DCIT, New Delhi V. M/s. Bhanot Construction and Housing Ltd., New Delhi

ITA 4718/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3651 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-05-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 28-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO. 4718 /DEL/201 4 A.Y. : 2011-12 DCIT, CIRCLE 2(1), NEW DELHI ROOM NO. 398-D, C.R. BUILDING, NEW DELHI VS. M/S BHANOT CONSTRUCTION AND HOUSING LTD., 310-311, BHANOT CORNER, 1-2, PAMPOSH ENCLAVE, GREATER KAILASH-I, NEW DELHI 110 048 (PAN: AAACB0949A) (ASSESSEE) (RESPONDENT) REVENUE BY : SH. ARUN KUMAR YADAV, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THIS APPEAL AGAINST THE IMP UGNED ORDER DATED 20.06.2014 OF THE LD. CIT(A)-V, NEW DELHI RELE VANT TO ASSESSMENT YEAR 2011-12. 2. THE FOLLOWING ARE THE GROUNDS RAISED BY THE REVEN UE- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 17,00,20,000/- MADE BY THE AO BY DISALLOWING THE AMOUNT U/S. 40(A)(IA) 2 AS TDS ON THE SAME WAS DEPOSITED AFTER THE DUE DATE OF FILING OF RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT, 1961. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE COMP ANY IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION, REAL ES TATE, SALE- PURCHASE AND INFRASTRUCTURE DEVELOPMENT. DURING THE YE AR UNDER CONSIDERATION THE ASSESSEE COMPANY RECEIVED CONTRACTU AL RECEIPTS OF RS. 94,92,32,145/- AND MADE PAYMENT TO SUB-CONTRACTOR S FOR AN AMOUNT OF RS. 91,43,51,166/- WHICH INCLUDED PAYMENT M ADE OF RS.17,00,20,000/- TO ONE M/S ARCH INFRA PROJECTS NIR MAN PVT. LTD. THE A.O. OBSERVED THAT THOUGH ASSESSEE COMPANY HAD D EDUCTED TAX AMOUNTING TO RS.34,00,400/- ON 03-10-2011 ON ABOVE PA YMENTS MADE TO M/S. ARCH INFRA PROJECTS NIRMAN PRIVATE LIMITE D, HOWEVER, THE SAME WAS DEPOSITED ON 03.10.2011 AND WAS THEREBY LATE DEPOSIT, WHICH IS AFTER THE DUE DATE OF FILING OF RETU RN U/S 139(1) I.E. 30-09-2011. ACCORDINGLY, THE A.O. INVOKED THE PROVISI ONS OF SEC. 40(A)(IA) OF THE INCOME TAX ACT AND MADE THE IMPUGNED A DDITION OF RS. 17,00,20,000/- AND ASSESSED THE INCOME OF THE A SSESSEE AT RS. 18,35,31,330/- U/S. 143(3) OF THE I.T. ACT, 1961 V IDE ORDER DATED 3 07.3.2014. AGGRIEVED WITH THE ADDITION MADE THE ASSE SSEE FILED THE APPEAL BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 20.6.2014 HAS DELETED THE ADDITION IN DISPUTE AND A LLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. 5. IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WA S SENT BY THE REGISTERED AD POST, IN SPITE OF THE SAME, ASSESSEE, NOR ITS AUTHORIZED REPRESENTATIVE APPEARED TO PROSECUTE THE MATTE R IN DISPUTE, NOR FILED ANY APPLICATION FOR ADJOURNMENT. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE I SSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THA T NO USEFUL PURPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND A GAIN TO THE ASSESSEE, THEREFORE, WE ARE DECIDING THE PRESENT AP PEAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. WE HAVE HEARD THE LD. DR AND PERUSED THE RELEVANT RECORDS, ESPECIALLY THE IMPUGNED ORDER. WE FIND THAT TDS DEDU CTED BY THE ASSESSEE FOR RS. 34,00,400/- ON ACCOUNT OF PAYMENT O F RS. 17,00,20,000/- TO M/S ARCH INFRA PROJECTS NIRMAN PRIVATE LTD. WAS DEPOSITED IN THE GOVERNMENT ACCOUNT ON 03.10.2011, WHICH IN 4 CASE OF THE ASSESSEE WAS BEYOND THE DUE DATE OF FIL ING OF RETURN OF INCOME FOR A.Y. 2011-12, BUT THEN THE RIGOR OF THE AC T FOR DISALLOWANCE OF PAYMENT IN SUCH CASES AS MANDATED U/S . 40(A)(IA) HAVE BEEN SOFTENED IN TERMS OF FIRST PROVISO TO SECTI ON 201 OF THE I.T. ACT (WITH EFFECT FROM 01.07.2012) READ WITH SE COND PROVISO TO SECTION 40(A)(IA) (WITH EFFECT FROM 01.04.2013). WE FU RTHER NOTE THAT THESE AMENDMENTS ARE STRICTLY SPEAKING NOT RELATABLE TO ASSESSMENT YEAR 2011-12, TO WHICH THE CASE OF THE ASSE SSEE PERTAINS, BUT THEN CONSIDERING THE FACT THAT IT IS A BE NEFICIAL LEGISLATION, THE ABOVE PROVISIONS SHOULD IN THE INTE REST OF JUSTICE BE CONSIDERED AS BEING DECLARATIVE AND CURATIVE IN NATUR E AND CONSEQUENTLY BE TREATED AS HAVING RETROSPECTIVE EFFECT FROM 01.04.2005 WHICH IS THE DATE FROM WHICH SUB CLAUSE (IA) OF SECTION 40(A) WAS INSERTED BY FINANCE ACT, 2004. IN FACT BY TREATING THE ABOVE LEGISLATION AS DECLARATORY AND THEREFORE RETROS PECTIVE, IT IS THE INTENTION OF THE LEGISLATURE WHICH IS BEING FURTHERED A ND THAT THE SAME WOULD NOT RUN COUNTER TO THE SPIRIT OF THE ENACTMEN T. IN THIS CONNECTION, RELIANCE WAS PLACED BEFORE THE LD. CIT(A ) ON THE DECISION OF HON'BLE ITAT IN RAJEEV KUMAR AGARWAL VS . ACIT ITA NO. 337/AGRA/2013 DATED 29.05.2014. NOW, AS IN THE FACT S OF THIS CASE IT HAS ALREADY BEEN CONFIRMED THROUGH THE A.O. OF THE RECIPIENT OF PAYMENT I.E. M/S ARCH INFRA PROJECTS NIRMAN PRIVATE LTD. THAT THEY 5 HAVE ACCOUNTED FOR THE RECEIPTS FROM THE ASSESSEE FOR R S. 17,00,20,000/- IN THEIR RETURN OF INCOME FOR A.Y. 20 11-12, WHICH HAVE BEEN FILED ON 30.09.2011 AND ON WHICH TAXES HAV E BEEN PAID, AS PER THE COPY OF ACKNOWLEDGMENT. FURTHER, EVEN THE ASSESSEE HAS FILED THE CERTIFICATE AS REQUIRED UNDER THE FIRST PROVI SO TO SECTION 201. CONSIDERING ALL THE ABOVE DISCUSSION IN TOTALITY TH E ADDITION MADE FOR RS. 17,00,20,000/- WAS RIGHTLY DELETED BY THE LD. CIT(A), WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, HEN CE, WE UPHOLD THE ACTION OF THE LD. CIT(A) AND REJECT THE GROUND R AISED BY THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T STANDS DISMISSED. ORDER PRO NOUNCED ON 16/11/2017. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE16/11/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHE S