DELTA IRON & STEEL CO. P LTD, MUMBAI V. ACIT CEN CIR 10, MUMBAI

ITA 4797/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9304 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 11-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 10-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: HARESH R JOSHI
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO. 4797/MUM/2010 (ASSESSMENT YEAR: 2007-08) M/S. DELTA IRON & STEEL CO. P. LTD. ACIT, CENTRAL C IRCLE 10 210, SANT TUKARAM ROAD MUMBAI CARNAC BUNDER, MUMBAI 400009 VS. PAN - AAACD 8450 A APPELLANT RESPONDENT APPELLANT BY: SHRI HARESH R. JOSHI RESPONDENT BY: SHRI A.B. KOLI DATE OF HEARING: 12.12.2012 DATE OF PRONOUNCEMENT: 12.12.2012 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL, FIELD AT THE INSTANCE OF THE ASSESSEE, IS DIRECTED AGAINST THE ORDER DATED 26.04.2010 PASSED BY THE CIT(A) 37, M UMBAI AND IT PERTAINS TO A.Y. 2007-08. 2. DISALLOWANCE MADE BY THE AO UNDER SECTION 40(A) OF THE ACT, HAVING BEEN AFFIRMED BY THE LEARNED CIT(A), ASSESSEE COMPA NY IS IN APPEAL BEFORE US. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE TAX AUDIT REPORT IT WAS CLEARLY SPECIFIED THAT THE ASSESSEE D EDUCTED TAX AT SOURCE BEFORE THE END OF THE ACCOUNTING YEAR AND PAID THE SAME ON 18.06.2007, WHICH FALLS BEFORE THE DUE DATE SPECIFIED IN SUB-SE CTION (1) OF SECTION 139 OF THE ACT. THE LEARNED CIT(A) OBSERVED THAT THE AUDIT OR HAD GIVEN A SPEAKING CERTIFICATE TO STATE THAT THE AMOUNT DEDUCTED AND D EPOSITED ON 18.06.2007 IS ATTRACTED BY SECTION 40(A) OF THE ACT AND HENCE THE CLAIM OF THE ASSESSEE IS NOT PERMISSIBLE. 4. ON THE OTHER HAND, THE LEARNED COUNSEL SUBMITTED TH AT BY THE TIME THE CERTIFICATE WAS ISSUED, THE LAW, AS IT WAS EXISTING AT THE RELEVANT POINT OF ITA NO. 4797/MUM/2010 M/S. DELTA IRON & STEEL CO. P. LTD. 2 TIME, WAS NOT PERMITTING THE ASSESSEE TO CLAIM THE BENEFIT IN THE EVENT OF PAYMENT OF TDS AMOUNT BEFORE THE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT, WHEREAS BY VIRTUE OF THE AMENDMENT BY F INANCE ACT, 2008, W.E.F. 01.04.2005, IF TAX WAS DEDUCTED IN TIME AND PAID BE FORE THE DUE DATE SPECIFIED FOR FILING THE RETURN OF INCOME UNDER SEC TION 139(1) OF THE ACT SUCH PAYMENTS ARE NOT ATTRACTED BY THE PROVISIONS OF SEC TION 40(A)(IA) OF THE ACT. HE FURNISHED COPY OF THE TAX AUDITORS CERTIFICATE WHEREIN THE DATES OF DEDUCTION AS WELL AS DATES OF PAYMENTS WERE CLEARLY SPECIFIED. NO DOUBT, IN THE CERTIFICATE IT WAS SHOWN THAT THE AMOUNT IS INA DMISSIBLE UNDER SECTION 40(A) OF THE ACT, PRESUMABLY GOING BY THE LAW APPLI CABLE AT THE RELEVANT POINT OF TIME BUT THE FACT REMAINS THAT AFTER THE RETROSP ECTIVE AMENDMENT THE TAX AUTHORITIES OUGHT TO HAVE CONSIDERED THE ISSUE WITH REFERENCE TO THE AMENDED PROVISIONS. 5. WE HAVE HEARD THE LEARNED D.R. ALSO IN THIS REGARD AND CAREFULLY PERUSED THE RECORD. THE CERTIFICATE ISSUED BY THE A UDITOR CLEARLY SPECIFIES THE DATES OF DEDUCTION AS WELL AS DATES OF PAYMENTS, WH ICH COULD HAVE EASILY BEEN VERIFIED BY THE AO AS WELL AS THE CIT(A) WITHO UT GOING BY THE OPINION EXPRESSED BY THE CHARTERED ACCOUNTANT, SINCE THE TA X AUTHORITIES ARE DUTY BOUND TO CONSIDER THE ISSUE IN ACCORDANCE WITH LAW. HAVING REGARD TO THE FACT THAT TAX WAS DEDUCTED AND PAID BEFORE THE DUE DATE FOR FILING THE RETURN, WE SET ASIDE THE MATTER TO THE FILE OF THE AO WITH A DIRECTION TO RE-VERIFY THE FACTS AND IF PAYMENT IS MADE BEFORE THE DUE DATE FO R FILING THE RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT, SECTION 40( A) OF THE INCOME TAX ACT CANNOT BE INVOKED. WE DIRECT THE AO ACCORDINGLY. 6. IN THE RESULT, AS PRONOUNCED THE IN OPEN COURT, THE APPEAL FILED BY THE ASSESSEE COMPANY IS TREATED AS ALLOWED FOR STATISTI CAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DECEMBER, 2012. SD/- SD/- (SANJAY ARORA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 12 TH DECEMBER, 2012 ITA NO. 4797/MUM/2010 M/S. DELTA IRON & STEEL CO. P. LTD. 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 37, MUMBAI 4. THE CIT CENTRAL-I, MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.