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TMI Blog2014 (1) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee filed the return of income on 31/10/2006 declaring an income of Rs. 9,93,911/-, which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter to be referred as the Act). Later on, the case was selected for scrutiny. During the course of assessment proceedings, the A.O. noticed that as per income and expenditure statement, the assessee received Rs. 2,61,37,745/- as truck hire income and claimed Rs. 2,48,10,067/- as truck hire expenses. The A.O. asked the assessee to produce following details, documents and explanation: 1. As per provisions of section. 40(a)(ia) of the Income Tax Act TDS is required to be deposited into Govt. account as detailed below:- a. in a case where the tax was deductible and was so deducted during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to avoid litigation and to buy piece the party was advised for such journal entry and accordingly payment was made. The payment was made alongwith interest on 07/04/2008. As per section. 40a(ia)(A), if tax is deducted during the last month of the previous year and paid on or before the due date of filing of return as per section 139(1), then such sum shall be allowed as deduction. In cases where tax is deducted other than the last month of the previous year but is deposited before the last day of the previous year, then it will be allowed as deduction. Therefore, the condition for allowability of deduction are prescribed u/s 40(a)(ia) itself and chapter XVII and Section 194C are not relevant. The tribunal observed that if the condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied from the submissions of the assessee and held that the payments of Rs. 2,42,50,582/- were liable for TDS (as the assessee himself deducted TDS on those payments) and that the TDS amount on these payments, which were paid up to February, 2008 should have been deposited before 31/3/2008. He, therefore made the addition of Rs. 2,42,50,582/- u/s 40(a)(ia) of the Act. 6. The assessee carried the matter to the learned CIT(A) and submitted that the assessee deducted the tax of Rs. 2,75,604/- on the payments of Rs. 2,42,50,582/- on 31st March, 2008 and deposited on 07th April, 2008. No disallowance was called for. Reliance was placed on the following cases. 1. Kanubhai Ramjibhai Vs. ITO (2011) 49 DTR (Ahd.) (Trib) 70. 2. Bapusaheb Nansah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Calcutta High Court in order dated 23/11/2011. Based on the same, the Hon'ble ITAT, Mumbai in the case of Shri Piyus C. Mehta Vs. ACIT, I.T.A. No. 1321/Mum/2009 in order dated 11/09/2011 has held as under: " In view of the above, we hold following the decision of the Hon'ble Calcutta High Court that amendment to the provisions of Section 40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 01.4.2005. Consequently, any payment of tax deducted at source during previous years relevant to and from A.Y. 2005-06 can be made to the Government on or before the due date for filing return of income under section 139(1) of the Act. If payments are made as aforesaid, then no deduction under section 40(a)(ia) of the Act can be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06-07 and the disallowance made under section 40(a)(ia) has been deleted. The reasons given in this order on above issues are applicable in this year also and therefore the disallowance of Rs. 2,42,50,582/- is not tenable and the same is deleted. This ground of appeal is allowed." Now the department is in appeal. 8. The learned counsel for the assessee at the very outset stated that this issue is squarely covered in favour of the assessee vide order dated 01/10/2012 of this Bench of the Tribunal in the case of ITO Vs. Shri Nem Chand Jain for the assessment year 2005-06. Copy of the said order was furnished. 9. In his rival submissions, the Learned D.R. strongly supported the order of the Assessing Officer. 10. After considering submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source has been before the due date of filing the return of income for the year under consideration. In the present case, payment of TDS has been made before the due date of filing of the return u/s 139(1) of the Act, therefore, the Learned CIT(A) was fully justified in deleting the addition made by the Assessing Officer by following the decision of ITAT Mumbai Bench in the case of Bapusaheb Nanasaheb Dhumal vs. ACIT (2010)40 SOT 361 (Mum.)". 11. Since the facts of the present case are similar to the aforesaid referred to case, so respectfully following the above said order dated 01/10/2012 passed in I.T.A. NO. 384/Jodh/2011 for the assessment year 2005-06 in the case of ITO vs. Shri Nem Chand Jain, we do not see any merit in the appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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