2023 (11) TMI 758 - HC - Income Tax

Second proviso to Section 40(a)(ia) applies retrospectively from April 1, 2005, relaxing TDS deduction disallowance requirements

The Delhi HC held that the second proviso to Section 40(a)(ia) has retrospective effect from April 1, 2005. The provision disincentivizes non-deduction of ... Scope of Second proviso to Section 40(a)(ia) - retrospective or prospective effect - HELD THAT:- The purpose of Section 40(a)(ia) of the Act is to disincentivize non-deduction of tax at source by disallowing, as deduction, the amount paid to the resident/payee. The second proviso appended to it, however, relaxes the rigour of the said provision by making its application dependent on the assessee being declared as ‘assessee in default’ under Section 201(1) of the Act. It is not in dispute that, in this case, no adverse findings were returned by the AO concerning fulfilment of conditions stipulated in the first proviso appended to Section 201(1) of the Act; an aspect which is noted both by the CIT(A) and the Tribunal. As to the retrospective applicability of the second proviso to Section 40(a)(ia) and first proviso to section 201, the court in the Ansal Land Mark Township Pvt. Ltd. [2015 (9) TMI 79 - DELHI HIGH COURT] is of the view that the above reasoning of the Agra Bench of ITAT Rajiv Kumar Agarwal [2014 (6) TMI 79 - ITAT AGRA] as regards the rationale behind the insertion of the second proviso to Section 40(a) (ia) of the Act and its conclusion that the said proviso is declaratory and curative and has retrospective effect from 1st April 2005, merits acceptance. Issues Involved:1. Validity of the Tribunal's order dated 27.04.2023.2. Compliance with conditions under Section 201(1) of the Income-tax Act, 1961.3. Applicability of Section 40(a)(ia) and its second proviso.4. Retrospective effect of the second proviso to Section 40(a)(ia).Summary:1. Validity of the Tribunal's Order:The appeal concerns the Assessment Year (AY) 2008-09, where the appellant/revenue challenges the order dated 27.04.2023 passed by the Income Tax Appellate Tribunal (Tribunal). The Tribunal's order in favor of the respondent/assessee was the result of a second round of litigation. Initially, the Tribunal remanded the matter to the Assessing Officer (AO) to verify compliance with the proviso to Section 201(1) of the Income-tax Act, 1961.2. Compliance with Conditions under Section 201(1):The AO did not return any adverse findings regarding the conditions prescribed in the first proviso to Section 201(1). The Commissioner of Income Tax (Appeals) [CIT(A)] noted that the AO's observations were beyond the scope of the Tribunal's directions. Consequently, the CIT(A) deleted the addition of Rs. 17,67,16,747/- made by the AO under Section 40(a)(ia).3. Applicability of Section 40(a)(ia):The amount added to the respondent/assessee's income was related to site rent payments to the Delhi Transport Corporation (DTC) for advertisement space. The Tribunal and CIT(A) found no adverse findings by the AO regarding the compliance with Section 201(1). The court referenced its previous decision in Commissioner of Income Tax v. Ansal Land Mark Township Pvt. Ltd., emphasizing the conditions under which an assessee is not deemed to be in default.4. Retrospective Effect of the Second Proviso to Section 40(a)(ia):The central issue was whether the second proviso to Section 40(a)(ia) should be given retrospective effect. The court agreed with the rationale in the Ansal Land Mark case, which held that the second proviso is declaratory and curative, thus having retrospective effect from 1st April 2005. This interpretation aligns with the legislative intent to avoid undue hardship when the corresponding income is taxed.Conclusion:The court found no substantial question of law in the appeal and closed the case, pending the Supreme Court's decision on the respondent's/assessee's case for AY 2007-08. The Registry was directed to dispatch a copy of the judgment to the respondent/assessee.