MADHURI SURESH RUNGTA, MUMBAI V. ACIT - CIRCLE- 26(2), MUMBAI

ITA 3746/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7125 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: CHAITANYA ANJARIA
• Keywords: TDS
• Section: 40(a)(ia); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER ITA NO. 3746 / MUM . /2018 ( ASSESSMENT YEAR : 20 09 10 ) MADHURI SURESH RUNGTA K.P. ASSOCIATE, 222 8 GODIKA HOUSE, SION (EAST) MUMBAI 400 022 PAN AACPR4294F . APPELLANT V/S ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 26(2), MUMBAI . RESPONDENT REVENUE BY : SHRI KETAN VIJANI ASSESSEE BY : SHRI CHAITANYA ANJARIA DATE OF HEARING 18 .0 4 .201 9 DATE OF ORDER 30.0 4 .2019 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE CHALLENGING THE ORDER DATED 29 TH JANUARY 2018, PASSED BY THE LEARNED COMMISSIONER (APPEALS) 38, MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009 10. 2 . IN GROUND NO.1, THE ASSESSEE HAS CHALLENGED VALIDITY OF RE OPENING OF ASSESSMENT UNDER SECTION 147 OF THE INCOME - TAX ACT, 1961 (FOR SHORT 'THE ACT' ) . W HEREAS IN GROUND NO.2, THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT. 2 MADHURI SURESH RUNGTA 3 . AT THE OUTSET, I PROPOSE TO DEAL WITH GROUND NO.2, CHALLENGING THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT. 4 . BRIEF FACTS ARE, THE AS SESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED HER RETURN OF INCOME ON 29 TH SEPTEMBER 2009, DECLARING TOTAL INCOME OF ` 33,03,490. IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER WHILE VERIFYING THE AUDIT REPORT FOUND THAT AN AMOUNT OF ` 1,86,662, BEING TDS ON PAYMENT OF COMMISSION WAS PAID TO THE GOVERNMENT ACCOUNT ON 29 TH SEPTEMBER 2009. ON FURTHER VERIFICATION OF DETAILS OF PAYMENT MADE BY THE ASSESSEE AND TAX DEDUCTED THEREON, THE ASSESSING OFFICER FOUN D THAT ON COMMISSION PAYMENT OF ` 14,27,668, THOUGH, THE ASSESSEE HAD DEDUCTED TAX AT SOURCE BUT THE TDS AMOUNT WAS NOT PAID ON/OR BEFORE THE DUE DATE . ACCORDINGLY, INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT, HE DISALLOWED THE COMMISSION PAYME NT OF ` 14,27,6683 5 . THOUGH, THE ASSESSEE CHALLENGED THE AFORESAID DISALLOWANCE BEFORE LEARNED COMMISSIONER (APPEALS), HOWEVER, HE ALSO SUSTAINED THE DISALLOWANCE. 6 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , AS PER THE ASSESSING OFFICERS OWN ADMISSIO N, THE TDS AMOUNT WAS PAID TO GOVERNMENT ACCOUNT ON 29 TH MAY 2009, WHICH IS MUCH BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. 3 MADHURI SURESH RUNGTA THUS, HE SUBMITTED , AS PER THE FIRST PROVISO TO SECTION 40(A)(IA) OF THE ACT, NO DISALLOWAN CE COULD BE MADE. IN SUPPORT OF SUCH CONTENTION, THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN CIT V/S CALCUTTA EXPORT CO., [2018] 404 ITR 654 (SC). 7 . LEARNED DEPARTMENTAL REPRESENTATIVE AGREED THAT THE ISSUE IS COVERED BY THE DECISION OF THE HON'BLE SUPREME COURT. 8 . I HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS EVIDENT , THE ASSESSING OFFICER HAS MADE THE IMPUGNED DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT , SINCE , THE ASSESSEE H AS PAID THE TDS AMOUNT ON 29 TH MAY 2009, I.E., AFTER THE END OF FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER DISPUTE. HOWEVER, THE FIRST PROVISO TO SECTION 40(A)(IA) OF THE ACT WHICH WAS BROUGHT TO THE STATUTE BY FINANCE ACT, 2010, W.E.F. 1 ST APRIL 201 0, MAKES IT CLEAR THAT NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT CAN BE MADE IF THE TDS AMOUNT IS PAID TO THE GOVERNMENT ACCOUNT BEFORE THE DUE DATE OF FILING OF RETURN OF IN COME FOR THAT ASSESSMENT YEAR AS PROVIDED UNDER SECTION 139(1) OF TH E ACT. IT IS NOW WELL SETTLED THAT THE AFORESAID AMENDMENT BROUGHT TO SECTION 40(A)(IA) OF THE ACT WILL APPLY RETROSPECTIVELY. EVEN , IN THE DECISION OF CALCUTTA EXPORT CO. (SUPRA), THE HON'BLE SUPREME COURT HAS EXPRESSED THE AFORESAID VIEW. THAT BEING THE CASE, THE DISALLOWANCE MADE UNDER SECTION 40(A)(IA) OF 4 MADHURI SURESH RUNGTA THE ACT DESERVES TO BE DELETED. ACCORDINGLY, I DO SO. THIS GROUND IS ALLOWED. 9 . IN VIEW OF MY DECISION IN GROUND NO.2, THE ISSUE RAISED IN GROUND NO.1, HAS BECOME ACADEMIC, HENCE, NOT REQUIRED TO BE ADJUDICATED. 10 . IN THE RESULT, APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.04.2019 SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 30.04.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI