2014 (1) TMI 1263

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....made by Assessing Officer on account of disallowance u/s 40a(ia) of the Act.'' 2.2 The facts of the case in brief are that the assessment in this case was completed u/s 143(3) of the I.T. Act, 1961 ((hereinafter referred to as 'the Act') on 17-12-2007 at an income of Rs. 32,97,976/-. The Assessing Officer had made main addition of Rs. 31,02,433/- on account of disallowance u/s 40a(ia) of the Act. The assessee filed the appeal before the ld. CIT(A) against the said assessment order and the ld. CIT(A) deleted the addition of Rs. 31,02,433/- by holding that the assessee was under bona fide belief and good faith and under reasonable cause failed to deposit the TDS within stipulated time. Against the said order of the ld. CIT(A), the Departme....

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....ayment was made. However, the same was paid into the Govt. account only on 02-06-2005 while the return of income was filed on 27-09-2005. The ld. CIT(A) pointed out that by the Finance Act, 2008, the TDS made had to be paid within the previous year in which it was made in respect of any other month of previous year except the last month. For TDS made in the last month of the previous year, the payment had to be made before filing of return of income. The ld. CIT(A) further pointed out that by Finance Act, 2010, the TDS made during the previous year had to be paid before filing of return of income and the amendment was made with retrospective effect from Assessment Year 2005-06. The ld. CIT(A) observed that the amendment was held to be curat....

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....S which was not paid to the account of Central Govt. within the prescribed time, however it was paid before the due date of filing the return specified n Section 139(1) of the Act. On a similar issue, the Hon'ble Calcutta High Court held that amendments in Section 40(a)(ia) is having retrospective operation and upheld the order of the ITAT in the case of CIT vs Virgin Creations, ITA No.302 of 2011, judgement dated 23-11-2011. Although the aforesaid judgement was relating to the issue as to whether the amendment in Section 40(a)(ia) was having retrospective effect or not, but from the ratio laid down in the said case, it is clear that addition u/s 40(a)(ia) of the Act cannot be made if the payment of tax deducted at source has been before....