Janardhan Sahai Vishwa Nath, V. ITO , Deoband,

MA 299/DEL/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5251 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Section: 10; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY-SMC BEFORE SHRI K.G. BANSAL : ACCOUNTANT MEMBER M.A. NO. 299(DEL)/2010 (ARISING OUT OF ITA NO.1606(DEL)/2008) ASSESSMENT YEAR: 2005-06 M/S JANARDHAN SAHAI VISHWA INCOME-TAX OFFICER, NATH (PETROL PUMP), GT ROAD, VS. DEOBAND, DISTT. DEOBAND, DISTT. SAHARANPUR. SAHARANPUR (U.P) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ANKIT GUPTA, C.A. RESPONDENT BY: SHRI H.K. LAL, DR ORDER IN THIS CASE, THE TRIBUNAL HAD PASSED THE ORDER ON 29.8.2006, IN WHICH THE APPEAL OF THE ASSESSEE WAS DISMISSED. T HE ASSESSEE HAD CLAIMED DEDUCTION OF INTEREST EXPENDITURE OF ` 3,46,130/- ON WHICH TAX OF ` 34,381/- WAS DEDUCTED. THE TAX WAS PAYABLE ON 31.3.2005. HOWEVER, IT WAS ACTUALLY PAID ON 4.6.2005. IT WAS SUB MITTED THAT THE DELAY OCCURRED ON ACCOUNT OF DELAY IN MAKING APPLICATION FOR NEW TAN. THIS SUBMISSION WAS REJECTED BY MENTIONING THAT THE P ROVISION CONTAINED IN SECTION 40(A)(IA) DOES NOT CONTAIN ANY PROVISION T O ALLOW THE EXPENDITURE IF MA NO. 299(DEL)/2010 2 IT IS SHOWN THAT CORRESPONDING TAX DEDUCTED AT SOURCE HAS NOT BEEN PAID IN TIME. 2. THE ASSESSEE MOVED A MISCELLANEOUS APPLICATI ON ON 3.6.2010 MENTIONING INTER-ALIA THAT FINANCE ACT, 2008 AMEN DED THE AFORESAID PROVISION AND PERMITTED THE ASSESSEE TO DEPOS IT THE TAX ON OR BEFORE THE DUE DATE OF FILING THE RETURN U/S 139(1) FOR CLA IMING THE DEDUCTION. THIS PROVISION WAS NOT CONSIDERED AND IT CONSTITUTES A MISTAKE APPARENT FROM RECORD. IN REPLY, THE LD. DR RELIED ON THE ORD ER OF THE TRIBUNAL. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. SECTION 40 OF THE INCOME-TAX ACT WAS AMENDED BY SECTION 10 OF THE FINANCE ACT, 2008 AS UNDER:- IN SECTION 40 OF THE INCOME-TAX ACT, IN CLAUSE ( A)- (A) IN SUB-CLAUSE (IA), WITH EFFECT FROM THE 1 ST DAY OF APRIL, 2005- (I) FOR THE WORDS, BRACKETS AND FIGURES HAS NOT BEEN PAID DURING THE PREVIOUS YEAR, OR IN THE SUBSEQUENT YEAR BEFORE THE EXPIRY OF THE TIME PRESCRIBED UNDER SUB-SECTI ON (1) OF SECTION 200, THE FOLLOWING WORDS, BRACKETS, LETTE RS AND FIGURES SHALL BE SUBSTITUTED AND SHALL BE DEEMED TO HAVE BEEN SUBSTITUTED, NAMELY:- MA NO. 299(DEL)/2010 3 HAS NOT BEEN PAID, - (A) IN A CASE WHERE THE TAX WAS DEDUCTIBLE AND WAS SO DEDUCTED DURING THE LAST MONTH OF THE PREVIOUS YEAR, ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTION 139; OR (B) IN ANY OTHER CASE, ON OR BEFORE THE LAST DAY OF THE PREVIOUS YEAR., 3.1 FROM THIS PROVISION, IT IS CLEAR THAT IF TAX HAD BEEN DEDUCTIBLE AND WAS SO DEDUCTED DURING THE LAST MONTH OF THE PRE VIOUS YEAR, AND THE SAME IS PAID BEFORE THE DATE SPECIFIED IN SECTION 139 (1), THEN, THE ASSESSEE IS ENTITLED TO DEDUCT THE EXPENDITURE IN COMPUTING TH E TOTAL INCOME OF THE PREVIOUS YEAR IN WHICH THE EXPENDITURE HAD BEEN INCURRED. IN THIS CASE, TAX WAS DEDUCTED FROM INTEREST IN THE LAST MONT H OF THE PREVIOUS YEAR. THEREFORE, THE AMENDED PROVISION IS APPLICABLE T O THE ASSESSEE, WHICH CAME INTO FORCE WITH EFFECT FROM 1.4.2005 AND I S APPLICABLE TO THE PROCEEDINGS OF ASSESSMENT YEAR 2005-06 AND ONWA RDS. WE ARE NOT INFORMED WHETHER THE FINANCE ACT HAD BEEN PASSED ON OR BEFORE 12.06.2008, BEING THE DATE OF PRONOUNCEMENT OF TH E ORDER BY THE TRIBUNAL. NONETHELESS, THE AMENDMENT HAS BEEN MADE IN THE PROVISION AND IS APPLICABLE TO THIS YEAR. THEREFORE, IT CONSTITUT ES A MISTAKE APPARENT FROM RECORD EVEN THOUGH THE AMENDMENT IS MADE RET ROSPECTIVELY. MA NO. 299(DEL)/2010 4 ACCORDINGLY, IT IS HELD THAT THE ASSESSEE IS EN TITLED TO DEDUCT THE INTEREST EXPENDITURE IN COMPUTING THE TOTAL INCOME OF THIS Y EAR. 4. IN THE RESULT, THE APPLICATION IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 19 NOVEMBER, 2010. SD/- (K.G.BANSAL) JUDICIAL MEMBER DATE OF ORDER: 19TH NOVEMBER, 2010. SP SATIA COPY OF THE ORDER FORWARDED TO:- M/S JANARDHAN SAI VISHWA NATH,(PETROL PUMP), GT RO AD, DEOBAND, SAHARANPUR. ITO, DEOBAND, SAHARANPUR. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.