Shri Amarjitsingh D. Randhawa, Baroda V. The Income Tax Officer, Ward-2(4), Baroda

MA 99/AHD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3942 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 15-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAGENDRA SINGH SR DR
• Assessee Lawyers: S N SOPARKAR
• Keywords: Opportunity of being heard; Retrospective amendment; Non-deduction of tax
• Section: 201(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. MA NO. 99/AHD/2015 AY 2006-07 2. MA NO.100/AHD/2015 AY 2006-07 ( IN ./ I.T.A. NOS.1414 & 1415/AHD/2011 RESPECTIVELY ) ( / ASSESSMENT YEARS : 2006-07) 1. SHRI AMAARJITSINGH D.RANDHAWA B-24, AMBICA NAGAR SOCIETY-3 NR.DURGA TRDERS, CHHNI JAKAT NAKA, BARODA PAN: AEGPR 7933 D 2. SHRI DALJITSINGH D. RANDHAWA B-24, AMBICA NAGAR SOCIETY-34, NR.DURGA TRADERS CHHANI JAKAT NAKA, BARODA PAN: AEGPR 7944 L (ORIGINAL APPELLANTS) / VS. 1. THE INCOME TAX OFFICER WARD-2(4) BARODA 2. THE INCOME TAX OFFICER WARD-2(4) BARODA (ORIGINAL RESPONDENT) ./ ./ PAN/GIR NO. : ( ' / APPLICANTS ) .. ( #' / RESPONDENT ) ' $ / APPLICANT BY : SHRI S.N. SOPARKAR, AR #' % $ / RESPONDENT BY : SHRI NAGENDRA SINGH, SR.DR &'( % ) / DATE OF HEARING 19/02/2016 *+, % ) / DATE OF PRONOUNCEMENT 04/03/2016 MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 2 - / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THE PRESENT TWO MISCELLANEOUS APPLICATIONS HAVE B EEN FILED BY THE DIFFERENT ASSESSEES ON 15/12/20015 (ARISING OUT OF ITA NOS.1414 & 1415/AHD/2011 FOR AY 2006-07) FOR SEEKING MODIFICAT ION/RECALLING THE TRIBUNALS (ITAT A BENCH AHMEDABAD) COMMON ORDER DATED 21/10/2015 IN THE LIGHT OF THE JUDGEMENT OF THE HON BLE HIGH COURT OF DELHI RENDERED IN THE CASE OF ANSAL LAND MARK TOWNS HIP (P) LTD. REPORTED AT 377 ITR 635 (DEL). 2. THE LD.SR.COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS AS WERE MADE IN THE MISCELLANEOUS APPLICATIONS AND SUB MITTED THAT THIS HONBLE TRIBUNAL WAS PLEASED TO RESTORE THE ISSUE T O THE FILE OF AO FOR DECISION AFRESH. IT IS SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE THAT THE TRIBUNALS ORDER MAY BE MODIFIED AND THE AO BE DIRE CTED TO DECIDE THE ISSUE IN THE LIGHT OF THE JUDGEMENT OF HONBLE HIGH COURT OF DELHI IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD.(SUPRA). 2.1. ON THE CONTRARY, LD.SR.DR SHRI NAGENDRA SINGH OPPOSED THE SUBMISSIONS MADE BY THE LD.SR.COUNSEL FOR THE ASSES SEE SHRI S.N. SOPARKAR AND SUBMITTED THAT THERE IS NO MISTAKE APP ARENT FROM THE RECORDS AND, THEREFORE, THERE IS NO NEED TO MODIFY THE TRIBUNALS ORDER. MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 3 - 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE RELEVANT COMMON SUBMISSIO N OF THE ASSESSEE(S) CONTAINED IN THE MISCELLANEOUS APPLICATIONS, WHICH READS AS UNDER (EXTRACTED FROM MA NO.99/AHD/2015):- 2. THE APPLICANT BY GROUND # 1 CHALLENGED DISALL OWANCE OF RS.3,66,469/- OF TRANSPORTATION COMMISSION AND OF R S.4,58,971/- OF REPAIRS AND MAINTENANCE EXPENSES U/S.40(A)(IA) OF T HE ACT DUE TO NON-DEDUCTION OF TAX AT SOURCE. ALTERNATE TO THE S UBMISSION THAT THE APPELLANT WAS NOT LIABLE TO DEDUCT TAX ON NON C ONTRACTUAL COMMISSION EXPENSES, AR ADVANCED THE PROPOSITION TH AT SECOND PROVISO BELOW SECTION 40(A)(IA) OF THE ACT INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01.04.2013 BEING CURATIVE AMENDMEN T IS TO BE TREATED AS RETROSPECTIVE IN NATURE PLACING RELIANCE ON ANSAL LAND MARK TOWNSHIP (P) LTD. (DEL) (377 ITR 635). [PROVIDED FURTHER THAT WHERE AN ASSESSEE FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII-B ON ANY SUCH SUM BUT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SUB-SECTION (1) OF SECTION 201, THEN, FOR THE PU RPOSE OF THIS SUB-CLAUSE, IT SHALL BE DEEMED THAT THE ASSESS EE HAS DEDUCTED AND PAID THE TAX ON SUCH SUM ON THE DATE O F FURNISHING OF RETURN OF INCOME BY THE RESIDENT PAYE E REFERRED TO IN THE SAID PROVISO.] 3.1. WE FIND THAT THIS TRIBUNAL IN ITA NOS.1414 & 1 415/AHD/2011 FOR AY 2006-07 VIDE ORDER DATED 21/10/2015 HAS DECIDED THE ISSUE BY OBSERVING AS UNDER:- MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 4 - 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO MADE DISALLOWANCE ON THE BASIS THAT THE ASSESSEE WAS REQUIRED TO DEDUCT THE TAX ON THE COMMISSION RECEI PTS. IT IS THE CONTENTION OF THE ASSESSEE THAT THESE RECEIPTS ARE NOT OF THE CONTRACTUAL IN NATURE. HOWEVER, THE LD.COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE RECEIPTS HAVE BEEN OFFERED TO TAX BY THE CONCERNED PARTY. IN RESPECT OF OTHER ISSUES, I.E. NON-DEDUCTION OF TAX, THE AUTHOR ITIES HAVE FAILED TO APPRECIATE THE FACT THAT THE PAYMENTS WERE NOT EXCE EDED RS.50,000/- AND WHEREVER SUCH PAYMENTS WHICH EXCEEDED RS.20,000 /- HAS BEEN ACCEPTED FOR DISALLOWANCE. 4.1. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PE RUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE LD.C IT(A) IN RESPECT OF DISALLOWANCE OF RS.3,66,469/-, HAS HELD THAT THE TA X WAS REQUIRED TO BE DEDUCTED. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT THERE WAS NO CONTRACTUAL TERMS FOR THE PAYMENT OF COMMISS ION. ALTERNATIVELY, IT IS SUBMITTED THAT THE CONCERNED PARTY HAS OFFERE D THE RECEIPTS AS INCOME FOR THE YEAR UNDER APPEAL AND IN RESPECT OF THE SECOND DISALLOWANCE OF RS.4,58,971/-, IT IS CONTENDED THAT THE PAYMENTS DID NOT EXCEED THE PRESCRIBED LIMIT, THEREFORE THERE WAS NO REQUIREMENT TO DEDUCT THE TAX. WE FIND THAT THE AO HAS MADE DISA LLOWANCE ON THE BASIS THAT THE EXPENDITURE, LIKE SPARE-PARTS EXPENS ES OF RS.1,17,237/- AND TYRE & TUBE EXPENSES OF RS.5,23,119/- ARE SEPAR ATELY DEBITED IN THE PROFIT & LOSS ACCOUNT. THEREFORE, IT CAN BE ASSUME D THAT THE REPAIRS AND MAINTENANCE EXPENSES OF RS.4,58,971/- DEBITED TO TH E PROFIT & LOSS ACCOUNT WAS PURELY IN THE NATURE OF LABOUR CHARGES FOR REPAIRS AND MAINTENANCE AND DID NOT INCLUDE ANY EXPENDITURE ON ACCOUNT OF PURCHASE OF ANY COMPONENTS/PARTS. WE FIND THAT T HE AO HAS NOT MADE ANY ENQUIRY WITH REGARD TO THE NATURE OF EXPENDITUR E. HOWEVER, BEFORE