2017 (3) TMI 1250 - AT - Income Tax

Tribunal restores Section 115JB issue to Assessing Officer & upholds CIT(A)'s decision on retrospective TDS amendment.

The Tribunal condoned the delay in filing the Cross Objection (CO) and restored the matter of the applicability of Section 115JB to the Assessing Officer ... Additions u/s 40(a)(ia) - Delay in deposit of tds - Held that:- TDS pertaining to the financial year should have been deducted & paid within the time allowed under section 139(1) of the Act. The amendment to section 40(a)(ia) of the Act i.e. vide Finance Act, 2010 w.e.f. 01.04.2010, whereby the deposit of tax deducted at source, deposited with the central government by the due date of the filing the return for the relevant year, i.e., where the tax was deductible at any time during the relevant previous year, has been interpreted by the Hon'ble courts of law as retrospective in nature, so that it would apply for the current year as well. The decisions by the higher courts of law, as in the case of CIT v. Rajinder Kumar [2013 (7) TMI 454 - DELHI HIGH COURT] and CIT v. Naresh Kumar [2013 (9) TMI 275 - DELHI HIGH COURT ] have read down the said amendment, holding it as retrospective on the ground of it being only clarificatory and toward mitigating the hardship being caused and, further, of the payment by due date qua the deductions effected for the first eleven months of the relevant previous year as sufficient compliance of the provision. - Decided against the revenue. Issues Involved:1. Condonation of delay in filing the Cross Objection (CO).2. Applicability of Section 115JB of the Income Tax Act, 1961.3. Adjustments in book profit as per Section 115JB.4. Deletion of addition made by the AO on account of TDS deposited after the stipulated time.Detailed Analysis:1. Condonation of Delay in Filing the Cross Objection (CO):The assessee's CO was barred by limitation for 3 years and three months. The assessee claimed ignorance of the non-applicability of Section 115JB in case of a company incurring losses and filed the CO immediately after receiving advice from a consultant. The assessee cited several judgments to support the condonation of delay, emphasizing that the delay was not deliberate or intentional. The Tribunal, considering the principles laid down by the Supreme Court, found the assessee's explanation bona fide and condoned the delay, admitting the appeal for hearing.2. Applicability of Section 115JB of the Income Tax Act, 1961:The assessee argued that Section 115JB was not applicable as the company had declared a loss due to unabsorbed depreciation and had not recommended any dividend in the last two years. The Tribunal noted that this issue was not raised before the CIT(A) and thus was not adjudicated. However, since it was a legal issue, the Tribunal admitted it and restored the matter to the AO for fresh adjudication in accordance with the law, relying on the Supreme Court's judgment in National Thermal Corporation of India vs. CIT.3. Adjustments in Book Profit as per Section 115JB:The Revenue contended that the CIT(A) erred in accepting the book profit computed by the assessee without making required adjustments as per Section 115JB. The Tribunal noted that this issue depended on the outcome of the assessee's CO, which was restored to the AO for fresh adjudication. Consequently, this issue was also restored to the AO for fresh adjudication.4. Deletion of Addition Made by the AO on Account of TDS Deposited After the Stipulated Time:The Revenue argued that the CIT(A) erred in deleting the addition made by the AO for TDS deposited after the stipulated time, asserting that the amendment to Section 40(a)(ia) by the Finance Act 2010 was applicable prospectively from AY 2010-11. The Tribunal observed that the amendment was interpreted by higher courts as retrospective, applying to the current year as well. Therefore, the Tribunal found no infirmity in the CIT(A)'s order and upheld the deletion of the addition.Conclusion:The Tribunal condoned the delay in filing the CO and restored the matter regarding the applicability of Section 115JB to the AO for fresh adjudication. The issue of adjustments in book profit as per Section 115JB was also restored to the AO. The Tribunal upheld the CIT(A)'s decision regarding the deletion of the addition made by the AO on account of TDS deposited after the stipulated time. The Revenue's appeal was partly allowed for statistical purposes, and the assessee's CO was allowed for statistical purposes.