TMI Blog2013 (7) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 30-7-2013 - SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER For the Petitioner : Shri M.K. Kulkarni For the Respondent : Ms. Ann Kapthuama ORDER PER R.S. PADVEKAR, JM:- The revenue has filed the appeal challenging the impugned order of the Ld. CIT(A)-Kolhapur dated 12-01-2012 for the A.Y. 2007-08. The assessee has also filed the Cross Objection. The revenue has taken the following effective grounds in the appeal: 1. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in deleting the disallowance of ₹ 39,43,046/- by holding that the provisions of section 40(a)(ia) would apply when the amount is payable and not where the expenditure is paid thereby ignoring the legislative intent clear from the Explanatory Notes to Finance (No.2) Act, 2004 given by the Central Board of Direct Taxes vide its circular No.5 dated 15.05.2005 as per which provisions of sub-clause (ia) of section 40(a) apply to all amounts - whether actually paid or remaining payable during the year. 2. On the facts and in the circumstances of the case and in law, whether the Ld. CIT(A) was justified in holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. 3. The payments of the bills made by the assessee and TDS deposited are as under: Sl. No. Date of Bill Name of Contractor Amount TDS Amount Payment of TDS Contractors 1 26/02/2007 Narayan Rathod 102041/- 2041/- 30/05/2007 2 09/01/2007 Motiram Chavan 102041/- 2041/- 30/05/2007 3 17/10/2006 Malti Deshpande 153443/- 3443/- 30/05/2007 4 02/12/2006 Jai Ganesh Matal Supply 153443/- 3443/- 30/05/2007 5 15/06/2006 Vijay Musale 255739/- 5739/- 30/05/2007 6 06/09/2006 Musale 153443/- 3443/- 30/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Merilyn Shipping. We already have quoted extensively both the majority and the minority views expressed in the aforesaid case. The main thrust of the majority view is based on the fact that the Legislature has replaced the expression amounts credited or paid with the expression 'payable' in the final enactment. Comparison between the pre-amendment and post amendment law is permissible for the purpose of ascertaining the mischief sought to be remedied or the object sought to be achieved by an amendment. This is precisely what was done by the Apex Court in the case of CIT Vs. Kelvinator reported in 2010(2) SCC 723. But the same comparison between the draft and the enacted law is not permissible. Nor can the draft or the bill be used for the purpose of regulating the meaning and purport of the enacted law. It is the finally enacted law which is the will of the legislature. The Learned Tribunal fell into an error in not realizing this aspect of the matter. The Learned Tribunal held that where language is clear the intention of the legislature is to be gathered from the language used . Having held so, it was not open to seek to interpret the sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished in the Maharashtra Government Gazette Extraordinary, Part IV on 13-06-1969, the aforementioned words were omitted. Therefore, this would be a clear pointer to the legislative intent that the legislature being conscious of the fact and being armed with all the Committee reports and also being armed with the factual data, deliberately avoided those words. What the appellants are asking was to read in that definition, these precise words, which were consciously and deliberately omitted from the definition. That would amount to supplying the casus omissus and we do not think that it is possible, particularly, in this case. The law of supplying the casus omissus by the courts is extremely clear and settled that though this Court may supply the casus omissus, it would be in the rarest of the rare case and thus supplying of this casus omissus would be extremely necessary due to the inadvertent omission on the part of the legislature. But, that is certainly not the case here . We shall now endeavour to show that no other interpretation is possible. The key words used in Section 40(a)(ia), according to us, are on which tax is deductible at source under Chapter XVII -B . If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Merilyn Shipping Transports are not acceptable. The submissions advanced by learned advocates have already been dealt with and rejected. The appeal is, thus, allowed in favour of the revenue. 4. We, therefore, reverse of order of the Ld. CIT(A) and restore the order of the Assessing Officer and allow the grounds taken by the revenue. In the result, the revenue s appeal is allowed. 5. Now we take up Cross Objection being CO No. 18/PN/2013. The assessee has taken the following effective grounds in the Cross Objection: 1. On the facts and circumstances of the case and in law the cross objections raised in the Deptt.'s appeal No. ITA/600/PN/2012 are pure questions of law going to the root of the matter. The be admitted for adjudication in accordance with the provisions of law. 2. On the facts and circumstances of the case and in law and assessee undisputedly is assessed to tax in 'Individual Status' it would reveal, that 'status' Individual was not included in the list appended below S, 194C of the Act and therefore, the Respondent-assessee was not obliged to deduct any tax at source. Meaning thereby the provisions of S, 40(a)(i-a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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