Sh. Balbir Singh, New Delhi V. ITO, New Delhi

ITA 3479/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65444 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 02-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIRTHI LAL
• Assessee Lawyers: GOPAL NATHANI
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: A NEW DELHI BEFORE SHRI AD JAIN, JM AND SHRI J.SUDHAKAR REDDY, A.M. ITA NO: 3479/DEL/2012 ASSESSMENT YEAR : - 2008-09 SHRI BALBIR SINGH VS. ITO, WARD 12(1) 73 A, HAUZ KHAS VILLAGE NEW DELHI NEW DELHI 16 PAN: AATPS 7115 D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GOPAL NATHANI, C.A. RESPONDENT BY : SHRI PIRTHILAL, SR.D.R. O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-V, NEW DEL HI DT. 9.4.2012 PERTAINING TO THE ASSESSMENT YEAR 2008-09. 2. THE FACTS OF THE CASE ARE BROUGHT OUT BY THE A.O . AT PAGE 1 OF HIS ORDER WHICH IS EXTRACTED FOR READY REFERENCE. DURING THE COURSE OF PROCEEDINGS, IT WAS NOTICED T HAT TDS DEDUCTED IN THE MONTHS OF JANUARY & FEB.2008 HAD NO T BEEN DEPOSITED IN THE GOVT. ACCOUNT BEFORE THE CLOSE OF THE FINANCIAL YEAR. THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE SAME BE NOT DISALLOWED IN VIEW OF THE PROVISIONS OF S.40(A) (IA) OF THE INCOME TAX ACT, 1961. IN REPLY VIDE LETTER DT. 16. 12.2010, 21.12.2010, IT HAS BEEN SUBMITTED THAT TDS AMOUNTS THOUGH PAID LATE I.E. AFTER THE END OF THE FINANCIAL YEAR BUT WERE PAID BEFORE THE DUE DATE OF FILING OF THE INCOME TAX RET URN AND HENCE 2 DISALLOWANCE UNDER SUB CLAUSE (IA) OF CLAUSE (A) OF SECTION 40 IS NOT ATTRACTED IN THIS CASE. 2. ON APPEAL THE FIRST APPELLATE AUTHORITY AGREED W ITH THE FINDINGS OF THE ASSESSING OFFICER THAT THE AMENDED PROVISIONS H AVE NO RETROSPECTIVE APPLICATION. AGGRIEVED THE ASSESSEE IS IN APPEAL O N THE FOLLOWING GROUNDS. 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS)-X V, NEW DELHI HAS GROSSLY ERRED ON FACTS AND IN THE CIRCUMS TANCES OF THE CASE IN CONFIRMING THE ADDITION OF RS.15,13,609/- U NDER SECTION 40(A) (IA) EVEN WHEN THE TDS THEREON FOR RS.31,453/ - IS PAID TO THE GOVERNMENT ACCOUNT ON 8/10.4.2008 I.E. WELL BEF ORE THE DUE DATE OF RETURN SPECIFIED IN SUB SECTION (1) OF SECT ION 139. 2. THAT THE COMMISSIONER OF INCOME TAX (APPEALS)-XV , NEW DELHI HAS GROSSLY ERRED ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN DECLINING THE APPELLANTS PLEA THAT THE AMENDMENT B ROUGHT ABOUT BY THE FINANCE ACT, 2010 TO S.40(A)(IA) OF THE INCO ME TAX ACT, 1961, WITH EFFECT FROM APRIL 1,2010, IS REMEDIAL/CU RATIVE IN NATURE. 3. WE HAVE HEARD MR.GOPAL NATHANI, C.A. LD.COUNSEL FOR THE ASSESEE AND SHRI PIRTHI LAL, SR.D.R. ON BEHALF OF THE REVEN UE. 4. THE DELHI H BENCH OF THE TRIBUNAL IN THE CASE OF TARU LEADING EDGE P.LTD. IN ITA NO. 3592/DEL/2011 AT PARA 5 AND 5.1 HELD AS FOLLOWS. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUG H THE FACTS OF THE CASE. INDISPUTABLY, THE ASSESSEE DEPOSITED TDS DEDUCTED FROM AN AMOUNT OF RS.16,22,846/- ON 11.4.2008 I.E. BEFOR E THE DUE DATE OF FILING OF RETURN. THE ISSUE BEFORE US IN THIS C ASE IS AS TO WHETHER AMENDMENT MADE TO THE PROVISIONS OF S.40(A)(IA) OF THE INCOME TAX ACT, 1961 BY THE FINANCE ACT, 2010, WOULD APPLY WIT H RETROSPECTIVE EFFECT FROM 1.4.2005 OR WEF 1.4.2010. WE FIND THAT VARIOUS CO- ORDINATE BENCHES OF THE ITAT IN THEIR DECISION DT. 16.12.2010 IN KULWANT SINGH VS IYO IN ITA 2191/AHMD/2008 FOR THE 3 ASSESSMENT YEAR 2005-06, DECISION DT. 22.9.2010 IS IN THE CASE OF BANSAL PARIVAHAN INDIA P.LTD. VS ITO IN ITA 2355/MU M/2010 FOR THE ASSESSMENT YEAR 2006-07 AND THE DECISION DT. 3. 