TMI Blog2015 (6) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... rising out of order of CIT(A)-XXIV, Kolkata in Appeal No. 976/CIT(A)-XXIV/R-11/11-12 dated 03.09.2012. Assessment was framed by Addl. CIT, Range-11, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Year 2006-07 vide his order dated 18.12.2009. 2. The sole issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in disallowing a sum of ₹ 52,43,154/- by invoking provisions of section 40(a)(ia) of the act for non-deduction of TDS. For this, assessee has raised following grounds of appeal: 1(a) That on the facts and in the circumstances of the case, the Ld. CIT(A) erred both on facts and in law in confirming the action of the AO in disallowing a sum of ₹ 52,43,154/- by invoking the provisions of section 40(a)(ia) of the Income-tax Act, 1961 (the 'Act'). 1(b) that on the facts and in the circumstances of the case, the Ld. CIT(A) erred in not appreciating that tax relating to the amount of ₹ 52,43,154 deducted during the last month of the financial year 2005-06 had been duly deposited by the appellant within the due date of filing of return for the year under consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded his finding at para 6.3 as under: 6.3. I have carefully considered the observation of the Assessing Officer in the assessment order and also gone through the submission of Ld. A/R. The appellant did not make any disallowance u/s. 40(a)(ia) in the original return of income filed u/s. 139(1) for the AY 2006-07. Then the appellant had offered to tax an aggregate sum of ₹ 1,65,06,448/- u/s. 40(a)(ia) in the revised return which was filed on 20.03.2008. The Ld. A/R has explained that the said amount of ₹ 1,65,06,448/- which was offered to tax also contained an amount of ₹ 52,43,154/- out of which TDS was deducted in the month of March, 2006 and deposited on 24.04.2006. During the course of the appellate proceedings, the Ld. A/R has explained that the said amount of ₹ 52,43,154/- is deductible u/s. 40(a)(ia) in the hand of the appellant as the TDS on the said amount was deducted and deposited in the Government Account on 20.04.2006. During the course of the appeal, the Ld. A/R could not furnish any satisfactory explanation as to why the disallowance of ₹ 1,65,06,448/- u/s. 40(a)(ia) was not made in the original return. He has also failed to clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her section 40(a)(ia) is having retrospective operation or not. The learned Tribunal on fact found that the assessee had deducted tax at source from the paid charges between the period April 1, 2005 and April 28, 2006 and the same were paid by the assessee in July and August 2006, i.e. well before the due date of filing of the return of income for the year under consideration. This factual position was undisputed. Moreover, the Supreme Court, as has been recorded by the learned Tribunal, in the case of Allied Motors Pvt. Ltd. and also in the case of Alom Extusions Ltd., has already decided that the aforesaid provision has retrospective application. Again, in the case reported in 82 ITR 570, the Supreme Court held that the provision, which has inserted the remedy to make the provision workable, requires to be treated with retrospective operation so that reasonable deduction can be given to the section as well. In view of the authoritative pronouncement of the Supreme Court, this court cannot decide otherwise. Hence we dismiss the appeal without any order as to costs. Once the issue is decided by Hon'ble jurisdictional High Court that the amendment in the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court and has submitted that the Tribunal was wrong in upholding the assessing officer's order. He has relied upon the decision of this court in National Thermal Power Company Ltd. v. CIT (1998) 229 ITR 383, to contend that it was open to the assessee to raise the points of law even before the Appellate Tribunal. 5. This appellant's appeal before the Commissioner (Appeals) was allowed. However, the order of the further appeal of the department before the Income Tax Appellate Tribunal was allowed. The appellant has approached this court and has submitted that the Tribunal was wrong in upholding the assessing officer's order. He has relied upon the decision of this court in National Thermal Power Company Ltd. v. CIT (1998) 229 ITR 383, to contend that it was open to the assessee to raise the points of law even before the Appellate Tribunal. 6. The decision in question is that the power of the Tribunal under section 254 of the Income Tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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