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TMI Blog2011 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... m sub-contractors. There are 10 sub-contractors to whom gross amount payable was of ₹ 1,23,16,160/-. The amount paid upto 28thd Feb. 2007 was to the tune of ₹ 66,00,882/-. The amount paid after 28-0207 was 41,51,834/-. Such details are available at page 3 of the assessment order. The amounts paid or payable have been considered after excluding the tax deducted at source and profit on sub-contracts by the contractor. The AO verified the payment made to the sub-contractors from the bank statement and the payments made upto 28-02-07 in respect of different sub-contractors are as under:- Name Amount 1. Pushpendra Singh Gehlot ₹ 12.50 lacs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Chapter XVII B of the Act and in respect of any payments or payable in the month of the year then the last month of the previous year the TDS has to be deposited before the end of the previous year. There has been further amendment by the Finance Act 2010 and now the expenditure cannot be disallowed in case the tax deducted at source has been paid before the due date of filing of return. 2.4 Before the ld. CIT(A), the assessee has relied upon the decision of ITAT Mumbai Bench in the case of Bapusaheb Nanasaheb Dhumal vs ACIT (ITA No. 6628 /Mum/2009 for the assessment year 2005-06) dated 25-062010. 2.5 The ld. CIT(A) rejected the contentions of the assessee after observing as under:- 3.4 From the language of Section 40(a)(ia), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not be allowed as deduction. While on the other hand, a deduction who does not deduct the tax during the year (even though the same was deductible) and makes the deduction only during the last month will be an advantageous position, because according to argument of the appellant, in his case the respective payments will be allowed as deduction, even if the payment is made after the end of year, but before due date of filing of return. Obviously this can never be the intention of the legislature. This itself proves the fallacy of argument of the appellant. 3.6 As mentioned 2.6 Before us, the ld. AR has submitted that the assessee claimed before that AO that entire payments was credited in the month of March 07 and tax was deducted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the statuary provisions workable , the amendment is to be construed to relate back to the provisions in respect of which it applies to the remedy. In the following cases, amendments have been held as retrospective though such retrospective was not mentioned by this legislature while introducing such provisions. 1. Allied Motors (P) Ltd. Vs. CIT, 139 CTR 364 (SC) The amendment by Finance Act, 1987 in respect of the insertion of first proviso to Section 43B was held as curative in nature and the same was given retrospective effect from the date of inception of Section 43A. 2. CIT Vs. Alom Extrusions Ltd. , 319 ITR 306 (SC) The amendment by Finance Act , 2003 for bringing about uniformity about payment in tax, duty, ceee and fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ia) of the Act cannot be made. The proviso refers to the deduction of tax at source in the last month and it does not state in respect of tax which are deductible earlier but has not been deducted in earlier month. If the tax has been deducted in any month other then last month is the month of the previous year then the expenditure covered u/s 40(a)(ia) of the Act will not be admissible unless such tax was paid before the end of the previous year. In the instant case, it is undisputed that the assessee has deducted the tax at source in the last month. Therefore, disallowance was not required to be made u/s 40(a)(ia) of the Act. Before us, the ld. AR has filed the copy of the TDS return showing the payment of TDS in the month of May 2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der document shows that FDRs are to be pledged as earnest money against performance guarantee. The assessee has placed the copy of the FDRs taken. We are reproducing few details in respect of FDRs.. 1cutive Engineer, CPWD ACD, Ajmer A/c Asian Const. Co. ₹ 50,000/- 2. Executive Engineer, CPWD ACD, Ajmer A/c Asian Const. Co. ₹ 1,00,000/- 3. Executive Engineer, CPWD ACD, Ajmer A/c Asian Const. Co. ₹ 20,000/- 4. Executive Engineer, CPWD ACD, Ajmer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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