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TMI Blog2012 (6) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... of Finance Act, 2010 in Section 40(a)(ia) is retrospective or not? 2. Whether the Tribunal is right in law in holding that the additional evidence filed by the revenue is admissible and at the same time for holding that the assessee had not converted those additional evidence without adverting to the Chart filed at the instance of the assessee, thereby violating the principles of natural justice? 3. Whether the Tribunal is right in dismissing the cross objection filed by the assessee? 4. Whether the Tribunal is right in not remanding the case back to the files of the lower authorities for the proper disposal of the case before the lower authorities? " 2. The two appeals are filed by the assessee against the order of the Tribunal, one a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 1.4.2005 under the Finance Act, 2008, mitigating the rigour of Section 40(a)(ia) and the circular dated 27.3.2009 that the amendment would apply on and from the assessment year 2005-06. Referring to the circular of the Board dated 27.3.2009, particularly with reference to the amendment brought under the Finance Act, 2008 with retrospective effect from 1.4.2005, the Commissioner of Income Tax (Appeals) held that since tax deducted at source had been paid well before the due date for filing the return of income, the assessee was entitled to have the deduction. 5. As against the substantive portion of the order, the Revenue went on appeal contending that the amendment brought under the Finance Act, 2010 are being retrospective one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently, the view of the Tribunal as though the entire accounts had been gone through to come to the conclusion that the payment made on each occasion exceeded Rs.20,000/- and aggregate payment to one party was less than Rs.50,000/- was not correct. In any event, going by the circular, the Tribunal should have considered the relief granted by the Commissioner of Income Tax (Appeals) and rejected the case of the Revenue. In any event, a reading of the order of the Tribunal would show that the Tribunal never adverted to the relevancy of the Board's circular. Hence, the order of the Tribunal has to be set aside and the matter may be remitted back to the Tribunal for fresh consideration as to the applicability of the amended provision under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. When a specific query was raised by the Court, learned Standing Counsel sought time to get instructions from the Department. Though T.D.S. deduction from April, 2006 to February, 2007 was not deposited before 31.3.2007, having regard to the fact that the same was deposited only on 7.7.2007, the claim could be considered only for the next assessment year viz., 2008-09. 10. A perusal of the order of the Tribunal shows that in considering the claim of the assessee in the appeal preferred by the Revenue and from the rejoinder filed by the Revenue, it is seen that the total payments exceeded Rs.50,000/- in each case and payments were also in excess of Rs.20,000/-. In paragraph 12 of the order of the Tribunal, it was specifically poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Sections 30 to 38, the following amounts shall not be deducted in computing the income chargeable under the head 'Profits and gains of business or profession'- (ia) any interest, commission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted or, after deduction, has not been paid, - (A) in a case, where the tax was deductible and was so deducted during the last month of the previous year, on or before the due date specified in sub-Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of sub-clause (ia) of clause (a) of section 40. The amendment allows additional time (till due date of filing of return of income) for deposit of TDS pertaining to deductions made for the month of March so that disallowance under sub-clause (ia) of clause (a) of section 40 is not attracted in such cases. Thus where the last date for filing the return of income in case of a taxpayer (deductor) is 30th September, he will get additional time of six months (April to September) for depositing the tax deducted at source on an expenditure incurred or payment made in the month of March so as to escape disallowance under sub-clause (ia) of clause (a) of section 40. 12.3 Applicability: This amendment has been made applicable with retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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