TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 1067
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....n'ble ITAT, Spl.Bench, Visakhapatnam in the case of M/s.Merilyn Shipping & Transports, Visakhapatnam for A. Y .2005-06 where in the similar issue of applicability of the amendment in the provisions of section 40(a)(ia) of the Act was contested 3. For these and other reasons it is submitted that the order of the CIT(A) may be set-aside and that of the AO restored" 2. Disallowance of Rs. 12,39,1l,827/- was made under section 40(a)(ia) of the Income Tax Act, 1961 (the Act) on the plea that TDS payments under section 194C was not made within the due date. During the course of appellate proceedings Ld. CIT(A) required the AO to explain the disallowance as according to assessee disallowance was wrongly made. In para 4.5 Ld. CIT(A) has returned a finding that AO has stated that on the disallowed amount TDS has been deducted and paid on 26/09/2009 i.e. before the due date of filing the return and on these facts Ld. CIT(A) has given relief to the assessee by following the order of ITAT Mumbai in the case of Piyush C. Mehta vide order dated 1114/2012 in ITA No.1321/Mum/2009, the relevant observations from the said order has been reproduced in the order of Ld. CIT(A) in para 4.5 and in....
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....r, 2008 the AO argued that as per section 40(a)(ia) the due date of payment was 31.3.2009. Since the appellant has paid the taxes to the Government account only by 26.9.2009, before filing the return they have to be disallowed as per the provisions of section 40(a) (ia). He has disallowed amount of Rs. 12,39,11,8271-. As has been discussed earlier appellant has claimed that his case is covered by the decision of Calcutta High Court in the case of Virgin Creations ITA No. 302 of 2011. I find that the only issue is to be decided is whether in the case of the appellant, disallowance can be made under the provisions of section 40(a)(ia) taking into consideration the fact that the appellant has deposited the tax deducted during the financial year before filing the return of income within the time prescribed under section 139(1). In this case appellant has deposited the tax deducted at source into Government account before filing of return within time allowed under section 139(1). The issue is squarely covered by the decision of Mumbai Tribunal in the case of Golden Stables Lifestyle Centre Pvt. Ltd. in ITA No. 51451M/09 dt. 13.9.2010 and the decision of Mumbai ITAT in the case of Piyu....
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....High Court will prevail over the decision of Special Bench. It is also observed by the ITAT that the amendment being remedial in nature could apply retrospectively and will cover even matter of A. Y 2005-06. The Assessing Officer has been given opportunity to rebut this contention of the appellant. He has also filed a remand report. No other different view of judicial authority is brought to my notice. Hence it is concluded that the sub-contract payments made by the appellant amounting to Rs. 12,39,11,8271- are not hit by the provisions of section 40(a)(ia) as deducted tax has been paid to the Government account before filing of return of income. Respectfully following the decision of Calcutta High Court and also decision of jurisdictional IT AT in the cases cited supra the disallowance u/s. 40(a)(ia) amounting to Rs. 12,39, 11,827/- is deleted. " 5.1 In view of above discussion, the only question we have to decide is that whether Ld. CIT(A) has committed any error in deleting the disallowance by following the decision of IT AT Mumbai in the case of Piyush C. Mehta(supra) in which it has followed the decision of Hon'ble Calcutta High Court in the case of Virgin Creation (supra....
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....: Thus, considering relevant legislative changes made by the Parliament from time to time and. some of the decisions relevant to consider the question of retrospectively raised in these present appeals, the focal question, therefore, would be whether the amendment brought about by way of Finance Act 2010 in Section 40 (a)(ia) with effect from 1st April 2010 could be said to be clarificatory in nature for attending to unintended consequences, and therefore, is having retrospective effect from 1st April 2005. 16: A closer examination needs to be done as to whether the amended provision aims to expand the prevailing position and whether the same being in the nature of curative, retrospectively of the same is permissible as is being contended for and on behalf of the assessee. At this stage, therefore, the true effect of such amendment needs to be discerned. 16.1: It is demonstrated before us that the TDS provision caused unintended inexplicable situation whereby the assessee who deducted the tax at source from the payments made by it for and on behalf of the Government and then if misses out the time limit of depositing the same with the Treasury within the time prescribed, the am....
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....b-section (1) of Section 139. 1 'his has been given retrospective effect from 1st April 2010. 16.5: Of course. the Legislature has given the effect from a specified date and applied the same to A. Y. 2010-11 and subsequent years, this provision being curative in nature, its effect needs to be read retrospectively in operation. It's very purpose would not be sub-served, if the effect is limited to A. y. 2010-11 and subsequent years only. Strict construction if leads to a result not intended to be fulfilled by the object of legislation and another construction is possible apart from literal construction, then that construction needs to be preferred as held in a decision in case of CIT V. Alom Extrusion Limited [Supra). 16.6: We also cannot be oblivious of submissions not denied by the other side that various representations were made to the Finance Minister to bring about suitable amendment as the assessee otherwise was losing genuine deduction of expenditure on this count as also reflected in the speech of Finance Minister so also in the memorandum explaining the provision of the Finance Bill. 16. 7: Giving plain or natural meaning to the amendment as contended by the ....