12.2010 IN THE CASE OF SHRI KANUBHAI RAMJIBHAI MAKWANA IN ITA 3983/AHD/2008 FOR ASSESSMENT YEAR 2005-06 HELD THAT THE SAID AMENDMENT WOULD OPERATE RETROSPECTIVELY WEF 1.4.200 5. SUBSEQUENTLY, SPECIAL BENCH IN BHARATI SHIPYARD LTD . VS DCIT, 13 TAXMANN.COM 101 (MUM)(SB) VIDE THEIR ORDER DT. 9.9. 2011 HELD THAT THE AFORESAID AMENDMENT CARRIED OUT BY THE FINANCE ACT, 2010 WAS APPLICABLE PROSPECTIVELY. LATER, HONBLE CALCU TTA HIGH COURT IN THEIR DECISION DT. 23.11.2011 IN ITA 302 OF 2011 GA 3200/2011 IN CIT VS VIRGIN CREATIONS, HELD THAT THE AMENDMENT TO THE PROVISIONS OF S.40(A)(IA) OF THE INCOME TAX ACT, 19 61 BY THE FINANCE ACT, 2010 AS AFORESAID WAS RETROSPECTIVE FROM 1.4.2 005. THE LD.AR POINTED OUT THAT THIS IS THE SOLE DECISION RE NDERED BY A HIGH COURT AT THE MOMENT ON THE ISSUE. FOLLOWING THE VI EW IN THIS DECISION, COORDINATE BENCH IN THEIR DECISION DT. 11 .4.2012 IN PIYISH C MEHTA VS ACIT NO.1321/MUM/2009 FOR THE ASSESSMENT YEAR 2005-06 AND THE DECISION DT. 10.5.2012 IN ITA 717/B ANG/2011 FOR THE ASSESSMENT YEAR 2008-09 IN ACIT VS MK GURUMURTH Y ALSO HELD THAT THE AFORESAID AMENDMENT IS APPLICABLE RET ROSPECTIVELY WEF 1.4.2005. 5.1. IN VIEW OF THE FOREGOING, FOLLOWING THE VIEW T AKEN IN THE AFORESAID DECISION OF THE HONBLE CALCUTTA HIGH COU RT IN VIRGIN CREATIONS (SUPRA), WE ARE OF THE OPINION THAT THE A MENDMENT TO THE PROVISIONS OF S.40(A)(IA) OF THE INCOME TAX ACT, 19 61 BY THE FINANCE ACT, 2010, IS APPLICABLE RETROSPECTIVELY FROM 1.4 .2005. CONSEQUENTLY, ANY PAYMENT OF TAX DEDUCTED AT SOURCE ON OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME UNDER SECT ION 139(1)OF THE INCOME TAX ACT, 1961, CANNOT BE DISALLOWED IN TERMS OF PROVISIONS 4 OF S.40(A)(IA) OF THE INCOME TAX ACT, 1961. INDISP UTABLY, IN THE INSTANT CASE THE ASSESSEE DEPOSITED THE TAX DEDUCTE D AT SOURCE ON 11.4.2008 I.E. BEFORE THE DUE DATE FOR FILING RETUR N OF INCOME UNDER SECTION 139(1) OF THE INCOME TAX ACT, 1961. IN THI S SITUATION, ESPECIALLY WHEN THE REVENUE HAVE NOT BROUGHT TO OUR NOTICE ANY CONTRARY DECISION, WE ARE NOT INCLINED TO INTERFER E WITH THE FINDINGS OF THE LD.CIT(A). IN VIEW THEREOF, GROUND NO.1 OF THE APPEAL IS DISMISSED. RESPECTFULLY FOLLOWING THE SAME WE ALLOW THIS APPEA L OF THE ASSESSEE. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER,2012. SD/- SD/- (A.D. JAIN) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: THE 17 TH SEPTEMBER, 2012 *MANGA 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR 1. DATE OF DICTATION: 2. DRAFT PLACED BEFORE THE AUTHOR ON: 3. DRAFT PROPOSED AND PLACED BEFORE SECOND MEMBER ON: 4. DRAFT DISCUSSED/APPROVED BY THE SECOND MEMBER ON: /09 5. APPROVED DRAFT CAME TO SR.P.S. ON: /09 6. DATE OF PRONOUNCEMENT : /09 7. FILE SENT TO BENCH CLERK ON : 8. DATE ON WHICH FILE GIVEN TO HEAD CLERK ON: 9. DATE OF DISPATCHING THE ORDER ON : 6 .