ITO, Jaipur v. SPEEDWAYS CARRIER P LTD., Jaipur

ITA 216/JPR/2011 | 2005-2006
Pronouncement Date: 08-07-2011 | Result: Dismissed

Appeal Details

RSA Number 21623114 RSA 2011
Assessee PAN AAECS2610M
Bench Jaipur
Appeal Number ITA 216/JPR/2011
Duration Of Justice 3 month(s) 29 day(s)
Appellant ITO, Jaipur
Respondent SPEEDWAYS CARRIER P LTD., Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 08-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 08-07-2011
Assessment Year 2005-2006
Appeal Filed On 10-03-2011
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L.KALRA) ITA NO. 216/JP/2011 ASSESSMENT YEAR: 2005-06 PAN: AAECS 2610 M THE ITO VS. M/S. SPEEDWAYS CARRIER (P) LTD. WARD- 3(2) D-3 DURGA MARG BANIPARK JAIPUR JAIPUR (APPELLANT ) (RESPONDENT) DEPARTMENT BY : SHRI D.K. MEENA ASSESSEE BY : NONE ORDER PER N.L. KALRA AM:- THE REVENUE HAS FILED APPEAL AGAINST ORDER OF THE LD. CIT(A)-1 JAIPUR DATED 03-01-2011 FOR THE ASSESSMENT YEAR 20 05-06. 2.1 THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE L D. CIT(A) IS NOT JUSTIFIED IN DELETING DISALLOWANCE OF RS. 14 53 871 /- MADE U/S 40(A)(IA) EVEN THOUGH THE ASSESSEE HAD DEPOSITED THE TDS BEYOND TH E TIME LIMIT PRESCRIBED U/S 200(1) OF THE INCOME TAX ACT 1961. 2.2 THE AO DURING THE COURSE OF ASSESSMENT PROCEEDI NGS NOTICED THAT THE ASSESSEE HAS DEDUCTED THE TAX AT SOURCE IN RESPECT OF THE PAYMENTS MADE TO 2 CERTAIN PARTIES BUT THE SAME WAS NOT PAID DURING TH E PREVIOUS YEAR. THE AO ACCORDINGLY DISALLOWED A SUM OF RS. 14 53 871/- U/S 40(A)(IA) OF THE ACT. 2.3 THE LD. CIT(A) HAS DELETED THE ADDITION BY NOTI CING THAT TDS HAS BEEN PAID IN JULY 2005 I.E. BEFORE THE DUE DATE OF FILI NG OF RETURN OF INCOME AND HENCE DISALLOWANCE 40(A)(IA) CANNOT BE MADE. 2.4 WE HAVE HEARD THE LD. DR AND PERUSED THE MATERI ALS AVAILABLE ON RECORD. IT WILL BE USEFUL TO REPRODUCE THE RELEVANT DETAILS IN RESPECT OF THE EXPENSES ON WHICH TAX AT SOURCE WAS DEDUCTED AND DE POSITED. S.N. NAME OF THE PARTY AMOUNT OF PAYMENT AMOUNT OF TDS DEDUCTED DATE ON WHICH TDS MADE DATE ON WHICH TDS PAID IN CENTRAL GOVT. AMOUNT 1. SAI TRANSPORT 12 14 671 12 390 31-03-05 21-07-05 2. HARISH KISHORE LAKOTIYA 96 092 9 801 31-03-05 06-06-05 3. SHREE SHYAM LABOUR CONTRACTOR 95 470 974 31-03-05 21-07-05 4. SARLA ENTERPRISES 38 242 803 26-05-04 01-06-05 5. TRIVENI ROADLINES 9 396 103 23-11-04 27-05-05 14 53 871 2.5 BEFORE AMENDMENT BY FINANCE ACT 2010 IT WAS P ROVIDED U/S 40(A) (IA) THAT IN CASE THE TAX WAS DEDUCTED DURING LAST MONTH OF PREVIOUS YEAR AND IF NOT PAID BEFORE DUE DATE SPECIFIED IN SECTION 13 9(1) OF THE ACT THEN 3 DISALLOWANCE OF EXPENDITURE CAN BE MADE. IN RESPECT OF FIRST THREE PAYMENTS TDS HAS BEEN DEDUCTED ON THE LAST DATE OF THE PREVI OUS YEAR AND THE SAME HAS BEEN PAID BEFORE DUE DATE OF FILING OF THE RETU RN THEREFORE DISALLOWANCE IN RESPECT OF THE FIRST THREE PAYMENTS WHICH TOTAL LED TO RS. 14 06 233/- COULD NOT HAVE BEEN MADE ON ACCOUNT OF AMENDMENT BY FINAN CE ACT 2008 WITH RETROSPECTIVE EFFECT FROM 01-04-2005. THE AO HAS PA SSED THE ORDER ON 14 TH DEC. 2007 AND AS ON THAT DATE THE RETROSPECTIVE AME NDMENT WAS NOT IN THE STATUTE BOOK. THERE IS AN AMENDMENT IN SECTION 40(A )(IA) BY THE FINANCE ACT 2010 AND IT HAS BEEN PROVIDED THAT EXPENDITURE WILL NOT BE DISALLOWED IN CASE THE TDS IS PAID BEFORE THE DUE DATE OF FILING OF TH E RETURN. SUCH AMENDMENT IS SIMILAR TO THE AMENDMENT MADE U/S 43B OF THE ACT . THE HON'BLE APEX COURT IN THE CASE OF ALLIED MOTORS (P) LTD. VS. CIT 224 ITR 677 HELD THAT AMENDMENT U/S 43B IS CURATIVE IN NATURE AND WILL BE RETROSPECTIVE. 2.6 FURTHER AMENDMENT WAS MADE IN SECTION 43B BY TH E FINANCE ACT 2003 AND THE HON'BLE APEX COURT IN THE CASE OF CIT VS. ALOM EXTRUSION LTD. 319 ITR 306 HELD THAT SUCH AMENDMENT WAS CURA TIVE IN NATURE AND WILL BE APPLIED RETROSPECTIVELY. THE HON'BLE APEX COURT IN THE CASE OF IN THE CASE OF CIT VS. PODDAR CEMENT (P) LTD. 226 ITR 625 HAD AN OCCASION TO CONSIDER THE AMENDMENT IN SECTION 27(III) OF THE AC T VIDE WHICH THE MEANING OF THE EXPRESSION OWNER OF HOUSE PROPERTY WAS ENLARGED. THE 4 HON'BLE APEX COURT HELD THAT THIS AMENDMENT IS INTE NDED TO SUPPLY AN OBVIOUS OMISSION OR TO CLEAR UP DOUBTS AS TO THE ME ANING OF THE WORD OWNER AND WAS THEREFORE DECLARATORY OR CLARIFICA TORY. KEEPING IN VIEW THE FACTS THAT WHEN THE AMENDMENT IS TREATED AS CURATIV E THEN SUCH AMENDMENT IS TO BE CONSTRUED TO RELATE BACK THE PROVISIONS IN RE SPECT OF WHICH IT SUPPLIES A REMEDIAL EFFECT. LOOKING TO THE AMENDMENT MADE BY T HE FINANCE ACT 2010 WE HOLD THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETI NG THE DISALLOWANCE. 3. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08-0 7-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED; 08/07/2011 *MISHRA COPY FORWARDED TO :- 1. THE ITO WARD- 3 (2) JAIPUR 2. M/S SPEEDWAYS CARRIER (P) LTD. JAIPUR BY ORDER 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE LD.DR 6. THE GUARD FILE (ITA NO.216/JP /11) AR ITAT JAIP UR 5 6