The Dy. CIT., Circle-1, Ahmedabad V. Bloom Dekor Ltd., Ahmedabad

ITA 3114/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0527 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 30-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: JAIMIN R DAVE
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 3114/AHD/2013 / ASSESSMENT YEAR : 2007-08 DCIT, CIRCLE-1, AHMEDABAD VS BLOOM DEKOR LTD., 2 ND FLOOR, SUMEL, OPP. GNFC TOWER, SG HIGHWAY, THALTEJ, AHMEDABAD 380059 PAN : AAACB 6221 B / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI RAHUL KUMAR, SR DR ASSESSEE BY : SHRI JAIMIN R. DAVE, ADVOCATE / DATE OF HEARING : 26/09/2016 / DATE OF PRONOUNCEMENT: 26/09/2016 / O R D E R THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-6, AHMEDABAD D ATED 30.10.2013 FOR AY 2007-08. 2. FOLLOWING GROUNDS ARE RAISED:- 1. THE CIT(A) HAS ERRED IN LAW AND ON FACT IN DELETING THE DISALLOWANCE U/S 40(A)(IA) AMOUNTING TO RS.88.35 LACS DESPITE THE FACT THAT THE TDS DEDUCTED FROM NOVEMBER, 2006 TO FEBRUARY, 2007 WAS PAID ON 31.05.2007 INSTEAD OF 31.03.2007 AS PER THE APPLICA BLE PROVISIONS OF SECTION 40(A)(IA) FOR AY 2007-08. 2. THE CIT(A) HAS NOT APPRECIATED THE FACT THAT THE PRO VISIONS OF SECTION 40(A)(IA) WITH REGARD TO PAYMENT OF TDS HAVE NOT BEEN AMENDED RETROSPECTIVELY BUT AMENDED W.E.F. 01.04.2010. 3. LD. DR RELIED ON THE ORDER OF THE LD. ASSESSING OFFICER. 4. LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, CONTENDS THAT IT IS UNDISPUTED THAT THE TDS AMOUNTS IN QUESTION WERE PA ID ON 31.05.2007, I.E., MUCH BEFORE THE DUE DATE OF FILING OF RETURN IN QUE STION. LD. CIT(A) OBSERVING THESE UNDISPUTED FACTS AND RELYING ON ITA T JUDGMENT IN THE CASE SMC-ITA NO.3114/AHD/2013 DCIT VS. BLOOM DEKOR LTD AY : 2007-08 2 OF ITO V.S SANJAY GANDALAL PATEL IN ITA NO.2826/AHD /2011 DATED 23.03.2012 FOR AY 2008-09, WHICH IN TURN RELIED ON THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VIRGIN C REATORS. THE ISSUE IN QUESTION STOOD DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. OMPRAKASH R. CHAUDHARY, REPORTED IN [2015] 57 TAXMANN.COM 38 (GUJARAT), BY HOLDING AS UNDER:- 18. FROM THE DISCUSSION HELD HEREINABOVE, WE ANSW ER THE SUBSTANTIAL QUESTION OF LAW RAISED IN THESE APPEALS IN FAVOUR O F THE ASSESSEE AND AGAINST THE REVENUE BY HOLDING THE AMENDMENT MADE IN SECTIO N 40(A)(IA) OF THE INCOME TAX ACT, 1961 BY THE FINANCE ACT, 2010, AS RET ROSPECTIVE IN OPERATION, HAVING EFFECT FROM 1 ST APRIL 2005 I.E., FROM THE DATE OF INSERTION OF SECTION 40(A)(IA) OF THE ACT. 19. RESULTANTLY, WE HOLD THAT THE TRIBUNAL RIGHTLY DECIDED THE SAID ISSUE FOLLOWING THE CALCUTTA HIGH COURTS DECISION IN CAS E OF VIRGIN CREATIONS (SUPRA) BY HOLDING THAT THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) BY THE CIT(A) EVEN FOR THE AMOUNT FOR WHICH THE TDS HAD BEE N DEDUCTED BEFORE 1 ST MARCH 2005, HOLDING AMENDMENT BROUGHT ON 1 ST APRIL 2010 AS RETROSPECTIVE IN NATURE. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE LOWER AUT HORITIES. RESPECTFULLY FOLLOWING THE HONBLE GUJARAT HIGH COURT JUDGMENT I N THE CASE OF CIT VS. OMPRAKASH R. CHAUDHARY (SUPRA), IT IS HELD THAT THE AMENDMENT IN SECTION 40(A)(IA) INTRODUCED BY THE FINANCE ACT, 2010 IS OF CLARIFICATORY AND RETROSPECTIVE IN NATURE, APPLICABLE FROM 01.04.2005 . IN VIEW THEREOF, THERE IS NO INFIRMITY IN ORDER OF THE LD. CIT(A) WHICH IS UP HELD AND THUS, THE REVENUES APPEAL IS DISMISSED. 6. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 26 TH SEPTEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 26/09/2016 *BIJU T. SMC-ITA NO.3114/AHD/2013 DCIT VS. BLOOM DEKOR LTD AY : 2007-08 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD