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2018 (1) TMI 700 - AT - Income TaxDisallowance u/s 40(a)(ia) - whether section 40(a)(ia) amended by the Finance Act 2010 with effect from 01.04.2010 is retrospective from 01.04.2005 or prospective from the date specified? - Held that - As decided in VIRGIN CREATION case 2011 (11) TMI 348 - CALCUTTA HIGH COURT Supreme Court in case of Allied Motors Pvt. Ltd. Vs CIT(1997 (3) TMI 9 - Supreme Court) and in case of CIT vs Alom Extrusions Ltd.(2009 (11) TMI 27 - Supreme Court) has already decided that the aforesaid provision has retrospective application. - Decided against revenue
Issues Involved:
1. Disallowance of Assessee's claim for deduction of TDS on rents paid under Section 40(a)(ia) of the Income Tax Act, 1961. 2. Retrospective vs. Prospective application of the amendment to Section 40(a)(ia) by the Finance Act, 2010. Issue-wise Detailed Analysis: 1. Disallowance of Assessee's Claim for Deduction of TDS on Rents Paid: The Assessee, a company, had its claim for a deduction of ?41,34,215 disallowed by the Assessing Officer (AO) under Section 40(a)(ia) of the Income Tax Act, 1961. This amount represented TDS on rents paid for the period from April 2005 to February 2006. The AO disallowed the deduction because the Assessee deposited the TDS to the credit of the Central Government only in April and May 2006, instead of on or before 31.3.2006 as required by the law at that time. 2. Retrospective vs. Prospective Application of the Amendment to Section 40(a)(ia) by the Finance Act, 2010: The core question was whether the amendment to Section 40(a)(ia) by the Finance Act, 2010, effective from 01.04.2010, should be applied retrospectively from 01.04.2005 or prospectively from the specified date. The CIT(A) had followed the Hon'ble Calcutta High Court's decision in CIT Vs. Virgin Creations, which held that the amendment is retrospective from 01.04.2005. This amendment allowed any payment of TDS on or before the due date for filing the return of income to be deductible. Legislative History and Judicial Interpretations: - Initial Provision (Finance (No.2) Act, 2004): Section 40(a)(ia) was inserted, disallowing certain expenses if TDS was not paid within the prescribed time. - Finance Act, 2008 Amendment: Introduced two categories for disallowance based on the period of TDS deduction within the financial year. - Finance Act, 2010 Amendment: Simplified the provision by allowing deduction if TDS was paid on or before the due date specified in Section 139(1). Judicial Precedents: - Special Bench ITAT in Bharati Shipyard Ltd. (2011): Held that the 2010 amendment was not retrospective from AY 2005-2006. - ITAT Kolkata Bench in Virgin Creations (2010): Held that the 2010 amendment is retrospective from 01.04.2005, considering it remedial and curative. - Hon'ble Calcutta High Court in Virgin Creations (2011): Affirmed the ITAT's view, stating the amendment should be applied retrospectively to avoid unintended hardships. Conclusion: Based on the legislative history and judicial precedents, the Tribunal concluded that the amendment by the Finance Act, 2010, is retrospective from 01.04.2005. The CIT(A)'s order, which allowed the Assessee's deduction claim, was upheld. The revenue's appeal was dismissed. Final Order: The appeal by the revenue was dismissed, affirming the CIT(A)'s order that the amendment to Section 40(a)(ia) by the Finance Act, 2010, is retrospective from 01.04.2005, allowing the Assessee's deduction claim. The judgment was pronounced in court on 01.12.2017.
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