ITO, Jaipur V. GEM BUILDERS, Jaipur

ITA 633/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5610 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 18-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Assessee Lawyers: MANISH AGARWAL C A KTLO DH LS

Judgement Text

ITA NO. 633/JP/14 ITO WARD 2(4), JAIPUR VS. M/S GEM BUILDER, JAIPUR 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAI PUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA-@ ITA NO. 633/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR 2006-07 THE ITO,WARD 2(4), JAIPUR CUKE VS. M/S GEM BUILDERS 14, AMBEHWEAR COLONY, NEW SANGANER ROAD, JAIPUR ````````````````````LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO AAEFG 2122K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (C.A.) KTLO DH VKSJ LS@ REVENUE BY SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04/12/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06 /01/2016 VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-I, JAIPUR DATED 15.07.2014 WHEREIN THE REVENUE HAS TAK EN THE FOLLOWING GROUND OF APPEAL. (I). WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS.17, 78,495/-, MADE BY AO ON ACCOUNT OF DISALLOWANCE OF LABOUR EXPENSES U/S 40(A)(IA) . (II). WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN HOLDING THAT AMENDMENT TO THE PROVISIONS OF SECTION 40(A)(IA) OF THE INCOME TAX ACT,2010 IS RET ROSPECTIVE W.E.F. 01.04.2005. 2. BRIEF FACTS PERTAINING TO THIS GROUND OF APPEAL ARE THAT, DURING THE YEAR UNDER APPEAL, THE ASSESSEE HAD EXECUTED CERTAIN WO RK IN RESPECT OF WHICH, IT HAS ITA NO. 633/JP/14 ITO WARD 2(4), JAIPUR VS. M/S GEM BUILDER, JAIPUR 2 MADE LABOUR PAYMENTS TO TWO PERSONS NAMELY, SHRI HA NUMAN SAHAY AND SHRI NAWAL KISHORE GUPTA, AND HAS DEDUCTED DUE TAX THERE ON. THE TAX SO DEDUCTED WAS DEPOSITED BY THE ASSESSEE TO THE CREDIT OF CENT RAL GOVERNMENT ON 3.06.2006 I.E. AFTER THE END OF THE FINANCIAL YEAR, BUT BEFO RE THE EXPIRY OF DUE DATE OF FILING OF RETURN OF INCOME I.E. 31.10.2006. THE AO DISAL LOWED THE PAYMENT SO MADE U/S 40(A)(IA) ON THE GROUND THAT THE TDS DEDUCTED T HEREON WAS NOT DEPOSITED BEFORE THE END OF THE FINANCIAL YEAR. 2.1 DURING THE COURSE OF HEARING, THE LD. AR BROUGH T TO THE NOTICE OF THE BENCH THAT THE ISSUE UNDER CONSIDERATION STANDS CO VERED IN FAVOUR OF THE ASSESEE BY RECENT DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. HARISH CHAND AHUJA 280 CTR 403 WHEREIN THE HONBLE RAJASTHAN HIGH COURT HAS AGREED WITH THE DECISION OF HONBLE GUJAR AT HIGH COURT IN THE CASE OF OM PRAKASH CHOUDHURY IN ITA NO. 412 OF 2013 WHERE T HE RELEVANT FINDING IS CONTAINED IN PARA 17 OF ITS ORDER WHICH READS AS U NDER: THE CORE ISSUE AS TO WHETHER THE AMENDMENT MADE BY THE FINANCE ACT 2010 TO SECTION 40(A)(IA) OF THE ACT IS RETROSPECTI VE FROM THE DATE OF INSERTION OF THE PROVISION I.E. 1 ST APRIL 2005 THEREFORE NEEDS TO BE ANSWERED IN AFFIRMATION. IT CAN BE SEEN THAT THE A MENDMENT MADE BY THE FINANCE ACT 2010 ALLOWS ADDITIONAL TIME UPTO THE DU E DATE OF FILING OF THE RETURN IN RESPECT OF EVEN THOSE INSTANCES WHERE TDS HAS BEEN DEDUCTED DURING THE FIRST ELEVEN MONTHS OF THE PREVIOUS YEAR . THE ADDITIONAL TIME TILL THE DUE DATE OF FILING OF THE RETURN , IN CAS E OF TDS MADE DURING THE LAST MONTH OF THE PREVIOUS YEAR WAS ALREADY AVAILA BLE BY THE AMENDMENT MADE BY FINANCE ACT 2008. THUS IT IS APPARENT THA T THE RELAXATION MADE BY THE AMENDMENT MADE UNDER THE FINANCE ACT, 2 010 BRINGS THE LAW IN PARITY WITH THE AFOREMENTIONED SITUATION AND ACCORDINGLY, FOR THE TDS DEDUCTED ALL THROUGHOUT THE YEAR, TIME IS EX TENDED FROM PAYMENT TILL THE FILING OF RETURN. IT IS THUS APPARENT THA T WHEN THE AMENDMENT ITA NO. 633/JP/14 ITO WARD 2(4), JAIPUR VS. M/S GEM BUILDER, JAIPUR 3 INTRODUCED BY THE FINANCE ACT, 2008 OF RELAXING THE TIME FOR DEPOSIT OF TDS WAS MADE RETROSPECTIVE FROM THE YEAR 2005 (1 ST APRIL 2005) THE AMENDMENT BY FINANCE ACT, 2010 WITH REGARD TO OTHE R LIMB OF TIME LIMIT FOR PAYMENT OF TDS HAS TO BE HELD RETROSPECTIVE NOT FROM 1 ST APRIL 2010 ONLY. IF WE RECALL AT THIS STAGE THE SPEECH OF FINA NCE MINISTER WHILE INTRODUCING THIS PROVISION BY WAY OF FINANCE ACT, 2010 THIS AMENDMENT ESSENTIALLY HAS BEEN BROUGHT FOR RELAXING THE CURR ENT PROVISION ON DISALLOWANCE OF EXPENDITURE. THE TAX, IF IS DEDUCT ED AT ANY TIME DURING THE FINANCIAL YEAR AND PAID BEFORE THE DATE OF FILI NG OF THE RETURN, THE LEGISLATURE INTENDED TO ALLOW DEDUCTION ON SUCH EXP ENDITURE WITH AN INTENTION TO PERMIT ADDITIONAL TIME FOR MOST DEDUCT ORS UPTO SEPTEMBER, OF THE NEXT FINANCIAL YEAR. 2.2 THE LD. DR RELIED ON THE ORDER OF THE LOWER AUT HORITIES. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE TDS WAS DEP OSITED IN THE MONTH OF JUNE, 2006 BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF HARISH CHAND AHUJA (SUPRA) THE ADDITIONS OF RS. 17,78,495/- U/S 40(A)( IA) OF THE IT ACT, 1961 IS DELETED. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/01/201 6. SD/- SD/- VKJ-IH-RKSYKUH FOE FLAG ;KNO (R.P.TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 06/01 /2016 ITA NO. 633/JP/14 ITO WARD 2(4), JAIPUR VS. M/S GEM BUILDER, JAIPUR 4 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO, WARD 2(4), JAIPUR 2. THE RESPONDENT- M/S GEM BUILDERS, JAIPUR 3. THE CIT(A).I, JAIPUR 4. THE CIT-I JAIPUR 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO.633/JP/14) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR