DCIT 12(2), MUMBAI V. POOJA PRAHLAD DEORA, MUMBAI

ITA 7306/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92635 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND
• Assessee Lawyers: S S JHUNJHUNWALA
• Keywords: Retrospective amendment

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.7036/MUM/20113 ( / ASSESSMENT YEAR : 2009-10 THE DY. COMMISSIONER OF INCOME TAX 12(2), ROOM NO.134, AAYKAR BHAVAN, MK ROAD, MUMBAI 20. / VS. M S. POOJA PRAHLAD DEORA, 41, MERE WEATHER ROAD, JIJI MANSION, 5 TH FLOOR, COLABA, MUMBAI 400 005. ./ ./ PAN/GIR NO. : AAKPD6912A ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI PREMANAND RESPONDENT BY S/SHRI NITESH JOSHI & S.S.JHUNJHUNWALA ' #$ / DATE OF HEARING : 13/05/2015 ' #$ / DATE OF PRONOUNCEMENT : 13/05/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS FILED BY THE REVENUE AND IT IS DIRECTED A GAINST ORDER PASSED BY LD. CIT(A)-23, MUMBAI DATED2/9/2013 FOR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION M ADE BY THE AO U/S. 40(A)(IS) BY HOLDING THAT AMENDMENT TO SECTION 40(A)(IA) BY F INANCE ACT, 20210 IS HAVING RETROSPECTIVE EFFECT WHEN LEGISLATURE ITSELF HAS MA DE IT PROSPECTIVE? 2.WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) IS CORRECT IN HOLDING THAT AMENDMENT TO SECTION 40(A)(IA) BY FINANCE ACT, 2010 IS HAVING RETROSPECTIVE EFFECT WHEN LEGIS LATURE ITSELF HAS MADE IT PROSPECTIVE. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD. CIT(A) IS CORRECT IN HOLDING THAT AMENDMENT TO SECTION 40(A)(IA) BY FINANCE ACT, 2010 IS HAVING RETROSPECTIVE EFFECT WHEN THE A MENDMENT IN QUESTION IS NEITHER REMEDIAL NOR CURABLE IN NATURE?. ./ I.T.A. NO.7036/MUM/20113 ( / ASSESSMENT YEAR : 2009-10 2 2. A SUM OF RS.19,48,734/-, ON WHICH TAX WAS DEDUC TED DURING THE FINANCIAL YEAR WAS DISALLOWED BY THE AO ON THE GROU ND THAT TDS PAYMENT OF RS.43,458/- WAS MADE ON 1/4/2009 I.E. WELL PRIOR TO DUE DATE OF FILING THE RETURN. THE AO INVOKED SECTION 40(A)(IA) TO DISALL OW THE AMOUNT OF RS.19,48,734/-. LD. CIT(A) RELYING UPON THE DECISI ON OF ITAT MUMBAI IN THE CASE OF PIYUSH C. MEHTA VS. ACIT, 31 CCH 111 AND AL SO THE DECISION OF BANGALORE ITAT IN THE CASE OF S.S. WARAD VS. ADDIT IONAL CIT, 36 CCH 071 (BANG.) AND ALSO THE DECISION OF HONBLE CULCUTTA HIGH COURT IN THE CASE OF VIRGIN CREATIONS IN INCOME TAX APPEAL NO.3200 OF 20 11 HAS HELD THAT DISALLOWANCE UNDER SECTION 40(A)(IA) WAS NOT CALLE D FOR AS PAYMENT OF TDS WAS MADE BEFORE DUE DATE OF FILING THE RETURN. THE DEPARTMENT IS AGGRIEVED, HENCE, HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. 3. LD. DR RELIED UPON THE ORDER PASSED BY A.O. 4. ON THE OTHER HAND, LD. AR IN ADDITION TO THE DEC ISIONS RELIED UPON BEFORE LD. CIT(A) HAS ALSO PLACED RELIANCE ON THE D ECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ASHOKJ. PATEL, 2 25 TAXAMAN79(GUJ), WHEREIN THEIR LORDSHIPS HAVE HELD THAT AMENDMENT IN SECTION 40(A)(IA) BY FINANCE ACT 2010 WOULD BE RETROSPECTIVELY APPLICAB LE. REFERENCE WAS INVITED TO PARAS 8.1 TO 8.3 8.1 NOW, SO FAR AS THE QUESTION NO.2 IN TAX APPEAL NO. 1064 OF 2013 FOR AY 2006-07 LE. DISALLOWANCE OF RS.93,25,426 MADE UNDER SECTION 40(A)(IA) OF THE ACT LE. WITH RESPECT TO RETROSPECTIVE OPERATION OF THE AMENDMENT IN SECTION 40(A)(IA) BY FINANCE ACT, 2010 IS CONCERNED, THE SA ID QUESTION IS SQUARELY COVERED AGAINST THE REVENUE BY DECISION OF THE DIVI SION BENCH OF THIS COURT IN TAX APPEAL NOA12 OF2013 AND ALLIED MATTERS. THE DIV ISION BENCH OF THIS COURT IN TAX APPEAL NOA12 OF20 13 AND ALLIED MATTERS, HAS HELD THAT THE AMENDMENT IN SECTION 40( A)(IA) OF THE ACT BY FINAN CE ACT, 2010 WOULD APPLY RETROSPECTIVELY. 8.2 MR. PARIKH, LEARNED COUNSEL APPEARING ON BEHAL F OF THE REVENUE HAS FAIRLY CONCEDED THAT THE AFORESAID ISSUE IS SQUARELY COVER ED AGAINST THE REVENUE BY THE DIVISION BENCH OF THIS COURT IN TAX APPEAL NOAI 2 OF 2013 AND ALLIED MATTERS. ./ I.T.A. NO.7036/MUM/20113 ( / ASSESSMENT YEAR : 2009-10 3 8.3 NOW, SO FAR AS DISALLOWANCE MADE UNDER SECTION 40(A)(IA) WITH RESPECT TO AY 2005-06 IS CONCERNED, IT APPEARS THAT AS SUCH TH E ASSESSEE PREFERRED APPEAL AND CLAIMED THAT THE SAID EXPENDITURE BE ALL OWED IN THE NEXT ASSESSMENT YEAR WHICH HAS BEEN ACCEPTED BY THE LEAR NED ITAT. THEREFORE, AS SUCH THE QUESTION WITH RESPECT TO DISALLOWANCE UNDE R SECTION 40(A)(IA) WOULD NOT ARISE IN TAX APPEAL NO.1065 OF2013 FOR AY 2005- 06. 5. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, RESPECTFULLY FOLLOWING THE DECISIONS CITED BY LD. A R , WHICH INCLUDE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS . ASHOK J. PATEL (SUPRA), RELEVANT PORTION HAS ALREADY BEEN REPRODUCED, WE DE CLINE TO INTERFERE IN THE RELIEF GRANTED BY LD. CIT(A). 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/05/2015 ' * +, 13/05/2015 ' SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; + DATED 13/05/2015 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. /# ( ) / THE CIT(A)- 4. /# / CIT 5. 01 #23 , $ 23 , / DR, ITAT, MUMBAI 6. 4 / GUARD FILE. / BY ORDER, 0# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . .VM , SR. PS