NAMCO STEEL P. TLD, RAIGAD V. ACIT PANVEL CIR, THANE

ITA 8728/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87935 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Section: 194C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B B ENCH, MUMBAI . . , , . . , ! BEFORE SHRI I.P. BANSAL, JM AND SHRI B.R. BASKAR AN, AM ./ I.T.A. NO.8728/MUM/2011 ( ' ' ' ' / ASSESSMENT YEAR :2008-09 M/S. NAMCO STEEL PVT. LTD., J-18, MIDC, TALOJA TAL, PANVEL, DIST RAIGAD THE ACIT, PANVEL CIRCLE, PANVEL, DIST. RAIGAD # ./ $% ./PAN/GIR NO. : AACCN 5795L ( #& /APPELLANT ) .. ( '(#& / RESPONDENT ) #& ) / APPELLANT BY : ` SHRI MANEESH VAIDYA '(#& * ) /RESPONDENT BY : SHRI PREMANAND J * +, / DATE OF HEARING :07.01.2015 -.' * +, / DATE OF PRONOUNCEMENT :07.01.2015 / / O R D E R PER I.P BANSAL, JM: THE APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY LD. CIT(A)-1, MUMBAI DT. 10.8.2011 FOR A .Y.2008-09. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. THE LD. CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE MADE BY THE AO OF A SUM OF RS. 36,31,592/- U/S. 40( A)(IA) OF THE I.T. ACT, 1961. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE ADDIT ION MADE IS WRONG AND IS REQUIRED TO BE DELETED NOW. 2. WITHOUT PREJUDICE TO THE ABOVE AND ONLY AS AN ALTERNATE PRAYER, IT IS REQUESTED THAT THE LD. AO B E DIRECTED TO ALLOW THE DEDUCTION OF RS. 36,31,592/- U/S. 40(A )(IA) IN THE IMMEDIATELY SUCCEEDING YEAR. ITA NO.8728/M/2011 2 3. A SUM OF RS. 36,31,592/- HAS BEEN DISALLOWED BY THE AO ON THE GROUND THAT THE ASSESSEE DID NOT PAY TAX DEDUCTED A T SOURCE WITHIN THE PRESCRIBED TIME AND THE DISALLOWANCE IS MADE U/S. 4 0A(IA) OF THE ACT. THE RELEVANT OBSERVATIONS OF THE AO ARE REPRODUCED BELO W. WHILE EXAMINING THE EXPENSES AND THE TDS REGISTER, IT IS OBSERVED THAT THE ASSESSEE HAS DEDUCTED TAX AT SOUR CE ON THE AMOUNTS OF RS. 36,31,592/- U/S. 194C AND 194J OF I. T. ACT, 1961, BUT THESE WERE PAID IN GOVT. ACCOUNT AFTER THE PRES CRIBED DATE AS PER THE PROVISIONS OF SEC 40(A)(IA) OF I.T. ACT, 19 61. DETAILS OF THE SAME HAVE BEEN SUBMITTED BY THE ASSESSEE. BY PAYIN G THE TDS AMOUNT IN GOVT. ACCOUNT AFTER THE PRESCRIBED DATE, THE ASSESSEE COMPANY HAS VIOLATED THE PROVISIONS OF SEC. 40(A)(I A) OF THE I.T. ACT, 1961. ACCORDINGLY, RS. 36,31,592/- ARE DISALL OWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE COMPANY U/S. 40 (A)(IA) OF THE I.T. ACT, 1961. PENALTY PROCEEDINGS U/S. 271(1)(C) ARE INITIATED SEPARATELY. 4. THE DETAILS OF TDS AS SUBMITTED IN PAGE-42 IS AS UNDER: S. NO PARTY NAME NATURE OF PAYMENT PAID AMOUNT DATE OF DEDUCTION TDS TDS DUE ON TDS PAID 1. ALOK TRANSPORT CO. 194C 21602 29.1.08 489 7.2.08 12.4.08 2. ASIS OVERSEAS (C&F) PVT.LTD 194C 150000 2.1.08 3399 7.1.08 12.4.08 3. ASIS OVERSEAS (C&F) PVT.LTD 194C 300000 13.1.08 6798 7.2.08 12.4.08 4. ASIS OVERSEAS (C&F) PVT.LTD 194C 427000 22.1.08 9676 7.2.08 12.4.08 5. ASIS OVERSEAS (C&F) PVT.LTD 194C 385000 22.1.08 8724 7.2.08 12.4.08 6. KATARIA TRANSPORT CO. 194C 2000000 21.2.08 45320 7.3.08 12.4.08 7. NEW JAI BHARAT TRANSPORT SERVICES 194C 55149 29.1.08 1250 7.2.08 12.4.08 8. NEW JAI BHARAT TRANSPORT SERVICES 194C 35901 22.2.08 814 7.3.08 12.4.08 ITA NO.8728/M/2011 3 9. NEW POOJA FREIGHT CARRIER 194C 104014 20.1.08 2357 7.2.08 12.4.08 10. NEW POOJA FREIGHT CARRIER 194C 66334 22.2.08 1503 7,3,08 12.4.08 11. R.K. CRANE CONTRACTOR 194C 21384 21.2.08 484 7.3.08 12.4.08 12. MAHESH C. SOLANKI 194J 15208 5.2.08 1723 7.3.08 12.4.08 13. MAHESH C. SOLANKI 194J 50000 19.2.08 5665 7.3.08 12.4.08 THE LD. CIT(A) HAS UPHELD THE DISALLOWANCE. 