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TMI Blog2020 (9) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... nal s order in Dipak Parui vs. JCIT [ 2018 (7) TMI 2066 - ITAT KOLKATA ] holds the above proviso inserted in the Act to be a curative one having retrospective effect. We therefore, direct the Assessing Officer to restrict the impugned disallowance to the extent of 30% only We direct the AO to restrict the 100% disallowance confirmed by the CIT(A) to the extent of 30% only taking into account the actual claim of the assessee in its profit and loss account. We order accordingly. Thus, the sole ground of appeal of the assessee is partly allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... both assessment and appellate order, it is vivid that the total addition made by the AO includes ₹ 4,16,409/- which was not claimed by the assessee as expenditure in its profit and loss account. Therefore, in our considered opinion, the disallowance of ₹ 35,46,286/- upheld by the CIT(A) is to be held as 100% disallowance, which has been claimed by the assessee as expenditure in its profit and loss account. However, as per the amendment brought to the Finance Act, 2014 in Section 40(a)(ia) of the Act w.e.f. 01.04.2015, if 100% disallowance made u/s.40(a)(ia) of the Act, that would be restricted to 30% only. Now, the moot question arises before us as to whether the said amendment is having the retrospective effect or not. Ld. AR before us submitted that the above proviso inserted in the Act to be a curative one having retrospective effect and the assessee is entitled the benefit of 30% disallowance as against 100% disallowance made by the AO and confirmed by the CIT(A). In this regard, he placed reliance on the decision rendered by the Gauhati Bench of the Tribunal in case of Tripura State Electricity Corporation Ltd. (supra), wherein it is held as under :- "6. Mr. Goen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is treated as partly accepted in above terms." Further, the Delhi Bench of the Tribunal in the case of Smt. Kanta Yadav (supra) while considering the similar issue has held as under :- "6. We have considered rival submissions and find that issue is covered in favour of the assessee by order of ITAT Jaipur Bench in the case of Shri Rajendra Yadav vs. ITO and Smt. Sonu Khandelwal vs. ITO. In these orders it was held that the disallowance u/s 40(a)(ia) to be restricted to 30% of the addition. In these orders the Tribunal has considered the amended provisions of section 40(a)(ia) of I.T. Act. In these orders the assessment year's involve was 2007-08 and 2008-09. In ITA No. 6312/Del/2016 Smt. Kanta Yadav vs. ITO the present appeal the assessment year is 2012-13. Therefore facts are identical. In this view of the matter and following the above decisions of Jaipur Bench, we set aside and modify the orders of the authorities below and direct the Assessing Officer to restrict the addition to 30% of the total addition made on account of deduction of TDS u/s 40(a)(ia) of the Act." 8. From the above observations of the different benches of the Tribunal, we find that the 100% disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that the purpose of amendment would not serve its object in such a situation unless, it is construed as retrospective after observing as under :- 10. Therefore, in the well-known words of Judge Learned Hand, one cannot make a fortress out of the dictionary; and should remember that statutes have some purpose and object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning. In the case of R.B. Jodha Mal Kuthiala v. CIT [1971] 82 ITR 570 , this Court said that one should apply the rule of reasonable interpretation. A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole. 11. This view has been accepted by a number of High Courts. In the case of CIT v. Chandulal Venichand [1994] 209 ITR 7/ 73 Taxman 349 , the Gujarat High Court has held that the first proviso to section 43B is retrospective and sales-tax for the la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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