TMI Blog2017 (3) TMI 1250X X X X Extracts X X X X X X X X Extracts X X X X ..... evious year as sufficient compliance of the provision. - Decided against the revenue. - ITA No.807/Kol /2013 & C.O. No.01/Kol/2013 - - - Dated:- 22-3-2017 - Shri Aby.T Varkey, Judicial Member and Shri Waseem Ahmed, Accountant Member For The Assessee : Shri D.K. Kothari, FCA For The Respondent : Shri Debasish Banerjee, JCIT-SR-DR ORDER PER Waseem Ahmed, Accountant Member:- This appeal as well as Cross Objection (CO) filed by the Revenue and assessee is directed against the order of Commissioner of Income Tax (Appeals)-I, Kolkata dated 03.01.2013. Assessment was framed by ACIT, Range-2, Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 13.12.2011 for assessment year 2009-10. Shri Debasish Banerjee, Ld. Departmental Representative represented on behalf of Revenue and Shri D.K. Kothari, Ld. Authorized Representative appeared on behalf of assessee. First we take up assessee s CO No.01/Kol/2013 . 2. Grounds raised by the assessee in its CO are as follows:- A. Grounds to support order of CIT(A): 1. In view of facts and circumstances of the case learned CIT(A) has rightly allowed relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. N.Balkrishnan V M.M.Krishna Murthy AIR 1998 se 3222. 4. Office ofthe Chief Post Master General Versus Living Media India Ltd. 2012 348 ITR 7 in which above three and many other judgments were considered. 5. State of MP Vs. Pradeep Kumar (2000) 7 SC 372, 376-77) cited on page no. 12747 In Book of Shri Chaturvedi and Pithisaria (vol 8) Sixth edition 2014, in which the following summary is given: ... Even a vigilant litigant is prone to commit mistakes. As the aphorism 'to err is human' is more a practical notion of human behaviour than an abstract philosophy, the intentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine The rules laid down in various judgments are summarized: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever. In the absence of sufficient reasons for the delay in filing the appeal, in such situation the delay should not be condoned. The ld. has relied in the judgment of Hon ble Supreme Court in the case of Basawaraj Anr. Versus The Spl. Land Acquisition Officer in CIVIL APPEAL NO. 6974 of 2013. 4. Now the question before us arises for our adjudication as to whether there were sufficient reasons which prevented the assessee from filing the appeal/CO in the aforesaid facts circumstances. The acceptability of the assessee's explanation has to be tested on the principles whether ignorance of law amounts to sufficient cause. It is the assessee's case that it had no knowledge for the non-applicability of the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the appeal. The assessee's explanation was bona fide and the facts did not show that the assessee deliberately delayed the filing of the appeal. For those reasons, the delay in question had to be condoned. Thus we condone the delay and admit the appeal for hearing. 5. The inter-connected issue raised by assessee in its CO is whether Ld. CIT(A) is justified in applying the provisions of Sec. 115JB of the Act though the assessee has declared loss in its income return under the normal provision of the Act. 6. At the outset, Ld. AR for the assessee brought to our notice that the return of income for the year under consideration was filed at loss due to unabsorbed depreciation. Therefore, there was no computation of gross total income, deduction under Chapter VIA, total income and tax payable in normal computation of income. Ld. AR submitted that Assessing Officer also framed assessment u/s. 143(3) of the Act at loss under the normal provision of Income Tax Act due to unabsorbed depreciation. However, the assessee has paid tax u/s 115JB of the Act due to its mistake and ignorance of law. It was also submitted that it recommended no dividend in the last two years. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal of assessee if the TDS has been deposited before due date specific u/s. 139(1) of the Act. The grievance of Revenue is that the amendment brought by the Finance Act 2010 in section 40(a)(ia) is applicable prospectively from the AY 2010-11 and the instant issue relates to the AY 2009-10. Thus the amended provisions are not applicable to the instant case before us. The law prior to the amendment u/s 40(a)(ia) by the Finance Act 2010 reads as under : Amounts not deductible. 40. Notwithstanding anything to the contrary in sections 30 to 67[38], the following amounts shall not be deducted in computing the income chargeable under the head Profits and gains of business or profession ,- 68 (a) in the case of any assessee- 69 [(i) ------------------------- (ia) any interest, commission or brokerage, 70[rent, royalty,] fees for professional services or fees for technical services payable to a resident, or amounts payable to a contractor or sub-contractor, being resident, for carrying out any work (including supply of labour for carrying out any work), on which tax is deductible at source under Chapter XVII-B and such tax has not been deducted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the financial year should have been deducted paid within the time allowed under section 139(1) of the Act. The amendment to section 40(a)(ia) of the Act i.e. vide Finance Act, 2010 w.e.f. 01.04.2010, whereby the deposit of tax deducted at source, deposited with the central government by the due date of the filing the return for the relevant year, i.e., where the tax was deductible at any time during the relevant previous year, has been interpreted by the Hon'ble courts of law as retrospective in nature, so that it would apply for the current year as well. The decisions by the higher courts of law, as in the case of CIT v. Rajinder Kumar [2014] 362 ITR 241/220 Taxman 3/[2013] 39 taxmann.com 126 (Delhi) and CIT v. Naresh Kumar [2014] 362 ITR 256/221 Taxman 59/[2013] 39 taxmann.com 182 (Delhi), have read down the said amendment, holding it as retrospective on the ground of it being only clarificatory and toward mitigating the hardship being caused and, further, of the payment by due date qua the deductions effected for the first eleven months of the relevant previous year as sufficient compliance of the provision. Accordingly, we find no infirmity in the order of ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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