THE LD.CIT(A), THE ASSESSEE HAS GIVEN SEPARATE ACCO UNT OF REPLACEMENT OF SPARES AND LABOUR CHARGES. UNDER THESE FACTS, W E DEEM IT PROPER TO RESTORE THESE ISSUES TO THE FILE OF AO FOR DECISION AFRESH. NEEDLESS TO SAY THAT THE AO WOULD AFFORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AS A RESULT, ASSESSEES APPEAL (IN THE CASE OF SHRI AMARJITSINGH D.RANDHAWA) IS ALLOWED FOR STATISTICAL PURPOSES. MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 5 - 3.2. IT IS THE CONTENTION OF THE LD.SR.COUNSEL FOR THE ASSESSEE THAT THE JUDGEMENT OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD.[SUPRA] WAS CITED AND RELIED UPON BY THE ASSESSEE(S) WHICH WAS NOT RECORDED BY THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE ASSESSEES. THIS HAS RESULTED INTO T HE MISTAKE APPARENT FROM THE RECORD. 3.3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE RIVAL CONTENTIONS OF THE PARTIES AND PERUSED THE MATERIAL AVAILABLE O N RECORDS. LOOKING TO THE TOTALITY OF THE FACTS OF THE CASE, WE DEEM IT P ROPER TO MODIFY OUR ORDER PASSED IN ITA NOS.1414 & 1415/AHD/2011 FOR AY 2006- 07, DATED 21/10/2015. ACCORDINGLY, WE MODIFY THE PARAGRAPH N O.4.1 OF THE SAID TRIBUNALS ORDER DATED 21/10/2015, AS UNDER:- 4.1. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE LD.C IT(A) IN RESPECT OF DISALLOWANCE OF RS.3,66,469/-, HAS HELD THAT THE TAX WAS REQUIRED TO BE DEDUCTED. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE IS THAT THERE WAS NO CONTRACTUAL T ERMS FOR THE PAYMENT OF COMMISSION. ALTERNATIVELY, IT IS SUBMIT TED THAT THE CONCERNED PARTY HAS OFFERED THE RECEIPTS AS INCOME FOR THE YEAR UNDER APPEAL AND IN RESPECT OF THE SECOND DISALLOWA NCE OF RS.4,58,971/-, IT IS CONTENDED THAT THE PAYMENTS DI D NOT EXCEED THE PRESCRIBED LIMIT, THEREFORE THERE WAS NO REQUIR EMENT TO MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 6 - DEDUCT THE TAX. WE FIND THAT THE AO HAS MADE DISA LLOWANCE ON THE BASIS THAT THE EXPENDITURE, LIKE SPARE-PARTS EXPENSES OF RS.1,17,237/- AND TYRE & TUBE EXPENSES OF RS.5,23,1 19/- ARE SEPARATELY DEBITED IN THE PROFIT & LOSS ACCOUNT. T HEREFORE, IT CAN BE ASSUMED THAT THE REPAIRS AND MAINTENANCE EXP ENSES OF RS.4,58,971/- DEBITED TO THE PROFIT & LOSS ACCOUNT WAS PURELY IN THE NATURE OF LABOUR CHARGES FOR REPAIRS AND MAINTE NANCE AND DID NOT INCLUDE ANY EXPENDITURE ON ACCOUNT OF PURCH ASE OF ANY COMPONENTS/PARTS. WE FIND THAT THE AO HAS NOT MA DE ANY ENQUIRY WITH REGARD TO THE NATURE OF EXPENDITURE. HOWEVER, BEFORE THE LD.CIT(A), THE ASSESSEE HAS GIVEN SEPARA TE ACCOUNT OF REPLACEMENT OF SPARES AND LABOUR CHARGES. THE ASSESSEE HAS RELIED ON THE JUDGEMENT OF THE HONBLE HIGH COURT O F DELHI IN THE CASE OF CIT VS. ANSAL LAND MARK TOWNSHIP (P) LT D. REPORTED AT (2015) 377 ITR 635 (DELHI), WHEREIN IT HAS BEEN HELD THAT THE AMENDMENT IN THE FINANCE ACT, 2012, D ATED 01/04/2013 BEING CURATIVE TO BE TREATED AS RETROSPE CTIVE IN NATURE. ACCORDINGLY WE DIRECT THE AO TO DECIDE TH E ISSUE IN THE LIGHT OF THE JUDGEMENT OF THE HONBLE