5. THE ASSESSEE IS AGGRIEVED AND HAS FILED THE AFOR EMENTIONED GROUNDS OF APPEAL. 6. IT IS THE CONTENTION OF THE ASSESSEE THAT THE AM OUNT HAS BEEN PAID WELL BEFORE DUE DATE OF FILING OF THE RETURN, THER EFORE ,IN VIEW OF THE FOLLOWING DECISIONS, THE CLAIM OF THE ASSESSEE IS A LLOWABLE. 1. CIT VS SANTOSH KUMAR SHRETTY & OTHERS (KARNATAKA HI GH COURT) 2. CIT VS VIRGIN CREATIONS (KOLKATTA HIGH COURT) 2012- TIOL- 181-HC-KOL-IT 3. CIT VS SHRI JAWAHAR LAL AGRAWAL (M.P. HIGH COURT) 4. KANUBHAI RAMJIBHAI VS ITO (ITAT AHMEDABAD B BENCH ) 135 TTJ 364 5. M/S, PARTH DEVELOPERS VS ITO (ITAT B BENCH AHMEDA BAD (2011-TIOL-451-ITAT-AHM 6. PIYUSH MEHTA VS ACIT (ITAT MUMBAI C BENCH) 7. ITO VS SEEMA SHARMA (ITAT DELHI G BENCH) (33 CCH 438) COPY OF THESE DECISIONS ARE FILED IN THE PAPER BOOK . 8. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESEN TATIVE RELIED UPON THE ORDER PASSED BY THE AO. ITA NO.8728/M/2011 4 9. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. IN THE PRESENT CASE, IT IS UNDISPU TED THAT THE TDS HAS BEEN DEPOSITED BY THE ASSESSEE MUCH BEFORE DUE DATE OF FILING OF THE RETURN. THE DETAILS HAVE ALREADY BEEN DESCRIBED IN THE CHART REPRODUCED ABOVE. THE DECISIONS RELIED UPON BY THE LD. AR SUP PORTS THE CONTENTION THAT IF THE AMOUNT IS DEPOSITED BEFORE THE DUE DATE OF FILING THE RETURN, THEN NO DISALLOWANCE CAN BE DONE U/S. 40A(IA) OF TH E ACT. FOR THE SAKE OF COMPLETENESS, REFERENCE CAN BE MADE TO THE DECISION OF AHMEDABAD ITAT BENCH IN THE CASE OF KANUBHAI RAMJIBHAI VS ITO 135 TTJ 364 WHEREIN IT HAS BEEN HELD THAT PROVISIONS OF SEC. 40(A)(IA) AS AMENDED BY THE FINANCE ACT, 2010 W.E.F. 1 ST APRIL, 2010 IS REMEDIAL IN NATURE, DESIGNED TO ELIMINATE UNINTENDED CONSEQUENCES WHICH MAY CAUSE UNDUE HARDSHIP TO THE TAXPAYERS AND IT HAS TO BE TREATED AS RETROSPEC TIVE W.E.F. 1 ST APRIL, 2005, THE DATE ON WHICH S. 40(A)(IA) HAS BEEN INSER TED AND THEREFORE, NO DISALLOWANCE UNDER S. 40(A)(IA) CAN BE MADE WHERE T HE ASSESSEE HAD PAID BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME, THE TAX DEDUCTED DURING THE PREVIOUS YEAR. OTHER DECISIONS RELIED UPON BY THE LD. AR ALSO SUPPORTS THE ABOVE CONCLUSION. IN THIS VIEW OF THE SITUATION, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED AND DISALLOWANCE O F RS. 36,31,592 IS DELETED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 07.01.2015 SD/- SD/- (B.R. BASKARAN) (I.P. BANSAL ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 0 DATED 07.01.2015 . . ./ RJ , SR. PS ITA NO.8728/M/2011 5 / / / / * ** * '+1 '+1 '+1 '+1 21'+ 21'+ 21'+ 21'+ / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '(#& / THE RESPONDENT. 3. 3 ( ) / THE CIT(A)- 4. 3 / CIT 5. 14 '+ , , / DR, ITAT, MUMBAI 6. 45 6 / GUARD FILE. / / / / / BY ORDER, (1+ '+ //TRUE COPY// 7 77 7 / 8 8 8 8 $ $ $ $ (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI