Section 40(a)(ia) applies to all sums ( paid or payable) which are subject to TDS. – views of author find approval in recent ruling of the Supreme Court.

[DEV KUMAR KOTHARI]

Recent judgment of the honorable Supreme Court:

SHREE CHOUDHARY TRANSPORT COMPANY VERSUS INCOME TAX OFFICER 2020 (8) TMI 23 - SUPREME COURT.

Earlier articles by author:

Section 40(a) (ia)- different views of High Court on ‘sum payable’, as per author the section should apply in respect of any sum otherwise allowable for the previous year. dt.  September 9, 2013. 

Applicability of provision of Section 40 (a) (ia) – Calcutta High Court in Crescent Export Syndicate. Dt. May 22, 2013  

In this article author has expressed view that the provisions of section 40(a)(ia), are applicable not only to the amount which is shown as payable on the date of balance-sheet, but it is applicable to such expenditure, which become payable at any time during the relevant previous year and was actually paid within the previous year also.

 Section 40(a) view of author find approval in recent judgment of the Supreme Court in case of Palam Gas Service Vs. CIT. dt. May 9, 2017

 S. 40(a)(ia) - CURATIVE AMENDMENT TO REMOVE UNINTENDED HARDSHIP IS RETROSPECTIVE – THE SUPREME COURT RE-AFFIRMS THE RULE. dt. May 9, 2018

 Authors views:

In earlier articles Dt. May 22, 2013  and  dt.  September 9, 2013 the  author has expressed view that section 40(a) (ia) should apply in respect of any sum otherwise allowable for the previous year and not only sum payable as on closing day of previous year. At that time different view were expressed by High Courts and Tribunal.

 

The said view  of author was approved by the Supreme Court in case of  Palam Gas Service Vs. CIT. dt. May 9, 2017. In recent judgment the honorable Supreme Court again reiterated the same view and held that views expressed in case of Palam Gas does not require reconsideration. The judgment has been reported as follows:

SHREE CHOUDHARY TRANSPORT COMPANY VERSUS INCOME TAX OFFICER 2020 (8) TMI 23 - SUPREME COURT .

On the said aspect the final ruling is  summarized and analyzed as follows:  

Counsels for appellant strenuously argued that Section 40(a)(ia) of the Act remains limited in its scope and does not apply to the amount already “paid".

However, honorable Supreme Court observed as follows:

 

1. It is ex facie evident that the term "payable" has been used in Section 40(a)(ia).
2. This is  only to indicate the type or nature of the payments by the assessees to the payees referred therein.
3. The expression "payable" is descriptive of the payments which attract the liability for deducting tax at source and it has not been used in the provision in question to specify any particular class of default on the basis as to whether payment has been made or not.
4.  The view argued  by the learned counsel for the appellant, that this expression “payable” be read in contradistinction to the expression “paid”, sans merit and could only be rejected.
5.   In respectful agreement with the observations in Palam Gas Service that the enunciations in P.M.S. Diesels had been of correct interpretation of the provisions contained in Section 40(a)(ia) of the Act.
6.  The decision in Palam Gas Service covers the entire matter and the said decision, does not require any reconsideration.
7.  Reference to the definition of the term “paid” in Section 43(2) of the Act is of no assistance to the appellant.
8. Similarly, the observations in the case of J.K. Synthetics [1994 (5) TMI 233 - SUPREME COURT] as regards the difference in connotation of the expressions “payable” and “paid”, in the context of liability to pay interest on the tax payable under the Rajasthan Sales Tax Act, 1954, has no co-relation whatsoever to the present case.
1. When it is found that the process of interpretation of Section 40(a)(ia) of the Act in P.M.S. Diesels [2015 (5) TMI 617 - PUNJAB & HARYANA HIGH COURT]  which was  approved by the Supreme  Court in Palam Gas Service (supra), had been with due application of the relevant principles, reference to the decision in the case of Institute of Chartered Accountants of India [1997 (7) TMI 649 - SUPREME COURT] on the general principles of interpretation, does not advance the case of the appellant in any manner.
10. Therefore, the  contention urged on behalf of the appellant that disallowance under Section 40(a)(ia) does not relate to the amount already paid  was  rejected.
11.  Question No.2  was  answered in the negative; against the assessee-appellant and in favour of the revenue.

 Note:

Scope of this article is restricted to the aspect of applicability of provision  to ‘sum payable’ and ‘sum paid’ a or not paid etc. nd other contentions raised or not raised before the Supreme Court are not discussed.