ACIT 25(2), MUMBAI V. JEKIN ENTERPRISES, MUMBAI

ITA 7397/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8475 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 14-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 28-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJNISH DEO BURMAN
• Assessee Lawyers: HITESH M SHAH
• Keywords: Retrospective amendment
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI I.P.BANSAL,JUDICIAL MEMBER & SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO.7397/MUM/2010(A.Y. 2005-06) THE ACIT 25(2), C-11, 1 ST FLOOR, PRATYAKSHKAR BHAVAN, BANDRA (E), MUMBAI - 400 051. (APPELLANT) VS. M/S. JEKIN ENTERPRISES, A-604, PREM NAGAR BLDG., NO.5, MANDPESHWAR ROAD, BORIVALI (W), MUMBAI - 400 092. PAN:AAAFJ 0648R (APPELLANT) APPELLANT BY : SHRI RAJNISH DEO BURMAN RESPONDENT BY : SHRI HITESH M. SHAH DATE OF HEARING : 14/11/2012 DATE OF PRONOUNCEMENT : 14 /11/2012 ORDER PER I.P.BANSAL, J.M, THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER PASSED BY LD. CIT(A) DATED 2/8/2010 FOR A.Y 2005-0 6. THE GROUND OF APPEAL READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS. 1,20,17,804/ - WITHOUT APPRECIATING THE FACT THAT IN THE REMAND REPORT, AO HAS SUBMITTED THAT AS PER THE COPIES OF CHALLANS SUBMITTED BY THE ASSE SSEE, IT IS CLEAR THAT THE PAYMENTS AND TAX DEDUCTION THEREON WAS MADE FRO M MONTHS OF APRIL, 2004 TO FEBRUARY, 2005. 2. THE DELETION WHICH IS AGITATED BY THE REVENUE I N THE GROUNDS OF APPEAL RELATES TO DISALLOWANCE MADE UNDER SECTION 40(A)(IA ) OF THE INCOME TAX ACT, 1961(THE ACT), WHICH IS IN THE SHAPE OF PAYMENT MAD E TO LABOUR, MACHINERY ITA NO.7397/MUM/2010(A.Y. 2005-06) 2 HIRE, PAYMENT TO PROFESSIONAL AND INTEREST. THE DE TAILS HAS BEEN SHOWN IN TABLE DESCRIBED AT PAGE-3 OF THE IMPUGNED ORDER. PARTICULARS AMOUNT TDS PAYMENT EXCESS PAID PAID O N TDS ON LABOUR 76,21,071 85,023 -- -- --- TDS ON MACHINERY HIRE 7,39,085 8,132 -- -- -- TDS ON PROFESSIONAL 64,060 5,575 -- -- -- SUB TOTAL 84,24,216 98,730 98,771 41 01.7.20 05 TDS ON INTEREST 35,93,588 3,73,627 3,74,951 1,324 01.7.2005 GRAND TOTAL 1,20,17,804 4,72,357 LD. CIT(A) NOTED THE FACT THAT PAYMENT OF TDS HAS B EEN MADE BY THE ASSESSEE ON 1/7/2005 WHICH FALL WITHIN THE DUE DATE OF FILING THE RETURN AS PRESCRIBED IN SECTION 139(1)AND HAS DELETED THE AD DITION MADE BY THE AO.. THE LD. CIT(A) HAS ALSO REFERRED TO THE AMENDMENT B ROUGHT IN SECTION 40(A)(IA) BY THE FINANCE ACT 2008 WITH RETROSPECTIV E EFFECT I.E. 1/4/2005. THE REVENUE IS AGGRIEVED BY SUCH RELIEF GIVEN BY LD . CIT(A). 3. LD. D.R SUBMITTED THAT SINCE TDS WAS NOT PAID WI THIN THE DUE DATE, LD. CIT(A) HAS WRONGLY DELETED THE ADDITION AND HIS ORDER SHOULD BE SET ASIDE THAT OF AO BE RESTORED. 4. ON THE OTHER HAND, IT IS THE CASE OF LD. AR THAT THE IMPUGNED ORDER HAS BEEN PASSED BY THE LD. CIT(A) IN PURSUANCE OF O RDER OF ITAT. THE AO HAD CALLED FOR THE REMAND REPORT. THE ONLY QUESTIO N INVOLVED WAS THAT WHETHER THE AFOREMENTIONED PAYMENTS WHICH WERE MADE IN THE MONTH OF MARCH 2005, TDS DEDUCTED WAS DEPOSITED OR NOT BEFOR E THE DUE DATE OF FILING THE RETURN. LD. A.R MENTIONED THAT THE PAYMENTS HA VE BEEN MADE ON 1/7/2005 WHICH IS MUCH EARLIER TO THE DUE DATE OF F ILING OF RETURN, WHICH IN ITA NO.7397/MUM/2010(A.Y. 2005-06) 3 THE CASE OF ASSESSEE IS 31/10/2005. THUS IT WAS PL EADED BY HIM THAT THERE IS NO INFIRMITY IN THE RELIEF GRANTED BY THE LD. CI T(A) AND HIS ORDER SHOULD BE UPHELD. 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. THE PROVISIONS OF SECTION 40(A)(I A) READ AS UNDER: (IA) ANY INTEREST, COMMISSION OR BROKERAGE, [RENT, ROYALTY,] FEES FOR PROFESSIONAL SERVICES OR FEES FOR TECHNICAL SERVICE S PAYABLE TO A RESIDENT, OR AMOUNTS PAYABLE TO A CONTRACTOR OR SUB-CONTRACTO R, BEING RESIDENT, FOR CARRYING OUT ANY WORK (INCLUDING SUPPLY OF LABOUR F OR CARRYING OUT ANY WORK), ON WHICH TAX IS DEDUCTIBLE AT SOURCE UNDER C HAPTER XVII-B AND SUCH TAX HAS NOT BEEN DEDUCTED OR, AFTER DEDUCTION, [HAS NOT BEEN PAID ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139 :] THE HIGHLIGHTED WORDS ARE SUBSTITUTED BY THE FINA NCE ACT 2008 WITH RETROSPECTIVE EFFECT FROM 1/4/2005. 5.1 AS PER PROVISION AMENDED W.E.F. 1/4/2005 (FRO M A.Y 2005-06), IF THE PAYMENT IS MADE ON OR BEFORE THE DUE DATE SPECI FIED UNDER SECTION 139(1) THE AMOUNT WILL BE ALLOWABLE. SINCE IN THE PRESENT CASE ASSESSMENT YEAR INVOLVED IS A.Y. 2005-06 AND THE PAYMENT HAS B EEN MADE WELL BEFORE THE DUE DATE OF FILING THE RETURN, AS PRESCRIBED UN DER SECTION 139(1), WE SEE NO INFIRMITY IN THE RELIEF GRANTED BY LD. CIT(A). FINDING NO FORCE IN THE DEPARTMENTAL APPEAL, THE SAME IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 14 TH DAY OF NOV. 2012 SD/- SD/- (RAJENDRA ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 14 TH NOV. 2012. ITA NO.7397/MUM/2010(A.Y. 2005-06) 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.R I BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.