ITO 9(2)(4), MUMBAI V. PARAG ENGINEERING PRODUCTS P. LTD, MUMBAI

ITA 5558/MUM/2013

• Counselvise Citation: 555819914 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 26-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHLIP
• Assessee Lawyers: G S LALKA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , ./ I.T.A. NO.5558/MUM/2013 ( / ASSESSMENT YEAR :2007-08) INCOME TAX OFFICER, WARD 9(2)(4), ROOM NO.261, 6 TH FLOOR, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 / VS. M/S PARAG ENGINEERING PRODUCTS PVT LTD., 121, ABCD GOVT. INDUSTRIAL ESTATE CHARKOP, KANDIVALI8 (W), MUMBAI-400067 ( / APPELLANT) .. ( ! / RESPONDENT) ./ #$ ./ PAN/GIRNO.:AACCP2592D % / APPELLANT BY : SHRI NEIL PHLIP. ! & % /RESPONDENT BY : SHRI G S LALKA ' ( & ) * / DATE OF HEARING : 31.12.2014 +, & ) * /DATE OF PRONOUNCEMENT : .01.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 28-06- 2013 PASSED BY LD CIT(A)-20, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2007-08. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN DELETING THE ADDITION MADE U/S 40(A)(IA) OF THE ACT. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS FAILED TO PAY THE TDS AMOUNT WITHIN THE DUE DATE PRESCRIBED UNDER THE ACT. HENCE, THE AO DISALLOWED THE EXPENDITURE OF RS.9,08,221/- RELATING TO THE BELATED PAYMENT OF TD S AMOUNT BY INVOKING THE PROVISIONS OF SEC. 40(A)(IA) OF THE ACT. BEFORE TH E LD CIT(A), THE ASSESSEE SUBMITTED THAT THE TDS AMOUNT HAS BEEN PAID BEFORE THE DUE DATE PRESCRIBED FOR FILING RETURN OF INCOME. IT WAS FURTHER SUBMITTED THAT THE AMENDMENT BROUGHT INTO THE SEC. 40(A)(IA) BY FINANCE ACT 2010 PROVIDING FO R DEDUCTION OF THE EXPENDITURE ITA NO.5558/M/13 2 IF THE TDS PAYMENT IS MADE BEFORE THE DUE DATE FOR FILING RETURN OF INCOME IS HELD TO BE RETROSPECTIVE IN NATURE IN THE FOLLOWING CASE S:- (A) PIYUSH C MEHTA (ITA NO.1321/MUM/2009) (B) ITO VS. VIRGIN CREATIONS (CALCUTTA HC ITA N O.302 OF 2011). THE LD CIT(A) WAS CONVINCED WITH THE SAME AND HE FU RTHER NOTICED THAT THE HONBLE KARNATAKA HIGH COURT HAS EXPRESSED IDENTIC AL VIEW IN THE CASE OF ITO VS. ANIL KUMAR AND CO. (2013)(354 ITR 170)(KAR). S INCE THE ASSESSEE HAD PAID THE TDS AMOUNT BEFORE THE DUE DATE PRESCRIBED FOR F ILING RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE LD CIT(A) DELETED THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. 3. AT THE TIME OF HEARING, THE LD A.R SUBMITTED THAT THE ORDER OF LD CIT(A) IS REQUIRED TO BE SUSTAINED, SINCE THE ASSESSEE HAD PA ID THE TDS AMOUNT BEFORE THE DUE DATE PRESCRIBED FOR FILING RETURN OF INCOME . HE FURTHER SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT, IN THE CASE OF CIT VS. J.K. CONSTRUCTION CO. (2014)(361 ITR 181), HAS EXPRESSED THE VIEW THAT TH E AMENDMENT BROUGHT IN BY THE FINANCE ACT 2010 SHOULD BE CONSIDERED AS EFFECT IVE FROM 1.4.2005. 4. THUS, WE NOTICE THAT THE LD CIT(A) HAS FOLLOWE D THE DECISION RENDERED BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF VIRG IN CREATIONS (SUPRA) AND OTHER HIGH COURTS AND TRIBUNALS, WHEREIN IT HAS BEEN HELD THAT THE AMENDMENT BROUGHT IN BY THE FINANCE ACT 2010 IS RETROSPECTIVE IN NATU RE. HENCE, IF THE AMENDED PROVISIONS ARE APPLIED TO THE FACTS OF THE INSTANT CASE, THERE WAS NO REQUIREMENT TO MAKE DISALLOWANCE U/S 40(A)(IA) OF THE ACT. UND ER THESE SET OF FACTS, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD CIT(A). 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OP EN COURT ON 7TH JAN,2015 . +, ' - ./ 0 1 7 TH JAN 2015 , & 2( 3 SD SD ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER . ' ( MUMBAI: 7TH JAN, 2015. ITA NO.5558/M/13 3 . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. ' 7) ( ) / THE CIT(A)- CONCERNED 4. ' 7) / CIT CONCERNED 5. 6. 89 2 ): , * : , . ' ( / DR, ITAT, MUMBAI CONCERNED 2 ; < ( / GUARD FILE. = ' / BY ORDER, TRUE COPY > # (ASSTT. REGISTRAR) * : , . ' ( /ITAT, MUMBAI