TMI Blog2012 (9) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... hreadbare and also basing on the remand report submitted by the AO. No infirmity in the order of the CIT(A) Dis-allowance u/s 40(a)(ia) - payment after due date but before filing of the return - Held that:- Amendment brought about by the Finance Act, 2010 w.e.f. 1.4.2010 has to be treated as retrospective w.e.f. 1st April, 2005,the date on which the Section 40(a)(ia) has been inserted by the Finance (No.2) Act,2004. Therefore, in view of payment before filing of return, dis-allowance u/s 40(a)(ia) is unwarranted. Order of CIT(A) confirmed - Decided against Revenue - ITA No.436/CTK/2011 & ITA No.441/CTK/2011 - - - Dated:- 25-6-2012 - Shri K.K. Gupta, and Shri K.S.S. Prasad Rao, JJ. For the assessee: Shri Suru Venkateswarlu, AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the issues raised in their respective appeals and their legal implications. 5. On careful consideration of the material made available to the Tribunal and analyzing the same in the light of the submissions of both the parties, the undisputed facts relating to the issues are that the assessee is a Company deriving income from Fabrication and Erection Contracts and filed return of income for the period under consideration at Rs. 36,16,972. This return was selected for scrutiny assessment by the Assessing Officer and after hearing the assessee and considering the materials placed before him, the Assessing Officer added Rs. 1,78,43,679 to the income of the assessee by disallowing expenses u/s.40(a)(ia) of the I.T.Act,1961 on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting material evidence substantiating the contention of the assessee to prove that Rs. 1,46,64,896 is not all undisclosed income of the assessee. They are true and valid trade creditors only. He further pointed out that the learned CIT(A) found that there is a difference between ledger amount and notice served category of Rs. 30,08,664, creditors amounting to Rs. 3,17,601 have not even replied to the notice issued to them u/s.133(6) of the Act and creditors amounting to Rs. 88,103 have not received the notice sent u/s.133(6) and they were returned unserved. Therefore, the learned CIT(A) has come to the conclusions that a total amount of Rs. 34,14,368 out of the sundry creditors amount were found unverifiable and hence, he confirmed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also basing on the remand report submitted by the AO. Hence, there is no infirmity in the order of the learned CIT(A) in sustaining disallowance of Rs. 34,14,368 on this score. Hence, the assessee s appeal is devoid of merit deserves to be dismissed. 10. Now adverting to the other issue pleaded by the Department in their appeal, the learned DR vehemently argued contending inter alia that the amendment to Section 40(a)(ia) of the I.T.Act,1961 in Finance Act, 2010 w.e.f. 1.4.2010 with retrospective effect from 1.4.2005 is prospective as held by the Special Bench of ITAT in the case of Bharati Shipyard Ltd v. DCIT. Therefore, the deletion of Rs. 1,78,43,679 added by the Assessing Officer u/s.40(a)(ia) of the Act is very much correct and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be devoid of merit and as such the same is dismissed. 12. Now coming to the other issue of addition made u/s.40(a)(ia) of the I.T.Act,1961, the learned CIT(A) has considered this issue thread bare and found that as per the Assessing Officer the amount of Rs.1,78,43,679 was paid or credited from 1.4.2006 to 28.2.2007. The TDS for the said amount ought to have been deposited before 31.3.2007. The said payment was not made before 31.3.2007 but the said payment was made before the due date of filing of the return. As per the amendment by Finance Act, 2008 w.r.e.f. 1.4.2005 wherein in Clause (B) laid down that the TDS has to be paid on or before the last date of the previous year. There is another amendment to the said Section by Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
