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TMI Blog2019 (5) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... nance ( No.2) Act, 2004. Hon'ble Supreme Court has held in the Hindustan Coca Cola Beverages P Ltd. Vs. CIT [ 2007 (8) TMI 12 - SUPREME COURT] that even in absence of second proviso to section 40(a)(ia) if it is noticed that the payee had already paid the tax, on the amount received under such circumstances, the Court held that the payer/deductor can at best be asked to pay the interest on delay in depositing tax and no further liability is warranted in the hands of the payer/deductor. AR has placed before us the additional evidences and necessary certificates from C.A. demonstrating that the taxes have been paid by the payee on the amount received as interest from assessee. These facts needs to be verified and established theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leted arriving assessed total income of ₹ 1,11,46,124/- by making various additions/disallowances as appearing in the assessment order. 4. That with regard to the disallowance made u/s.40(a)(ia) of the Act, at the time of hearing, the Ld. AR of the assessee vehemently argued that the Assessing Officer as well as the Ld.CIT(Appeals) was not justified in disallowing ₹ 47,39,488/- u/s.40(a)(ia) of the Act with respect to non deduction of TDS on interest paid to Tata Capital Housing Finance Ltd. The Ld. AR of the assessee further submitted that the second proviso to section 40(a)(ia) of the Act is retrospective in nature and hence, it is applicable to the case of the assessee and therefore, no disallowance is warrante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the assessee have been offered to tax by the respective recipients and as proof of the amount offered by the respective recipient to tax is also certified by their Chartered Accountants and the necessary C.A certificates were also filed by the assessee. 6. The Pune Bench of the Tribunal in ITA Nos.1370 1371/PUN/2015 and in ITA Nos. 22 23/PUN/2016 (supra.) has observed that the Hon'ble Kerala High Court in the case of Prudential Logistics and Transport Vs. Income Tax Officer (2014) 364 ITR 689 (Ker.) has held that amendment made to proviso to section 40(a)(ia) is prospective. On the other hand, the Hon'ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd. 377 ITR 635 (Del) has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Land Mark Township (P) Ltd (supra.) and has held that the second proviso to section 40(a)(ia) is retrospective in nature w.e.f. 01.04.2005 i.e. the date when the main proviso to 40(a)(ia) itself was inserted. This view was taken in consonance to the opinion of the Hon'ble Apex Court in the case of Hindustan Coca Cola Beverages P Ltd. Vs. CIT in Appeal (civil) 3765 of 2007 that even in absence of the second proviso to section 40(a)(ia) if it is noticed that the payee had already paid the tax, under such circumstances, the Court held that the payer/deductor can at best be asked to pay the interest on delay in depositing tax and no further liability is warranted. 8. Per contra, the Ld. DR has submitted that the assessee fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Mark Township (P) Ltd (supra.) as well as the Hon'ble Bombay High Court in the case of Pr. CIT-5 Vs. Perfect Circle India Pvt. Ltd.(supra.) have taken a view that the second proviso to section 40(a)(ia) of the Act has retrospective effect from 01.04.2005 being the date from which sub-clause (ia) of section 40(a) was inserted by the Finance ( No.2) Act, 2004. Further, the Hon'ble Supreme Court has held in the Hindustan Coca Cola Beverages P Ltd. Vs. CIT (supra.) that even in absence of second proviso to section 40(a)(ia) if it is noticed that the payee had already paid the tax, on the amount received under such circumstances, the Court held that the payer/deductor can at best be asked to pay the interest on delay in depositing tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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