TaxTMI 
TaxTMI 
2020 (9) TMI 859
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....ror in not quashing the assessment order passed by the learned Assessing Officer which is per se illegal, unjust, without jurisdiction, arbitrary and contrary to the provisions of the Act and has been passed on gross violation to the principles of natural justice. 2. That, the learned CIT (A) has committed serious error in not quashing the assessment order which has been passed on the basis of illegal notice u/s 143(2) of the Income-tax Act, 1961 (hereinafter referred as "the Act"). 3. That, the learned CIT (A) has committed serious error in not deleting the addition made by the learned Assessing Officer of Rs. 1,16,05,262/- u/s 36(1)(viia)(a) of the Act. 4. That, the learned CIT(A) has committed serious error in ....
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....sing the entire material available on record as well as the case laws cited by the ld. AR of the assessee, we find that the assessee has actually claimed expenses of Rs. 35,46,286/- in the profit and loss account as against the addition made by the AO of Rs. 39,62,695/-, which has been accepted by the CIT(A) at para 3.2 of the appellate order. On perusal of both assessment and appellate order, it is vivid that the total addition made by the AO includes Rs. 4,16,409/- which was not claimed by the assessee as expenditure in its profit and loss account. Therefore, in our considered opinion, the disallowance of Rs. 35,46,286/- upheld by the CIT(A) is to be held as 100% disallowance, which has been claimed by the assessee as expenditure in its p....
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....disallowance made u/s 40(a)(ia) from 100% to 30% only. This tribunal's order in ITA No. 767/Kol/2016 Dipak Parui vs. JCIT decided on 20.07.2018 holds the above proviso inserted in the Act to be a curative one having retrospective effect. We therefore, direct the Assessing Officer to restrict the impugned disallowance to the extent of 30% only. Necessary computation to follow. This first substantive ground is taken as partly accepted in foregoing terms." Similarly, the Kolkata Bench of the Tribunal in the case of Dipak Parui (supra), wherein it has been held that the amendment w.e.f. 01.04.2015 to be retrospective effect being curative nature and observed as under:- "5. Latter issue before us is that of correctness of s....
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....rs the Tribunal has considered the amended provisions of section 40(a)(ia) of I.T. Act. In these orders the assessment year's involve was 2007-08 and 2008-09. In ITA No. 6312/Del/2016 Smt. Kanta Yadav vs. ITO the present appeal the assessment year is 2012-13. Therefore facts are identical. In this view of the matter and following the above decisions of Jaipur Bench, we set aside and modify the orders of the authorities below and direct the Assessing Officer to restrict the addition to 30% of the total addition made on account of deduction of TDS u/s 40(a)(ia) of the Act." 8. From the above observations of the different benches of the Tribunal, we find that the 100% disallowance made u/s.40(a)(ia) of the Act has been directed to....
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....hich such payment was made to the government. [Para 16]" 9. On careful perusal of the amendment brought to the Section 40(a)(ia) of the Act by the Finance Act, 2014 w.e.f. 01.04.2015, it is clear that the intent of legislature to reduce the hardship, it is proposed that in case of non-deduction or non-payment of TDS on payments made to residents as specified in section 40(a)(ia) of the Act, the disallowance shall be restricted to 30% of the amount of expenditure claimed. The Hon'ble Supreme Court in the case of Allied Motors (P) Ltd. [1997] 224 ITR 677 (SC) has held that amendment was remedial in nature, designed to eliminate unintended consequences which may cause undue hardship to the assessee and which made the provision unworka....
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.... CIT v. Sri Jagannath Steel Corpn. [1991] 191 ITR 676 , has taken a similar view holding that the statutory liability for sales-tax actually discharged after the expiry of the accounting year in compliance with the relevant statute is entitled to deduction under section 43B. The High Court has held the amendment to be clarificatory and, therefore, retrospective. The Gujarat High Court in the above case held the amendment to be curative and explanatory and hence retrospective. The Patna High Court has also held the amendment inserting the first proviso to be explanatory in the case of Jamshedpur Motor Accessories Stores v. Union of India [1991] 189 ITR 70/ 54 Taxman 521. It has held the amendment inserting first proviso to be retros....