HIGH COUR T OF DELHI IN THE CASE OF ANSAL LAND MARK TOWNSHIP (P) LTD., W HEREIN THE HIGH COURT HAS HELD AS UNDER:- MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 7 - 12. RELEVANT TO THE CASE IN HAND, WHAT IS COMMO N TO BOTH THE PROVISOS TO SECTION 40(A)(IA) AND SECTION 201(1) OF THE ACT IS THAT THE AS LONG AS THE PAYEE/RESIDENT (WHICH IN THIS CASE IS APIL) HAS FIL ED ITS RETURN OF INCOME DISCLOSING THE PAYMENT RECEIVED BY AND IN WHICH THE INCOME EARNED BY IT IS EMBEDDED AND HAS ALSO PAID TAX ON SUCH INCOME, THE ASSESSEE WOULD NOT BE TREATED AS A PERSON IN DEFAULT. AS FAR AS THE PRESE NT CASE IS CONCERNED, IT IS NOT DISPUTED BY THE REVENUE THAT THE PAYEE HAS FILED RE TURNS AND OFFERED THE SUM RECEIVED TO TAX. TURNING TO THE DECISION OF THE AGRA BENCH OF THE IN COME-TAX APPELLATE TRIBUNAL IN RAJEEV KUMAR AGARWAL VS. ASST. CIT (SUP RA ), THE COURT FINDS THAT IT HAS UNDERTAKEN A THOROUGH ANALYSIS OF THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT AND ALSO SOUGHT TO EXPLAIN THE RATIONALE BEHIND ITS INSERTION. IN PARTICULAR, THE COURT WOULD LIKE TO R EFER TO PARAGRAPH 9 OF THE SAID ORDER WHICH READS AS UNDER (PAGE 485 OF 34 ITR (TRIB)) : 'ON A CONCEPTUAL NOTE, THE PRIMARY JUSTIFICATION FO R SUCH A DISAL- LOWANCE IS THAT SUCH A DENIAL OF DEDUCTION IS TO CO MPENSATE FOR THE LOSS OF REVENUE BY CORRESPONDING INCOME NOT BEING T AKEN INTO ACCOUNT IN COMPUTATION OF TAXABLE INCOME IN THE HANDS OF TH E RECIPIENTS OF THE PAYMENTS. SUCH A POLICY MOTIVATED DEDUCTION RESTRIC TIONS SHOULD, THEREFORE, NOT COME INTO PLAY WHEN AN ASSESSEE IS A BLE TO ESTABLISH THAT MERE IS NO ACTUAL LOSS OF REVENUE. THIS DISALLOWANC E DOES DEINCENTIVISE NOT DEDUCTING TAX AT SOURCE, WHEN SUC H TAX DEDUCTIONS ARE DUE BUT SO FAR AS THE LEGAL FRAMEWORK IS CONCER NED, THIS PROVISION IS NOT FOR THE PURPOSE OF PENALISING FOR THE TAX DE DUCTION AT SOURCE LAPSES. THERE ARE SEPARATE PENAL PROVISIONS TO THAT EFFECT. DEIN- CENTIVISING A LAPSE AND PUNISHING A LAPSE ARE TWO D IFFERENT THINGS AND HAVE DISTINCTLY DIFFERENT, AND SOMETIMES MUTUALLY E XCLUSIVE, CONNO- TATIONS. WHEN WE APPRECIATE THE OBJECT OF SCHEME OF SECTION 40(A)(IA), AS ON THE STATUTE, AND TO EXAMINE WHETHER OR NOT, O N A 'FAIR, JUST AND EQUITABLE' INTERPRETATION OF LAWAS IS THE GUIDANCE FROM THE HON'BLE DELHI HIGH COURT ON INTERPRETATION OF THIS LEGAL PR OVISION, IN OUR HUMBLE UNDERSTANDING, IT COULD NOT BE AN 'INTENDED CONSEQUENCE' TO DISALLOW THE EXPENDITURE, DUE TO NON-DEDUCTION OF T AX AT SOURCE, EVEN IN A SITUATION IN WHICH CORRESPONDING INCOME IS BRO UGHT TO TAX IN THE HANDS OF THE RECIPIENT. THE SCHEME OF SECTION 40(A) (IA), AS WE SEE IT, IS AIMED AT ENSURING THAT AN EXPENDITURE SHOULD NOT BE ALLOWED AS DEDUCTION IN THE HANDS OF AN ASSESSEE IN A SITUATIO N IN WHICH INCOME MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 8 - EMBEDDED IN SUCH EXPENDITURE HAS REMAINED UNTAXED D UE TO TAX WITHHOLDING LAPSES BY THE ASSESSEE. IT IS NOT, IN O UR CONSIDERED VIEW, A PENALTY FOR TAX WITHHOLDING LAPSE