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TMI Blog2016 (4) TMI 555X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 21/10/2015 in the light of the judgement of the Hon'ble High Court of Delhi rendered in the case of Ansal Land Mark Township (P) Ltd. reported at 377 ITR 635 (Del). 2. The ld.Sr.counsel for the assessee reiterated the submissions as were made in the miscellaneous applications and submitted that this Hon'ble Tribunal was pleased to restore the issue to the file of AO for decision afresh. It is submitted by the ld.counsel for the assessee that the Tribunal's order may be modified and the AO be directed to decide the issue in the light of the judgement of Hon'ble High Court of Delhi in the case of Ansal Land Mark Township (P) Ltd.(supra). 2.1. On the contrary, ld.Sr.DR Shri Nagendra Singh opposed the submissions made by the ld.Sr.counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said proviso.]" 3.1. We find that this Tribunal in ITA Nos.1414 & 1415/Ahd/2011 for AY 2006-07 vide order dated 21/10/2015 has decided the issue by observing as under:- "4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. The AO made disallowance on the basis that the assessee was required to deduct the tax on the commission receipts. It is the contention of the assessee that these receipts are not of the contractual in nature. However, the ld.counsel for the assessee submitted that the receipts have been offered to tax by the concerned party. In respect of other issues, i.e. non-deduction of tax, the authorities have failed to appreciate the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deem it proper to restore these issues to the file of AO for decision afresh. Needless to say that the AO would afford reasonable opportunity of being heard to the assessee. As a result, assessee's appeal (in the case of Shri Amarjitsingh D.Randhawa) is allowed for statistical purposes." 3.2. It is the contention of the ld.Sr.counsel for the assessee that the judgement of the Hon'ble High Court of Delhi in the case of Ansal Land Mark Township (P) Ltd.[supra] was cited and relied upon by the assessee(s) which was not recorded by the Tribunal while deciding the appeals of the assessees. This has resulted into the mistake apparent from the record. 3.3. We have given our thoughtful consideration to the rival contentions of the parties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the nature of expenditure. However, before the ld.CIT(A), the assessee has given separate account of replacement of spares and labour charges. The assessee has relied on the judgement of the Hon'ble High Court of Delhi in the case of CIT vs. Ansal Land Mark Township (P) Ltd. reported at (2015) 377 ITR 635 (Delhi), wherein it has been held that the amendment in the Finance Act, 2012, dated 01/04/2013 being curative to be treated as retrospective in nature. Accordingly we direct the AO to decide the issue in the light of the judgement of the Hon'ble High Court of Delhi in the case of Ansal Land Mark Township (P) Ltd., wherein the High Court has held as under:- "12. Relevant to the case in hand, what is common to both the provisos to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, this provision is not for the purpose of penalising for the tax deduction at source lapses. There are separate penal provisions to that effect. Deincentivising a lapse and punishing a lapse are two different things and have distinctly different, and sometimes mutually exclusive, connotations. When we appreciate the object of scheme of section 40(a)(ia), as on the statute, and to examine whether or not, on a 'fair, just and equitable' interpretation of law-as is the guidance from the hon'ble Delhi High Court on interpretation of this legal provision, in our humble understanding, it could not be an 'intended consequence' to disallow the expenditure, due to non-deduction of tax at source, even in a situation in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, as also for the detailed reasons set out earlier, we cannot subscribe to the view that it could have been an 'intended consequence' to punish the assessees for non-deduction of tax at source by declining the deduction in respect of related payments, even when the corresponding income is duly brought to tax. That will be going much beyond the obvious intention of the section. Accordingly, we hold that the insertion of second proviso to section 40(a)(ia) is declaratory and curative in nature and it has retrospective effect from April 1, 2005, being the date from which sub-clause (ia) of section 40(a) was inserted by the Finance (No. 2) Act, 2004." 14. The court is of the view that the above reasoning of the Agra Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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