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TMI Blog2013 (4) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... lowance u/s 40(a)(ia) is allowed - confirm the action of the CIT(A) so far as it relates to the short deduction by deleting the disallowance made by the AO u/s 40(a)(ia) - in favour of assessee. Balance amount of Rs.5,071,483/- - contention of the assessee that it had deducted the tax in course of various provisions but payment of the tax so deducted was made before filing of the due date of the return u/s 139(1) - Held that:- Once the issue is decided in Virgin Creations case [2011 (11) TMI 348 - CALCUTTA HIGH COURT] that the amendment made in the provisions of section 40(a)(ia) by the Finance Act 2010 as curative and remedial and TDS paid before filing of the return u/s 139(1) the deduction in respect of the amount on which the TDS is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out that a sum of Rs.5,06,02,000/- which was disallowed by the AO u/s 40(a)(ia) of the IT Act consists of two types of default A sum of Rs.45,530,517/- relate to the short deduction for which he has submitted before us while the balance amount of Rs.5,071,483/- represent the other amount in respect of which according to the AO the assessee has not deducted any TDS. According to the AO, the assessee made a default. In respect of TDS the ld. AR pointed out that the assessee has deducted the TDS and made the payment before the due date of filing of the return. In respect of short deduction it was pointed out that the provision of section 40(a)(ia) of the IT Act has two limbs. One is where, itner-alia, assessee has to deduct tax and the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee in such a situation is duly covered by the decision of Jurisdictional High Court in the case of CIT vs M/s. S.K.Tekriwal in ITAT NO.183 of 2012 vide order dated 3rd December, 2012 in which the Hon'ble High Court has held as under :- "We are of the view that the provisions of section 40(a)(ia) of the Act has two limbs one is where, inter alia, asseessee has to deduct tax and the second where after deducting tax, inter alia, the assessee has to pay into Government Account. There is nothing in the said section to treat, inter alia, the assessee as defaulter where there is a shortfall in deduction. With regard to the shortfall, it cannot be assumed that there is a default as the deduction is not as required by or under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the decision of Mumbai Bench of this ITAT in the case of M/s.Bansal Parivayhan (India) P.Ltd. vs ITO in ITA NO.2355/Mum/10 and of Ahmedabad Bench "B" in ITA No.3982/Ajd/2008 for A.Y.2005-06 dated 03.12.2010 in which amendment made in the provisions of section 40(a)(ia) of the Act by the Finance Act, 2010 was treated and remedial in nature by holding as under :- "After hearing the rival submissions and on careful perusal of the materials available on record, keeping in view of the fact that though the ld. DR submitted that the decision of the Coordiante Benches are not binding and the Kolkata Benches may take a different view, since Mumbai Bench after analyzing the provisons of section 40(a)(ia) since its inception and various amendments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod 01/04/2005 to 28/02/2006 was paid by the assesse in the months of July and August, 2006 i.e. well before the due date of filing of its return of income for the year under consideration. This being the undisputed position, we hold that the disallowance made by the A.O. and confirmed by the learned CIT(A) on account of freight charges by invoking the provisions of section 40(a)(ia) is not sustainable as per the amendments made in the said provisions by the Finance Act, 2010 which, being remedial/curative in nature have retrospective applciaiton". We find no reason to deviate from the decisions of the ITAT's Mumbai Bench and Ahmedabad Bench, in the absence of a contrary view, except the other benches decision or any other High Court. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pronouncement of the Supreme Court, this court cannot decide otherwise. Hence we dismiss the appeal without any order as to costs." 6.3. Once the issue is decided by the Hon'ble High Court that the amendment made in the provisions of section 40(a)(ia) of the Act by the Finance Act 2010 as curative and remedial and TDS paid before filing of the return u/s 139(1) of the Act the deduction in respect of the amount on which the TDS is shown is allowed. In the present case since the ld. DR vehemently contended that the AO has not verified the date of payment of the TDS by the assessee. Therefore, we set aside the order of the ld. CIT(A)so far it relates to Rs.5,071,483/- we restore the matter to the file of AO for the purpose verification whet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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