BUT IT IS A SORT OF COMPENSATORY DEDUCTION RESTRICTION FOR AN INCOME GOING UNTAXED D UE TO TAX WITH- HOLDING LAPSE. THE PENALTY FOR TAX WITHHOLDING LAPS E PER SE IS SEPA- RATELY PROVIDED FOR IN SECTION 271C, AND, SECTION 4 0(A)(IA) DOES NOT ADD TO THE SAME. THE PROVISIONS OF SECTION 40(A)(IA ), AS THEY EXISTED PRIOR TO INSERTION OF SECOND PROVISO THERETO, WENT MUCH BEYOND THE OBVIOUS INTENTIONS OF THE LAWMAKERS AND CREATED UND UE HARDSHIPS EVEN IN CASES IN WHICH THE ASSESSEE'S TAX WITHHOLDI NG LAPSES DID NOT RESULT IN ANY LOSS TO THE EXCHEQUER. NOW, THAT THE LEGISLATURE HAS BEEN COMPASSIONATE ENOUGH TO CURE THESE SHORTCOMINGS OF PROVISION, AND THUS OBVIATE THE UNINTENDED HARDSHIPS, SUCH AN AMEN DMENT IN LAW, IN VIEW OF THE WELL-SETTLED LEGAL POSITION TO THE EFFE CT THAT A CURATIVE AMENDMENT TO AVOID UNINTENDED CONSEQUENCES IS TO BE TREATED AS RETROSPECTIVE IN NATURE EVEN THOUGH IT MAY NOT STAT E SO SPECIFICALLY, THE INSERTION OF SECOND PROVISO MUST BE GIVEN RETROSPEC TIVE EFFECT FROM THE POINT OF TIME WHEN THE RELATED LEGAL PROVISION WAS INTRODUCED. IN VIEW OF THESE DISCUSSIONS, AS ALSO FOR THE DETAILED REAS ONS SET OUT EARLIER, WE CANNOT SUBSCRIBE TO THE VIEW THAT IT COULD HAVE BEE N AN 'INTENDED CONSEQUENCE' TO PUNISH THE ASSESSEES FOR NON-DEDUCT ION OF TAX AT SOURCE BY DECLINING THE DEDUCTION IN RESPECT OF REL ATED PAYMENTS, EVEN WHEN THE CORRESPONDING INCOME IS DULY BROUGHT TO TA X. THAT WILL BE GOING MUCH BEYOND THE OBVIOUS INTENTION OF THE SECT ION. ACCORDINGLY, WE HOLD THAT THE INSERTION OF SECOND PROVISO TO SEC TION 40(A)(IA) IS DECLARATORY AND CURATIVE IN NATURE AND IT HAS RETRO SPECTIVE EFFECT FROM APRIL 1, 2005, BEING THE DATE FROM WHICH SUB-CLAUSE (IA) OF SECTION 40(A) WAS INSERTED BY THE FINANCE (NO. 2) ACT, 2004 .' 14. THE COURT IS OF THE VIEW THAT THE ABOVE REASO NING OF THE AGRA BENCH OF THE INCOME-TAX APPELLATE TRIBUNAL AS REGARDS THE RA TIONALE BEHIND THE INSERTION OF THE SECOND PROVISO TO SECTION 40(A)(IA ) OF THE ACT AND ITS CON- CLUSION THAT THE SAID PROVISO IS DECLARATORY AND CU RATIVE AND HAS RETROSPECTIVE EFFECT FROM APRIL 1, 2005, MERITS ACCEPTANCE. MA NOS.99 & 100/AHD/2015 (IN ITA NOS.1414 & 1415 /AHD/2011) S/SHRI AMARJITSINGH D RANDHAWA AND DALJITSINGH D R ANDHAWA VS. ITO RESPECTIVELY FOR ASST.YEAR 2006-07 - 9 - NEEDLESS TO SAY THAT THE ASSESSING OFFICER WILL AFF ORD REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE(S) AND THEN DECIDE THE ISSUE AFRESH. 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEES; I.E. MA NO.99/AHD/2015 AND MA NO.100/AHD /2015 FOR AY 2006-07 ARE DISPOSED OF AS INDICATED ABOVE. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 4 TH DAY OF MARCH, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 04/ 03 /2016 0)..& , '.&../ T.C. NAIR, SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPLICANTS 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-II, BARODA 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, #5 //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD