TaxTMI 
TaxTMI 
2018 (4) TMI 1426
X X X X Extracts X X X X
X X X X Extracts X X X X
....1. On the facts and in the circumstances of the case and in law, the Ld. CIT(Appeals) erred in deleting the disallowance of Rs. 52,70,069/- made u/s 40(a|(ia) of the Act. 2. The Ld. CIT(A) erred in holding that that amendment made by the Finance Act, 2010 w.e.f. 01.04.2010 in section 40(a)(ia) of the Act is having retrospective effect without appreciating the ratio laid down by the Hon'ble Supreme Court in the case of Virtual Soft System Ltd. vs CIT 289 ITR 83 (SC) holding that it is well-settled legal position that an amendment can be considered to be declaratory and clarificatory only if the statue itself expressly and unequivocally states that it is a declaratory and clarificatory provision. If there is no such clear statement in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ding in section 191 that the assessee would be liable to pay the tax deductible at source directly if it is not so deducted. The assessing officer has not accepted the explanation of the assessee. The assessing officer held that the assessee has violated the provision of section 40(a)(ai) and disallowed the claim of the assessee. 5. Aggrieved assessee filed appeal before the ld. CIT(A). The ld. CIT(A) has allowed the appeal of the assessee. 6. We have heard both the sides and perused the material on record carefully. The assessee had paid an amount of Rs. 52,70,069/- to 6 transporters between the period 01.04.2006 to 28.02.2007 and had also deducted TDS on this amount, however, the TDS so deducted had been deposited to the Government acco....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be given credit in the very assessment year". 7. We have also noticed that the jurisdictional Hon'ble Court in the case of Ashok T Patel 43 taxmann.com 27 (Guj) held that amendment in section 40(a)(ia) by Finance Act, 2010 would apply retrospectivelyIn view of the above facts and judicial finding we observed that If tax deducted is deposited by assessee before due date of filing return of income, same is required to be given credit in very same assessment year. Therefore, the issue is now covered in favour of the assessee by the decision of the jurisdictional High Court and accordingly, we are inclined with the decision of the learned CIT appeal directing the assessing to delete the disallowance made u/s 40(a)(ia). Therefore the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T rule is reproduced here as under:- " No disallowance under sub-section (3) of section 40A shall be made and no payment shall be deemed to be the profits and gains of business or profession under sub-section (3A) of section 40A where a payment59 or aggregate of payments made to a person in a day, otherwise than by an account payee cheque drawn on a bank or account payee bank draft, exceeds twenty thousand rupees60 in the cases and circumstances specified hereunder, namely :- 61(a) where the payment is made to- (i) the Reserve Bank of India or any banking company62 as defined in clause (c) of section 5 of the Banking Regulation Act, 1949 (10 of 1949); (ii) the State Bank of India or any subsidiary bank63 as defined in section 2 of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvices rendered by the assessee to such payee; 67(e) where the payment is made for the purchase of- (i) agricultural or forest produce; or (ii) the produce of animal husbandry (including livestock, meat, hides and skins) or dairy or poultry farming; or (iii) fish or fish products68; or (iv) the products of horticulture or apiculture, to the cultivator, grower or producer of such articles, produce or products; (f) where the payment is made for the purchase of the products manufactured or processed without the aid of power in a cottage industry, to the producer of such products; 69(g) where the payment is made in a village or town, which on the date of such payment is not served by any bank, to any person who ordinarily re....