ACIT 8(3), MUMBAI V. RADHAKRISHNA FOODLAND CARRIERS P.LTD, THANE

ITA 6858/MUM/2012

• Counselvise Citation: 685819914 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Assessee Lawyers: J D MISTRY; M A GOHEL
• Keywords: Retrospective amendment

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI BEFORE HONBLE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG (JM) . . , , ./I.T.A. NO.6886/MUM/2012 ( / ASSESSMENT YEAR : 2009-10) ASSTT.COMMISSIONER OF INCOME TAX -8(3), ROOM NO.217, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. M/S RKHS FOOD AND ALLIED SERVICES P.LTD., (FORMERLY KNOWN AS M/S SHRM FOOD AND ALLIED SERVICES P.LTD) KOLSITE HOUSE, 23-A SHAH INDUSTRIAL ESTATE, OFF VEERA DESAI ROAD, ANDHERI (W), MUMBAI-400053 ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. :AAACT2529E ./I.T.A. NO.6858/MUM/2012 ( / ASSESSMENT YEAR : 2009-10) ASSTT.COMMISSIONER OF INCOME TAX -8(3), ROOM NO.217, AYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 / VS. M/S RADHAKRISHNA FOODLAND CARRIERS LTD. RADHAKRISHNA HOUSE, MAJIWADE VILLAGE ROAD, MAJIWADE, THANE-400601 ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. :AABCR8854K / APPELLANT BY SHRI LOVE KUMAR ! / RESPONDENTS BY SHRI J D MISTRY AND SHRI M A GOHEL ' # ! $% / DATE OF HEARING :3.3.2015 &' ! $% /DATE OF PRONOUNCEMENT :3.3.2015 ITA. NO.6886/MUM/2012 ITA NO.6858/MUM/2012 2 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: BOTH THE APPEALS ARE FILED AT THE INSTANT OF REVENU E ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY THE LD. CIT(A )-18, MUMBAI IN THE HANDS OF RESPECTIVE ASSESSEES AND THEY RELATE TO AS SESSMENT YEAR 2009- 10. BOTH THE APPEALS WERE HEARD TOGETHER AND HENCE THEY ARE BEING DISPOSED OF BY THIS COMMON ORDER, FOR THE SAKE OF C ONVENIENCE. 2. ONE OF THE ISSUES URGED BY BOTH THE ASSESSEES IS IDENTICAL IN NATURE, I.E., IT RELATES TO THE DECISION OF LD. CIT(A) IN DELETING THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE INCOME TAX ACT, 1961 (TH E ACT). 3. THE FACTS RELATING TO THE ABOVE SAID DISALLOWANC E ARE THAT THE ASSESSEE DID NOT REMIT THE TAX DEDUCTED AT SOURCE W ITHIN THE DUE DATE PRESCRIBED IN THE RELEVANT SECTION, BUT REMITTED IT BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. THE AO TOOK THE VIEW THAT THE TAX DEDUCTED AT SOURCE SHOULD HAVE BEEN REMITTED BEFORE THE END OF THE FINANCIAL YEAR AND ACCORDINGLY MADE THE DISALLOWANCE OF THE RELEVANT E XPENDITURE BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT. 4. THE LD. CIT(A), HOWEVER, DELETED THE DISALLOWANC E SO MADE BY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL RENDERED IN ITA. NO.6886/MUM/2012 ITA NO.6858/MUM/2012 3 THE CASE OF SHRI PIYUSH C MEHTA V/S ACIT (2012) 52 SOT 27(AT). AGGRIEVED, THE REVENUE HAS FILED THIS APPEAL BEFORE US ON THIS ISSUE. 5. WE HEARD THE PARTIES. