TMI Blog2016 (12) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... st revenue - ITA No. 2776/Ahd/2013 - - - Dated:- 23-12-2016 - Shri R. P. Tolani, JM Shri Manish Borad, AM. For The Appellant : Shri K. Madhusudan, Sr.DR For The Respondent : Shri U. S. Bhati, AR ORDER PER Manish Borad, Accountant Member . This appeal of Revenue for Asst. Year 2006-07 is directed against the order of ld. CIT(A) XX, Ahmedabad, dated 30.09.2013 vide appeal No.CIT(A)-XX/104/12-13 arising out of order u/s 143(3) r.w.s. 147 of the IT Act, 1961 (in short the Act) framed on 12/12/2012 by ACIT, B.K. Circle, Palanpur. Following grounds have been raised by the Revenue :- 1), The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmedabad has erred in law and on facts in deleting the disallowance of ₹ 2,20,93,203/- made on account of job work expenses u/s.40(a)(ia) of the Act. 1a) The Ld. Commissioner of Income-Tax (Appeals)-XV, Ahmedabad has erred in law and on facts in holding that the amendment introduced by Finance Act 2000 in Section 40(a)(ia) of the Act are clarificatory have retrospective effect and hence no disallowance be made u/s.40(a)(ia) of the Act, where T.D.S. has been paid before the due date of filing of R.o.l. 2) On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k at ₹ 2,20,93,203/- was not paid within the prescribed time limit u/s 40(a)(ia) of the Act. 8. We further observe that there is no dispute to this fact at the end of both the parties that the due amount to be deducted at source on the job work expenses of ₹ 2,20,93,203/- was deducted and duly deposited before the due date of filing of return. The only anomany between the two parties arises as the ld. Assessing Officer made disallowance with the contention that TDS deducted was not deposited within the prescribed time limit as provided u/s 40(a)(ia) of the Act whereas assessee s submission was that TDS for first three quarters was duly deducted and deposited before the close of the Financial Year and the remaining amount of TDS was paid well before the due date of filing the return as per section 139(1) of the Act. We further observe that ld. CIT(A) has deleted the disallowance u/s 40(a)(ia) of the Act by observing as follows :- 4.3 I have considered the facts of the case and submission made by the appellant. The AO has made the disallowance by invoking the provisions of section 40(a)(ia) of the I.T. Act for the reason that the TDS made on the job work expenses we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther observe that in the judgment of Hon. Gujarat High Court in the case of CIT vs. Omprakash R. Chaudhary (supra) relied on by the assessee it has been held that amendment introduced by the Finance Act 2010 in section 40(a)(ia) of the Act is not just curative but is retrospective in nature. Hon. Jurisdictional High Court upheld the order of the Tribunal and decided in favour of assessee by observing as follows :- 17. The core issue as to whether the amendment made by the Finance Act 2010 to Section 40 [a](ia) of the Act is retrospective from the date of insertion of the provision ie.1st April 2005 therefore needs to be answered in affirmation. It can be seen that the amendment made by the Finance Act 2010 allows additional time upto the due date of tiling of the return in respect of even those instances where TDS has been deducted during the first eleven months of the previous year. The additional time till the due date of filing of the return, in case of TDS made during the last month of the previous year was already available by the amendment made by Finance Act 2008. Thus, it is apparent that the relaxation made by the amendment made under the Finance Act, 2010 brings the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from lbt April 2005. The Legislature, while extending the time for payment of TDS deducted in the month of March till due date of filing of the return under section 139 (1) of the Act, considered the apparent difference where an unintended benefit was given to the assessee who deducted the entire year's TDS in the month of March of the previous year which were eligible to pay TDS so deducted to the Government by due date of filing of the return under Section 139 (1) of the Act. However, the assesses who may have deducted the tax in earlier months beginning from April to the end of February of the previous year, did not get such benefit of extended time and thus the same worked unreasonably for such assesses, and therefore, it can be safely held upholding the contention of the respondents that to cure such defect, amendment in the year 2010 has been brought and the benefit of extended time to avoid hardship was given to the assessee and therefore, amendment of 2010 is in continuation to the amendment of 2008, and therefore, curative in nature and the same has to be held retrospective ie., with effect from 1st April 2005. 17.3 We notice that without challenging the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Delhi Bench of the Tribunal in case of H.S Mohindra Traders v. Income-tax Officer, Ward 39 (2), New Delhi, reported in [2010] 132 TTJ 701 (Delhi). Counsel for the revenue candidly pointed out that such decision of the Tribunal in case of H.S Mohindra Traders was carried in appeal by the Revenue before the Delhi High Court. The Delhi High Court dismissed the Revenue's appeal, making following observations:- The assessee had deducted the tax at source in the month of March, 2007 for the expenditure incurred in February 2007, but the same was deposited with the Income Tax Department in April 2007 ie., much before the due date specified in sub-section (1) of Section 139 of the Income Tax Act for filing the return. In these circumstances, we are of the opinion that the Income Tax Appellate Tribunal [hereinafter referred to as, the Tribunal ] has rightly interpreted the provision of Section 40 (a)(ia) and particularly, sub-clause (A) thereof which clearly gives the time to the assessee to deposit the IDS on or before the due date specified in sub-section (1) of Section 139 of the Act. The entire case sought to be made in this appeal is that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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