASE THE ASSESSEE HAD DEDUCTED THE TAX BUT THE PAYMENT HAD BEEN MADE BEYOND DUE DATE AFTER THE CLOSE OF FI NANCIAL YEAR I.E. 30.4.2010. SECTION 40(A)(IA) WAS AMENDED BY FINANCE ACT 2010 A ND AS PER THE AMENDED PROVISIONS THE EXPENDITURE HAD TO BE ALLOWED IF THE DEPOSIT HAD BEEN MADE WITHIN THE DUE DATE OF FILING RETURN OF INCOME. THE SAID AMENDMENT IS RETROSPECTIVE IN NATURE AS HELD BY HONBLE HIGH COU RT OF KOLKATA IN CASE OF VIRGIN CREATIONS (ITA NO. 302 OF 2011 DATED 23.11.2 011). FOLLOWING THE SAID JUDGMENT THE MUMBAI BENCH OF TRIBUNAL IN CASE OF PI YUSH C. MEHTA (52 SOT 27) HAS ALLOWED THE CLAIM IF THE DEPOSITS HAD BEEN MADE BEFORE THE DUE DATE OF M/S PRAVIN ELECTRICALS PVT. LTD. . - 3 - FILING OF RETURN OF INCOME. FOLLOWING THE SAID JUDG MENTS WE SET ASIDE THE ORDER OF CIT(A) AND ALLOW THE CLAIM OF THE ASSESSEE. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 7-8-2013 SD/- SD/- (SANJAY GARG) (RAJENDRA SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER SKS SR. P.S, MUMBAI DATED 7.8.2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI