TaxTMI 
TaxTMI 
2011 (6) TMI 910
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....t this order only when the AO initiated proceedings under Section 271(1)(c). Thereafter, the assessee engaged another counsel and filed the appeal. It is also stated that the assessee has removed the earlier counsel, Shri Vishu Patel. He therefore submitted that the delay in filing of the appeal may be condoned. The learned DR, on the other hand, opposed the condonation of the delay. 4. After considering the facts and circumstances of the case and the submissions of both the sides, we deem it proper to condone the delay. While doing so, we rely upon the judgment of the Hon'ble Supreme Court in the case of Collector Land Acquisition Vs. MST. Katiji and Others, 167 ITR 471 (SC) wherein Hon'ble Apex Court has laid down that court should take liberal approach while considering the issue of condonation of delay. In this regard Their Lordships observations are as under: "The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression " sufficient cause " in section 5 is adequately elastic to enable the courts to apply the....
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....), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under subsection (1) of section 200: Provided that where in respect of any such sum, tax has been deducted in any subsequent year or, has been deducted in the previous year but paid in any subsequent year after the expiry of the time prescribed under sub-section (1) of section 200, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid. Explanation:- For the purposes of this sub-clause: (i) "commission or brokerage" shall have the same meaning as in clause ) of the explanation to section 194H; (ii) "fees for technical services" shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (11) of section 9; (iii) "professional services" shall have the same meaning as in clause (a) of the explanation to section 194J; (iv) "work" shall have the same meaning as in explanation- Ill to section 194C;" Subsequently, in sub-clause ....
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....urce and such tax has not been deducted or after deduction has not been paid: (A) in a case where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-section (1) of section 139; or (B) in any other case, on or before the last day of the previous years. From the above amendments in this provision of Section 40(a)(ia) of the Act it is clear that the intention of the Legislature is to operates retrospectively to serve its object of removing hardship faced by the taxpayers. While bringing this amendment by Finance Bill, 2010, the object was explained in Notes On Clauses and the relevant Clause-12 was explained as under: "Clause 12 of the Bill seeks to amend section 40 of the Income-tax Act relating to amounts not deductible. Under the existing provisions contained in sub-clause (ia) of clause (a) of the aforesaid section, non-deduction of tax or non-payment of tax after deduction on payment of any sum by way of interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident or amounts payable to a contractor or....
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.... 1339]. Further Hon'ble apex court in the case of CIT v. Podar Cement Pvt. Ltd., (1997) 226 ITR 625, 652 (SC) settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. Further more in similar circumstances, Hon'ble apex court in the case of Allied Motors (P). Ltd. v CIT (1977) 224 ITR 677,687 (SC) held that the amendment will not serve its object in such a situation unless it is construed as retrospective. The Hon'ble apex court held as under: "The departmental understanding also appears to be that section 43B, the proviso and Explanation 2 have to be read together as expressing the true intention of section 43B. Explanation 2 has been expressly made retrospective. The first proviso, however, cannot be isolated from Explanation 2 and the main body of section 43B. Without the first proviso, Explanation 2 would not obviate the hardship or the unintended consequences of section 43B. The proviso supplies n obvious, omission. But for this proviso the ambit of section 43B becomes unduly wide bringing within its scope those payments, which were not intended to be prohibited from the category of permissible deductions.....
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....ection 43B will be available only prospectively does not appear to be correct. As observed by G. P. Singh in his Principles of Statutory Interpretation, 43B will be available only prospectively does not appear to be correct. As observed by G. P. Singh in his Principles of Statutory Interpretation, 4th Edn., page 291. "It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended." In act the amendment would not serve its subject in such a situation, unless it is construed as retrospective. The view, therefore, taken by the Delhi High Court cannot be sustained." 12. Accordingly, we are of the view that the Amendments brought out in Section 40(a)(ia) of the Act from time-to-time was clarificatory and when an amendment is declaratory and clarificatory in nature, the presumption against its retrospectivity is not applicable and amendments of this kind only declare. It is no doubt true that, ordinarily, a statute, and particularly when the same has been made applicable with effect from a particular date should be construed prospectively and not retrospectively. But this principle will not be applicable in a c....