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE CO-ORDINATE BENCH OF TH E TRIBUNAL IN THE CASE OF SHRI PIYUSH C MEHTA (SUPRA) HAS FOLLOWED THE DEC ISION RENDERED BY THE KOLKATTA HIGH COURT IN THE CASE OF CIT V/S VIRGIN CREATIONS IN ITA NO.302 OF 2011 DECIDED ON 23.11.2011, WHEREIN IT WAS HELD THAT THE AMENDMENT BROUGHT INTO THE SECTION 40(A)(IA) W.E.F 1.4.2010 I S CLARIFICATORY IN NATURE AND HENCE IT SHALL HAVE RETROSPECTIVE EFFECT. THE SAID AMENDMENT PROVIDED THAT THE DISALLOWANCE U/S 40(A)(IA) SHALL NOT BE MADE, IF THE TDS IS REMITTED ON OR BEFORE THE DUE DATE PRESCRIBED FO R FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. THE LD COUNSEL SUBM ITTED THAT THE LD CIT(A) HAS FOLLOWED THE DECISION RENDERED BY THE CO -ORDINATE BENCH TO DECIDE THIS ISSUE IN FAVOUR OF BOTH THE ASSESSEES. THE LD COUNSEL FURTHER SUBMITTED THAT THE HONBLE DELHI HIGH COURT, IN THE CASE OF CIT V/S NARESH KUMAR (2014) 362 ITR 256 (DEL), HAS ALSO TAK EN IDENTICAL VIEW AS THAT OF THE HONBLE KOLKATTA HIGH COURT. 6. ON THE OTHER HAND, THE LD. DR PLACED RELIANCE ON THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF BHARTI SHIP YARD REPORTED IN 132 ITD 53. ITA. NO.6886/MUM/2012 ITA NO.6858/MUM/2012 4 7. WE NOTICE THAT THE HONBLE KOLKATTA HIGH COU RT IN THE CASE OF VIRGIN CREATIONS (SUPRA) AS WELL AS THE DELHI HIGH COURT I N THE CASE OF NARESH KUMAR (SUPRA) HAVE TAKEN THE VIEW THAT THE AMENDMEN T BROUGHT INTOTHE SECTION 40(A)(IA) OF THE ACT BY FINANCE ACT, 2010 SHALL HAVE RETROSPECTIVE APPLICATION. AS STATED EARLIER, THE ABOVE SAID AMEN DMENT PROVIDES THAT THE PROVISIONS OF SECTION 40(A)(IA) SHALL NOT APPLY IF THE TAX DEDUCTED AT SOURCE IS PAID BEFORE THE DUE DATE PRESCRIBED FOR FILING O F RETURN OF INCOME U/S 139(1) OF THE ACT. IN THE INSTANT CASES, THERE IS NO DISPUTE THAT THE TDS AMOUNT HAS BEEN PAID BEFORE THE DUE DATE PRESCRIBED FOR FILING THE RETURN OF INCOME U/S 139(1) OF THE ACT. SINCE AMENDMENT B ROUGHT BY FINANCE ACT, 2010 INTO THE SEC. 40(A)(IA) OF THE ACT HAS BE EN HELD TO HAVE RETROSPECTIVE EFFECT, THE RELEVANT EXPENDITURE IS N OT LIABLE TO BE DISALLOWED. SINCE, WE HAVE FOLLOWED THE DECISIONS RENDERED BY T HE HONBLE HIGH COURTS, WE DO NOT AGREE WITH THE CONTENTION OF THE LD. DR THAT THE DECISION RENDERED BY SPECIAL BENCH OF THE TRIBUNAL IN THE CA SE OF BHARATI SHIP YARD (SUPRA) SHOULD BE FOLLOWED. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. 8. IN THE APPEAL FILED IN THE CASE OF M/S RKHS FOOD S AND ALLIED SERVICES P.LTD, THE REVENUE HAS TAKEN ONE MORE GROU ND I.E DISALLOWANCE MADE U/S 40(A)(IA) FOR SHORT DEDUCTION OF TAX AT SO URCE. WE NOTICE THAT THE LD. CIT(A) HAS DELETED THE ADDITION MADE U/S 40 (A)(IA) FOR SHORT DEDUCTION OF TAX AT SOURCE, BY FOLLOWING THE DECISI ON RENDERED BY THE ITA. NO.6886/MUM/2012 ITA NO.6858/MUM/2012 5 HONBLE KOLKATTA HIGH COURT IN THE CASE OF DCIT V/ S S K TEKRIWAL REPORTED IN 361 ITR 432. SINCE THE LD CIT(A) HAS FOLLOWED T HE DECISION RENDERED BY THE HONBLE CALCUTTA HIGH COURT, WE DO NOT FIND ANY REASON TO INTERFERE WITH HIS DECISION ON THIS ISSUE. 9. IN THE RESULT, BOTH EH APPEALS OF THE REVENUE AR E DISMISSED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT IN THE PRE SENCE OF BOTH THE PARTIES ON 03-03-2015. &' ' ( ) *+ 3 RD MARCH, 2015 ' ! ,# - SD SD ( ,, / SANJAY GARG ) ( . . ,/ B.R. BASKARAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ( ' # MUMBAI:3 RD MARCH,2015. . . ./ SRL , SR. PS ! '#$%& '&($ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ' 0$ ( ) / THE CIT(A)- CONCERNED 4. ' 0$ / CIT CONCERNED 5. 12, $3 , % 3 , ( ' # / DR, ITAT, MUMBAI CONCERNED 6. , 4# / GUARD FILE. 5 ' / BY ORDER, TRUE COPY 6 (ASSTT. REGISTRAR) % 3 , ( ' # /ITAT, MUMBAI