TMI Blog2012 (6) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of law considered by the CIT (A) for granting relief the proper course would be to remand the matter back to the Tribunal to re- consider - in favour of assessee. - TC(A). Nos. 124 and 125 of 2012 - - - Dated:- 2-4-2012 - Chitra Venkataraman and K Ravichandra Baabu, JJ For Appellant: Mr V S Jayakumar For Respondent: Mr T Ravikumar Standing Counsel for Income Tax JUDGEMENT Per: Chitra Venkataraman, J: Tax Case (Appeals) are at the instance of the assessee against the order of the Tribunal by raising following questions of law:- "1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in not considering the issue raised by the Revenue in its grounds of appeal that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crisis, the assessee company was unable to pay the T.D.S. amount on the due date. However, the remittance was made well before the due date for filing the return of income. But the Assessing Officer disallowed a sum of Rs.3,42,30,735/- under Section 40(a)(ia) of the Income Tax Act for the delay in remittance of tax deducted at source. The Assessing Authority, however, rejected the claim on the ground that the deduction had been made beyond the accounting year. Aggrieved by this, the assessee filed an appeal before the Commissioner of Income Tax (Appeals). 4. In considering the claim of the assessee for the assessment year 2007-08, the Commissioner of Income Tax (Appeals) referred to the contention taken by the assessee as regards the amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted at source throughout the relevant previous year and the assessee could not controvert the said T.D.S. ledger produced by the Department's representative. Going by the fact that the assessee had paid the TDS on transporting charges aggregating to Rs.3,42,30,735/- only on 17.7.2007 and not on 31.3.2007 and payment to each party during the year exceeded the aggregate amount of Rs.50,000/-, the Tribunal allowed the Revenue's appeal and rejected the cross appeal filed by the assessee. Aggrieved by this, present appeal is filed before this Court at the instance of the assessee. 7. Learned counsel for the appellant pointed out that a perusal of the order of the Assessing Authority shows that the entire assessment was made on a part verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in [1997] 224 ITR 677 (SC) - ALLIED MOTORS P. LTD v. CIT and [2009] 319 ITR 306 (SC) - CIT v. ALOM EXTRUSIONS LTD , it was held that Section 40(a)(ia) was inserted as a remedy to make the provision workable, and the same required to be treated with retrospective operation, so that reasonable deduction can be given. 9. Per contra, learned standing counsel for the Revenue pointed out that on the basis of the ledger entries, the Tribunal clearly pointed out that the payments made on each occasion by the assessee crossed over Rs.20,000/- and in none of the cases, it was below Rs.50,000/-. Apart from that, when the amendment of Finance Act, 2010 is not given retrospective effect, the question of extending the benefit of the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee raised a dispute that the Tribunal would not be justified in coming to the conclusion without affording opportunity to the appellant by placing reliance on the finding of the Assessing authority that he had partly verified the ledger account of the assessee, yet, the details from the assessee's ledger would show the extent of payment made to each of the parties to go for T.D.S. However, as regards the amendment brought to the provisions, it is relevant to note that the appeal before this Court is relating to the assessment year 2007-08. The provisions as it stood during the relevant year has to be seen. Finance Act, 2008 amending Section 40(a)(ia) with effect from 1.4.2005 Section 40(a)(ia) Amounts not deductible. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 as under: "12.1 As per the provisions of sub-clause (ia) of clause (a) of section 40, any interest, commission, brokerage, fees for professional services, fees for technical service payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work, rent and royalty on which tax is deductible at source and such tax has not been deducted or, after deduction, has not been paid during the previous year, or in the subsequent year before the expiry of the time prescribed under sub-section (1) of section 200 shall not be allowed as deduction. However, the sum is allowed as a deduction in the year of actual payment of the TDS. 12.2 To mitigate any hardship caused by the above provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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