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TMI Blog2015 (3) TMI 1067X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. - ITA No. 1456/MUM/2013 - - - Dated:- 24-3-2015 - I. P. Bansal (Judicial Member) And Rajendra (Accountant Member) For the Petitioner : Shri Rajesh Ranjan Prasad For the Respondent : None ORDER I. P. Bansal (Judicial Member) This is an appeal filed by the Revenue and it is directed against order passed by Ld. CIT(A)-I, Mumbai dated 7/12/2012 for assessment year 2009-10. Grounds of appeal read as under: 1. On the facts and circumstances of the case and in law, the Ld.CIT(A) erred in deleting the disallowance of ₹ 12,39,1I,8271- without appreciating the fact that the amendment to the provisions of section 40( a)(ia) of the Act was applicable to the assessee since the bills were raised on the contractor throughout the financial year but booked all the bills raised by its sub-contract on 31.03.2009. 2. On the facts and circumstances of the case and in law, the Ld CIT(A) erred in deleting the disallowance without considering the decision of the Hon'ble Andhra Pradesh High Court granting interim suspension of the order of Hon'ble ITAT, Spl.Bench, Visakhapatnam in the case of M/s.Merilyn Shipping Transports, Visakhapatnam for A. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id TDS on the impugned amount on 26109/2009 which falls within the due date of filing the return. It will also be relevant to reproduce the findings recorded by Ld. CIT(A) which will give clarity to the facts. 4.5 I have carefully considered the facts of the case, arguments of the Assessing Officer and the written submissions of the Authorized Representative of the appellant. The fact is that appellant claimed sub contract charges of ₹ 33, 43, 18,934/- in the Profit Loss Account. Out of this the Assessing Officer has held that in the case of following RA bills TDS has been deducted and paid into the government account in time. The bills are RA Bill No. 4 ₹ 4,90,00,031/-(Part) RA Bill No. 5 ₹ 8,29,87,749/- RA bill No. 6 Rs.21,04,07,107/- The Assessing Officer stated that in the case of balance payment of ₹ 12, 39,11,827/- being sub-contract charges TDS has been deducted and has been paid on 26.9.2009. The Assessing Officer stated that the due date of payment for TDS in respect of this amount was 31.3.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the higher judicial forum is from a non- jurisdictional High court does not really alter this position, as laid down by the Hon'ble Bombay High Court in the case of CIT v. Godavaridevi Saraf 113 ITR 589(Bom) . 19. In view of the above, we hold following the decision of the Hon'ble' Calcutta High Court that Amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 is retrospective from 1.4.2005. nsequently, any payment of tax deducted at source during previous years relevant to and from AY 05-06 can be made to the Government on or before the due date for filing return of income u/s.139(J) of the Act. If payments are made as aforesaid, then no deduction U/S 40(a)(ia) of the Act can be made. Admittedly in the present case the Assessee had deposited the tax deducted at source on or before the due date for filing return of income u/s.139(J) of the. Act and, therefore the impugned disallowance deserves to be deleted. We order accordingly and allow the appeal by the Assessee . In other words the ITAT has held that the decision of Bharati Shipyard Ltd. by Special Bench Mumbai has been reversed by the decision of Virgin Creations by Kolk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue at length and also the various decisions of Hon'ble High Court and after careful consideration they have rejected the similar contention of Revenue which has been raised before us. For the sake of completeness these observations of their Lordships of Karnataka High Court are reproduced below: 5. The argument of the Revenue is, when the Finance Act, 2010, expressly states that the said provision would come into effect from 01.04.2010, it is not permissible for the Tribunals or the Courts to give it a retrospective effect prior to the date and therefore, it is submitted that the order passed by the Tribunal holding it as retrospective notwithstanding the fact that the parliament made its intention clear by declaring that it comes into effect from 01.04.2010. Therefore, the impugned orders are liable to be set aside. 6. This question came up for consideration before the Gujarat High Court in the case of Commissioner of Income Tax, Ahmedabad -IV Vs. Om Prakash R Chaudhary in Tax Appeal Nos.41212013 and connected matter, which came to be decided on 22.11.2013, after referring to the judgments of Alide Motors (P.) Ltd. Vs. CIT reported in AIR 1997 SC 1361 and CIT Vs. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, if the tax deducted at source is not paid within prescribed time [under Section 200 (1)}, no amount could be deducted while computing the income, under Chapter IV of the 'computation of business income'. 16.3: Thereafter, by way of amendment of Finance Act, 2008, further amendment was made whereby TDS deductible and deducted in the last month of previous year if was not paid till the due date of filing of return under sub-section (1) of Section 139 and in any other case, on or before the last day of the previous year, Section 40(a)(ia) provided for the disallowance of expenses like interest, commission, brokerage, etc. 16.4: Since, this had created anomaly whereby tax deducted in the last month was permitted payment till filing of return as per sub-section (1) of Section 139 whereas for the TDS deducted during the rest of the months, period was provided only till 31st March of the previous year, Finance Act, 2010 was brought. To bring parity, to remedy unintended consequences and to make the provision workable, it proposed to amend the said provision and provided inter alia that no disallowance would be made if after deduction of tax during the previous year, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent that the relaxation made by the amendment made under the Finance Act, 2010 brings the law in parity with the aforementioned situation and accordingly, for the TDS deducted all throughout the year, time is extended from payment till the filing of return. It is thus apparent that when the amendment introduced by the Finance Act, 2008 of relaxing the time for deposit of TDS was made retrospective from the year 2005 [lst April 2005], the amendment by Finance Act 2010 with regard to other limb of time limit for payment of TDS has to be held, retrospective not from 1st April 20 I 0 only. If we recall at this stage the speech of Finance Minister while introducing this provision by way of Finance Act, 20 I 0, this' amendment essentially has been brought for relaxing the current provision on disallowance of expenditure. The tax, if is deducted at any time during the financial year and paid before the date of filing of the return, the Legislature intended to allow deduction on such expenditure with an intention to permit additional time for most deductors upto September of the next financial year. 17.1: We draw further support from the fact that the rigor of payment of inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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