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2015 (2) TMI 113 - AT - Income TaxRevision u/s 263 - AO has not made disallowance of 170 payments towards professional fees and contract charges on which tax had not been deducted at source - Retrospective v/s prospective - Whether to follow the decision of the Hon’ble Special bench [Bharati Shipyard Ltd. 2011 (9) TMI 258 - ITAT MUMBAI] taking the view that Amendment to Sec.40(a)(ia) is prospective or the decision of the Hon’ble Calcutta High Court[2011 (11) TMI 348 - CALCUTTA HIGH COURT] taking a contrary view? - Held that:- Considering the decision of Tej International (P) Ltd. v. Dy. CIT (2000 (9) TMI 215 - ITAT DELHI-A ) wherein it was held that in the hierarchical judicial system that we have in India, the wisdom of the court below has to yield to the higher wisdom of the Court above, and therefore, once an authority higher than this Tribunal has expressed its esteemed views on an issue, normally, the decision of the higher judicial authority is to be followed. The Bench has further held that the fact that the judgment of the higher judicial forum is from a non-jurisdictional High court does not really alter this position, as laid down by the Hon'ble Bombay High Court in the case of CIT v. Godavaridevi Saraf (1977 (9) TMI 24 - BOMBAY High Court). Amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 was held to be retrospective from 1.4.2005. If the amendment is considered as retrospective from 1.4.2005, the effect will be that payments of TDS to the credit of the Government on or before the last date for filing return of income u/s.139(1) of the Act for the relevant AY have to be allowed as deduction. Admittedly in the case of the Assessee payments were so made before the said due date and in terms of the decision of the Hon’ble Calcutta High Court in COMMISSIONER OF INCOME TAX, KOL-XI, KOL Versus VIRGIN CREATIONS [2011 (11) TMI 348 - CALCUTTA HIGH COURT] no disallowance could be made by the AO u/s. 40(a)(ia) of the Act. Admittedly in the present case, the Assessee had deposited the tax deducted at source on or before the due date for filing return of income u/s.139(1) of the Act and therefore the impugned disallowance deserves to be deleted. Decided in favour of assessee.
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