DCIT, Coimbatore V. A. Senthil Kumar, Coimbatore

MA 81/CHNY/2023

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The case involves a Miscellaneous Application (M.A. No.81/CHNY/2023) filed by the Revenue seeking rectification of a mistake in the Tribunal's earlier order (I.T.A. No. 2570/CHNY/2016) dated 28.09.2022. The Revenue contended that the application of the second proviso to section 40(a)(ia) of the Income Tax Act, as per the Tribunal's earlier order, was incorrect for the assessment year 2011-12. The Tribunal, after reviewing the submissions and the relevant legal provisions, dismissed the application, citing the retrospective applicability of the second proviso as per the precedent set by the Delhi High Court in the case of CIT vs. Ansal Land Mark Township (P) Ltd.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135007 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-08-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2023
• Other Referred Cases: CIT vs. Ansal Land Mark Township (P) Ltd., [2015] 377 ITR 635
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Retrospective amendment; TDS
• Section: 40(a)(ia)

Judgement Text

आयकर अपीलीय अिधकरण, ‘बी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI ᮰ी महावीर ᳲसह, उपा᭟यᭃ एवं ᮰ी मनोज कुमार अᮕवाल, लेखा सद᭭य के समᭃ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER िविवध यािचका सं / M.A. No.81/CHNY/2023 (arising in I.T.A. No. 2570/CHNY/2016) िनधाᭅरण वषᭅ / Assessment Year : 2011-12 The DCIT, Central Circle 2(2), Chennai. Vs. Shri A. Senthil Kumar, No.107A, Senguptha Street, Ramnagar, Coimbatore – 641 009. PAN: ATRPS 9670A (अपीलाथᱮ / Applicant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से /Applicant by : Shri AR.V. Sreenivasan, Addl.CIT ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri N. Arjunraj, CA for Shri S. Sridhar, Advocate सुनवाई कᳱ तारीख/ Date of hearing : 11.08.2023 घोषणा कᳱ तारीख /Date of Pronouncement : 11.08.2023 आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: By way of this Miscellaneous Application, the Revenue has requested for rectification of mistake apparent from record in the order of the Tribunal in ITA No. 2570/CHNY/2016 dated 28.09.2022. 2 M.A No.81/CHNY/2023 2. At the outset, the ld.senior DR took us through para 33 & 33.1 of Tribunal’s order and stated that the Tribunal has observed at page 51, para 33.1 that, “In case, the recipient party has included this interest in their income and filed return of income and paid taxes, the AO will verify and then in term of second proviso to section 40(a)(ia) of the Act, will decide the claim of assessee.” According to ld.Senior DR, as per the rectification application filed by Revenue, this is the mistake. According to Revenue, the second proviso to section 40(a)(ia) of the Act cannot be applied retrospectively particularly to this assessment year 2011-12 and the relevant mistake pointed out by the AO in its petition reads as under:- “Second proviso to section 40(a)(ia) cannot be applied in this case for the Asst.Year 2011-12. To that extent, there is a mistake apparent from records in the Order of the Hon’ble ITAT in ITA No.2570/Chny/2016 dated 28.09.2022. For the reasons mentioned above and as the mistake is apparent from record in Hon’ble ITAT’s order in ITA No.2570/Chny/2016 dated 28.09.2022, a Miscellaneous Application is submitted before the Hon’ble ITAT as per the direction of the Director General of Income Tax (Investigation), Tamilnadu and Puducherry.” 3. After hearing rival contentions and going through the Tribunal’s order and the rectification petition filed by Revenue we noted that this particular issue is squarely covered by the decision of Hon’ble Delhi High Court in the case of CIT vs. Ansal Land Mark 3 M.A No.81/CHNY/2023 Township (P) Ltd., [2015] 377 ITR 635, wherein the Hon’ble Delhi Court has considered the issue of disallowance made by AO u/s.40(a)(ia) of the Act for failure to deduct TDS on payments and in case, if payee has offered this amount to tax, the second proviso to section 40(a)(ia) of the Act as inserted by Finance Act, 2013 w.e.f. 01.04.2013 should be treated as curative and to have retrospective effect from 01.04.2005. In view of the above, we find no mistake apparent from record in the order of the Tribunal and hence, the miscellaneous application filed by the Revenue is dismissed. 4. In the result, the miscellaneous application of the Revenue is dismissed. Order pronounced in the open court on 11 th August, 2023 at Chennai Sd/- Sd/- (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य /ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 11 th August, 2023 RSR आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Applicant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ /CIT 4. िवभागीय ᮧितिनिध/DR 5. गाडᭅ फाईल/GF.