Ricardo Fatima Dias, V. The Income Tax Officer, Ward-2, Margao., Margao

ITA 41/PAN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2090 (ITAT-PANAJI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 17-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR S SUNDARESAN
• Assessee Lawyers: D E ROBINSON

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI , HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO S . 41 & 42 /P A N/201 6 (ASST. YEAR : 200 5 - 0 6 ) 1. MR. RECARDO FATIMA DIAS, MEERA BUILDING, PAJ I FOND, MARGAO GOA. PAN NO. ADHPD 2160 L VS. ITO, WARD - 2, MARGAO GOA . 2. MRS. NINETTE YVETTE DIAS, MEERA BUILDING, PAJI FOND, MARGAO GOA. PAN NO. ADHPD 2159 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.E. ROBINSON ADV. DEPARTMENT BY : DR. S. SUNDARESAN - DR DATE OF HEARING : 1 7 / 0 5 /201 6 . DATE OF PRONOUNCEMENT : 1 7 / 0 5 /201 6 . O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER THESE ARE THE APPEAL S FILED BY THE ASSESSEE S AGAINST THE SEPARATE ORDER S OF THE COMMISSIONER OF INCOME TAX (APPEALS) , PANAJI - 2 IN APPEAL NOS. 116 & 177/CIT(A) - 2/PNJ/2015 - 16 AND 264 & 263/MRG/07 - 08 , BOTH DATED 2 9 /0 1 /201 6 , FOR THE ASSESSMENT YEAR S 2005 - 06 . ITA NO.41/PAN/2016 IS AN APPEAL FILED BY MR. RECARDO FATIMA DIAS AND ITA NO. 42/PAN/2016 IS AN APPEAL FILED BY MRS. NINETTE YVETTE DIAS. 2. DR. S. SUNDARESAN , DEPARTMENTAL REPRESENTATIVE REPRESENTED ON BEHALF OF THE REVENUE AND SHRI D.E. ROBINSON, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE S . 2 ITA NO. 4 1 & 42 /P A N/201 6 3 . IT WAS THE SUBMISSION BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE ONLY ISSUE IN THE ASSESSEES APPEALS WAS AGAINST THE ACTION OF THE COMMISSIONER OF INCOME TAX (APPEALS) IN CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SEC. 40(A)(IA) IN RESPECT OF TWO PAYMENTS , ONE MADE TO ARCHITECT FOR AN AMOUNT OF 1,74,600/ - AND THE SECOND PAID TO THE TAX CONSUL T ANT MR. D.E. ROBINSON HIMSELF , FOR AN AMOUNT OF 50,000/ - . IT WAS THE SUBMISSION THAT THE SECOND PROVISO TO SECTION 40(A)(IA) WHICH IS INSERTED BY THE FINANCE ACT 01/04/201 3 HAD BEEN CLAIMED TO BE RETROSPECTIVE IN NATURE , INSOFAR AS IF THE RECIPIENTS HAVE PAID THE TAXES ON THE RECEIPTS, THEN NO DISALLOWANCE WAS CALLED FOR IN THE HANDS OF TH E ASSESSEE. IT WAS THE SUBMISSION THAT THE RETURN OF THE ARCHITECT MR. NADKARNI BINOTA WAS AT PAGE NOS. 2 TO 4 OF THE PAPER BOOK AND THE COPY OF THE RETURN OF MR. ROBINSON, ADVOCATE WAS AT PAGE NOS. 5 TO 8 OF THE PAPER BOOK . IT WAS THE SUBMISSION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE AMENDMENT BY THE FINANCE ACT, 201 2 WAS NOT RETROSPECTIVE , B U T PROSPECTIVE BY APPLYING THE RATIO LAID DOWN BY THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. SHYAM NARAYAN & B ROTHERS REPORTED IN 349 ITR 145 (BOM.) WHEREIN IT HAS BEEN HELD THAT THE AMENDMENT TO SECTION 40(A)(IA) BY THE FINANCE ACT, 201 0 W.E.F. 01/04/201 0 WAS PROSPECTIVE . IT WAS THE SUBMISSION BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE AMENDMENT BY THE FINANCE ACT, 2012 HAS NOT BEEN DECIDED BY THE HONBLE BOMBAY HIGH COURT AND THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP P. LTD . REPORTED IN 377 ITR 635 (DEL.) HAS HELD THAT THE AMENDMENT W AS RETROSPECTIVE IN NATURE. IT WAS THE FURTHER SUBMISSION TH A T THE RECIPIENTS HAVE PAID THE TAXES, NO DISALLOWANCE UNDER SECTION 40(A)(IA) WAS LIABLE TO HE MADE. IT WAS THE FURTHER SUBMISSION THAT THERE IS NO CONTRARY DECISION OF ANY OF THE HIGH COU RTS TO THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOWNSHIP P. LTD. (SUPRA) . 3 ITA NO. 4 1 & 42 /P A N/201 6 4 . IN REPLY, DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND THE COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, THE HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND MARK TOWNSHIP P. LTD. HAS CATEGORICALLY HELD THAT THE AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) BY THE INTRODUCTION OF THE SECOND PROVISO W.E.F. BY THE FINANCE ACT, 2012 IS RETROSPECTIVE IN NATURE . T H E D E C I S I O N O F T H E HONBLE B O M B A Y HIGH COURT I N T H E C A S E O F S H Y A M N A R A Y A N A N D B R O T H E R S (SUPRA) I S O N A C O M P L E T E L Y D I F F E R E N T A M E N D M E N T . CONSEQUENTLY, IF THE RECIPIENTS O F THE PAYMENTS MADE BY THE ASSESSEE , HAVE PAID THEIR TAXES ON THE RECEIPTS, THEN NO DISALLOWANCE CAN BE MADE IN THE H ANDS OF THE ASSESSEES. HOWEVER , FOR THE PURPOSE OF VERIFICATION AS TO WHETHER RECIPIENTS HAVE PAID THE TAXES , A S THIS ISSUE WAS NOT VERIFIED BY THE ASSESSING OFFICER , THIS ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFICATION AS TO WHETH ER THE RECIPIENTS HAVE PAID THE TAXES ON THE RECEIPTS OF THE ASSESSEE. THE ASSESSEE SHALL PRODUCE SUCH EVIDENCE BEFORE THE ASSESSING OFFICER. IF THE RECIPIENTS HAVE PAID THE TAXES AND SAME IS PROVED BY THE ASSESSEE, THEN NO DISALLOWANCE ON THIS COUNT SHA LL BE MADE UNDER SECTION 40(A)(IA). 6 . IN THE RESULT, APPEALS OF THE ASSESSEES ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE HEARING ON TUESDAY , THE 1 7 TH DAY OF MAY , 201 6 AT GOA . S D / - S D / - (N.S.SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 7 TH MAY , 201 6 . 4 ITA NO. 4 1 & 42 /P A N/201 6 VR/ - COPY TO: 1 . THE ASSESSEE. A) MR. RECARDO FATIMA DIAS B) MRS. NINETTE YVETTE DIAS 2 . THE REVENUE. 3 . THE CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., PANAJI