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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 ..... The appeal filed by the Revenue is late by 4 days. The reasons for condoning the delay are duly explained by the Revenue through an affidavit filed along with the appeal. After hearing the rival submissions we find that the explanation submitted by the Revenue is a plausible one We accordingly condone the delay and admit the appeal taken by the Revenue. 4. The ld. DR relied on the order of the AO. 5. The ld. AR before us pointed 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 accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disallowance of a sum of Rs.5,06,02,000/- sustained by two types of default being made by the assessee in respect of the TDS. A sum of Rs.45,530,517 representing the case where the assessee had deducted TDS but the tax deduction is not in accordance with the rate as has been prescribed u/s 194C, 194H and 194J of the IT Act. The tax has been deducted but less that the assessee made a default by deducting short TDS. The case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons but payment of the tax so deducted was made before filing of the due date of the return u/s 139(1) of the Act. We noted that the Hon'ble Calcutta High Court in the case of CIT vs Virgin Creations in ITAT NO.302 of 2011, GA No.3200/2011 dated 23.11.2011 confirming the Coordiante Bench decision of the ITAT in ITA No.267/Kol/2009 'A' Bench in the case of Virgin Creations vs ITO dated 15.12.2010. The Tribunal has considered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005. In thec ase of R.B.Jodha Mal Kathiala 82 ITR 570, it was held by the Hon'ble Supreme Court that a proviso which is inserted to remedy unintended consequences and to make the provision workable, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. In the present case, the amount of tax deducted at source from the freight charges during the period 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . and also in the case of Alon Extrusions Ltd. has already decided that the aforesaid provision has retrospective application. Again in the case reported in 82 ITR 570, the Supreme Court held that the provision, which has inserted the remedy to make the provision workable, requires to be treated with retrospective operation so that reasonable deduction can be given to the section as well. In view of the authoritative 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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