2012 (4) TMI 466 - AT - Income Tax

Disallowance u/s.40(a)(ia) - reopening of the assessment CIT(A) charging interest u/s.234B and initiating penalty proceedings u/s. 271(1)(c) Held that - Decided in Kanubhai Ramjibhai Makwana Versus ITO (2010 - TMI - 202951 - ITAT, AHMEDABAD) that provisions of section 40(a)(ia) as amended by Finance Act, 2010 w.e.f. 1.4.2010 are to be treated as having retrospective application with effect from 1st April, 2005 - Assessing Officer is directed to delete the disallowance of ₹ 3,69,568/- as made u/s. 40(a)(ia) of the Act in favour of assessee.

Summary

Issues:
1. Reopening of assessment under section 147 of the Income Tax Act, 1961.
2. Disallowance under section 40(a)(ia) of the Act.
3. Charging interest under section 234B of the Income Tax Act, 1961.
4. Initiating penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961.

Reopening of Assessment:
The appellant filed an appeal against the order of the Ld. Commissioner of Income-tax (Appeals)-I, Baroda for the assessment year 2005-06. The Assessing Officer noticed that income chargeable to tax had escaped assessment due to TDS payments made by the assessee but remitted after the financial year. The reopening was based on the failure to disclose material facts. The assessee objected to the reopening, which was not accepted, leading to disallowance of expenses under section 40(a)(ia) by the Assessing Officer.

Disallowance under Section 40(a)(ia):
The appellant challenged the disallowance under section 40(a)(ia) in the appeal. The Ld. CIT(A) upheld the disallowance, citing the case of Kanubhai Ramjibhai Makwana and the retrospective application of section 40(a)(ia) from April 1, 2010. However, the ITAT's Mumbai Special Bench in the case of Bharati Shipyard Ltd. v DCIT held that the amendment to section 40(a)(ia) was prospective from AY 2010-11. The Calcutta High Court in CIT v. Virgin Creators also ruled against the Revenue. Following the decision of the Calcutta High Court, the disallowance under section 40(a)(ia) was directed to be deleted.

Charging Interest and Penalty Proceedings:
The Ld. CIT(A) also charged interest under section 234B and initiated penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961. However, these issues were not discussed further in the judgment, and the appeal primarily focused on the reopening of assessment and the disallowance under section 40(a)(ia).

In conclusion, the appeal was allowed by the Appellate Tribunal, directing the deletion of the disallowance under section 40(a)(ia) as made by the Assessing Officer. The judgment highlighted the conflicting views on the retrospective application of section 40(a)(ia) and the significance of judicial decisions in resolving such disputes.