M/s Bhiwani Coal Carriers (P) Ltd., New Delhi V. ITO, New Delhi

ITA 3357/DEL/2009

• Counselvise Citation: 335720114 RSA 2009
• Duration Of Justice: 4 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-08-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 27-07-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M B REDDY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.3357/DEL/2009 3357/DEL/2009 3357/DEL/2009 3357/DEL/2009 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2005 2005 2005 2005- -- -06 0606 06 M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) LTD., LTD., LTD., LTD., C/O AJAY RELAN & ASSOCIATE C/O AJAY RELAN & ASSOCIATE C/O AJAY RELAN & ASSOCIATE C/O AJAY RELAN & ASSOCIATES, S,S, S, CHARTERED ACCOUNTANTS, CHARTERED ACCOUNTANTS, CHARTERED ACCOUNTANTS, CHARTERED ACCOUNTANTS, 207 207 207 207- -- -A, PALCO HOUSE, A, PALCO HOUSE, A, PALCO HOUSE, A, PALCO HOUSE, 2162/T 2162/T 2162/T 2162/T- -- -10, 10, 10, 10, GURU ARJUN NAGAR, MAIN GURU ARJUN NAGAR, MAIN GURU ARJUN NAGAR, MAIN GURU ARJUN NAGAR, MAIN ROAD, WEST PATEL NAGAR, ROAD, WEST PATEL NAGAR, ROAD, WEST PATEL NAGAR, ROAD, WEST PATEL NAGAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PAN : PAN : PAN : PAN : AAGFA8542B. AAGFA8542B. AAGFA8542B. AAGFA8542B. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2(4), 2(4), 2(4), 2(4), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SOMIL AGARWAL, CA AND SHRI ROHAN KHARE, ADVOCATE. RESPONDENT BY : SHRI M.B.REDDY, CIT-DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-V, NEW DELHI DATED 16 TH MARCH, 2009 FOR THE AY 2005-06. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS OF APPEA L. HOWEVER, THEY ARE ALL AGAINST THE DISALLOWANCE MADE UNDER SE CTION 40(A)(IA) OF THE INCOME-TAX ACT, 1961 DUE TO DELAY IN DEPOSIT OF THE TDS. 3. AT THE TIME OF HEARING BEFORE US, IT WAS STATED BY THE LEARNED COUNSEL THAT THE TDS HAS ALREADY BEEN DEPOSITED BEF ORE THE DUE DATE FOR FILING OF THE RETURN AND, THEREFORE, NO DISALLO WANCE IN THIS REGARD CAN BE MADE. IN SUPPORT OF THIS CONTENTION, HE, AP ART FROM RELYING UPON VARIOUS DECISIONS OF THE ITAT, ALSO RELIED UPO N THE DECISION OF ITA-3357/DEL/2009 2 HON'BLE CALCUTTA HIGH COURT DATED 23 RD NOVEMBER, 2011 IN THE CASE OF CIT VS. VIRGIN CREATIONS IN ITA NO.302 OF 2011. A COPY OF THE SAID JUDGMENT OF HON'BLE CALCUTTA HIGH COURT HAS BEEN FI LED BEFORE US. 4. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF AUTHORITIES BELOW AND HE FURTHER STATED THAT IF THE LEGAL CONTENTION OF THE ASSESSEE IS ACCEPTED, THEN ALSO THE MATTER NEED S TO BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER SO THAT HE CAN VE RIFY THE ASSESSEES CONTENTION THAT THE ASSESSEE HAS ALREADY DEPOSITED THE TAX BEFORE THE DUE DATE FOR FILING OF THE RETURN. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL PLACED BEFORE US. WE FIND THAT SECTIO N 40(A)(IA) HAS BEEN AMENDED BY THE FINANCE ACT, 2010 WITH EFFECT FROM 1 .4.2010 BY WHICH IT HAS BEEN PROVIDED THAT DISALLOWANCE UNDER THIS S ECTION SHALL BE MADE ONLY IF THE TAX DEDUCTED AT SOURCE HAS NOT BEE N PAID ON OR BEFORE THE DUE DATE FOR FILING OF THE RETURN UNDER SECTION 139(1). THE ASSESSMENT YEAR UNDER CONSIDERATION BEFORE US IS 20 05-06. HOWEVER, WE FIND THAT HON'BLE CALCUTTA HIGH COURT IN THE CAS E OF VIRGIN CREATIONS (SUPRA) HAS HELD THIS AMENDMENT TO BE OF RETROSPECT IVE NATURE. THEIR LORDSHIPS OF CALCUTTA HIGH COURT IN THE SAID CASE H AVE HELD AS UNDER:- THE COURT : WE HAVE HEARD MR. NIZAMUDDIN AND GONE THROUGH THE IMPUGNED JUDGMENT AND ORDER. WE HAVE A LSO EXAMINED THE POINT FORMULATED FOR WHICH THE PRESENT APPEAL IS SOUGHT TO BE ADMITTED. IT IS ARGUED BY MR. NIZAMUDDIN THAT THIS COURT NEED S TO TAKE DECISION AS TO WHETHER SECTION 40(A)(IA) IS HAVING RETROSPECTIVE OPERATION OR NOT. THE LEARNED TRIBUNAL ON FACT FOUND THAT THE ASSESSE E HAD DEDUCTED TAX AT SOURCE FROM THE PAID CHARGES BETWEE N THE PERIOD APRIL 1, 2005 AND APRIL 28, 2006 AND THE SAM E WERE PAID BY THE ASSESSEE IN JULY AND AUGUST 2006, I.E. WELL BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCO ME FOR THE ITA-3357/DEL/2009 3 YEAR UNDER CONSIDERATION. THIS FACTUAL POSITION WA S UNDISPUTED. MOREOVER, THE SUPREME COURT, AS HAS BEEN RECORDED B Y THE LEARNED TRIBUNAL, IN THE CASE OF ALLIED MOTORS PVT. LTD. AND ALSO IN THE CASE OF ALOM EXTRUSIONS LTD., HAS ALREA DY DECIDED THAT THE AFORESAID PROVISION HAS RETROSPECT IVE APPLICATION. AGAIN, IN THE CASE REPORTED IN 82 ITR 570, THE SUPREME COURT HELD THAT THE PROVISION, WHICH HAS IN SERTED THE REMEDY TO MAKE THE PROVISION WORKABLE, REQUIRES TO BE TREATED WITH RETROSPECTIVE OPERATION SO THAT REASON ABLE DEDUCTION CAN BE GIVEN TO THE SECTION AS WELL. IN VIEW OF THE AUTHORITATIVE PRONOUNCEMENT OF THE S UPREME COURT, THIS COURT CANNOT DECIDE OTHERWISE. HENCE W E DISMISS THE APPEAL WITHOUT ANY ORDER AS TO COSTS. 6. NO CONTRARY DECISION IS BROUGHT TO OUR KNOWLEDGE . IN VIEW OF THE ABOVE, WE, RESPECTFULLY FOLLOWING THE DECISION OF H ON'BLE CALCUTTA HIGH COURT, HOLD THE AMENDMENT IN SECTION 40(A)(IA) BY T HE FINANCE ACT, 2010 TO BE OF RETROSPECTIVE NATURE AND, ACCORDINGLY , SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORE THE MATTER TO THE ASSESSING OFFICER. WE DIRECT HIM TO VERIFY WHETHER THE TAX D EDUCTED AT SOURCE IS PAID BEFORE THE DUE DATE OF FILING OF THE RETURN OF THE YEAR UNDER CONSIDERATION OR NOT. IF IT HAS ALREADY BEEN DEPOS ITED, THEN NO DISALLOWANCE UNDER SECTION 40(A)(IA) SHALL BE MADE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DEE MED TO BE ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2013. SD/- SD/- ( (( (A.D.JAIN A.D.JAIN A.D.JAIN A.D.JAIN) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 06.09.2013 VK. ITA-3357/DEL/2009 4 COPY FORWARDED TO: - 1. APPELLANT : M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) M/S BHIWANI COAL CARRIERS (P) LTD., LTD., LTD., LTD., C/O AJAY RELAN & ASSOCIATES, CHARTERED ACCOUNTANTS, C/O AJAY RELAN & ASSOCIATES, CHARTERED ACCOUNTANTS, C/O AJAY RELAN & ASSOCIATES, CHARTERED ACCOUNTANTS, C/O AJAY RELAN & ASSOCIATES, CHARTERED ACCOUNTANTS, 207 207 207 207- -- -A, PALCO HOUSE, 2162/T A, PALCO HOUSE, 2162/T A, PALCO HOUSE, 2162/T A, PALCO HOUSE, 2162/T- -- -10, 10, 10, 10, GURU ARJUN NAGAR, MAIN ROAD, WEST PATEL NAGAR, GURU ARJUN NAGAR, MAIN ROAD, WEST PATEL NAGAR, GURU ARJUN NAGAR, MAIN ROAD, WEST PATEL NAGAR, GURU ARJUN NAGAR, MAIN ROAD, WEST PATEL NAGAR, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 2. RESPONDENT : 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR