TMI Blog2021 (9) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the opinion that the ld. CIT(A) has correctly decided the legal issue i.e., the application of second proviso to section 40(a)(ia) of the Act is retrospective in nature. On very same issue in the case of Smt. Manimegalai Ganesan v. DCIT [ 2021 (8) TMI 1147 - ITAT CHENNAI ] held that the application of second proviso to section 40(a)(ia) of the Act is retrospective Application of second proviso to section 40(a)(ia) of the Act is retrospective in nature and directed the Assessing Officer to provide an opportunity to the assessee to furnish Form 26A from the recipients of the payments made without TDS and to delete the addition to the extent the recipients have offered the above payments in their respective returns of income - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 8,21,197/- 10.01.2011 M/s. Vijay Television Pvt. Ltd. 64,88,265/- M/s. Vision Time India Pvt. Ltd. 85,55,095/- Total 1,64,59,057/- The Assessing Officer further noted that the above payments are contractual in nature and attracts to deduct TDS under section 194C of the Act. The Assessing Officer asked the assessee to produce the evidence that the TDS has been deducted on the above payments. However, the assessee has not filed any documentary evidence. Accordingly, the Assessing Officer has disallowed the entire expenditure u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT in the case of Quantum Knits P. Ltd. in ITA Nos. 2164/Mds/2014 and 287/Mds/2016, the ld. CIT(A) directed the Assessing Officer to provide an opportunity to the assessee to furnish Form 26A from the recipients of the payments made without TDS and to delete the addition to the extent the recipients have offered the above payments in their respective returns of income. 4. Aggrieved, the Revenue is in appeal before the Tribunal. The ld. DR strongly supported the order passed by the Assessing Officer. 5. On the other hand, the ld. Counsel for the assessee strongly supported the order passed by the ld. CIT(A). 6. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in nature and has no retrospective effect by following the judgement of Hon'ble Kerala High Court in the case of Thomas George Muthoot v. CIT 287 CTR 101. The ld. Counsel for the assessee has relied on the judgement in the case of CIT v. Calcutta Export Company [2018] 93 taxmann.com 51 (SC), wherein the Hon'ble Supreme Court has held that the amendment made by the Finance Act, 2010 to provisions of section 40(a)(ia) is curative in nature and it should be given retrospective operation from date of insertion of said provision i.e., with effect from assessment year 2005-06 and submitted that the above judgement of the Hon'ble Supreme Court has to be followed in the present case also. The ld. Counsel for the assessee has further re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of second proviso to section 40a(ia) of the Act introduced through Finance Act. 2012 with effect from 01.04.2013 is prospective or retrospective. The ld. CIT(A) has relied on the decision of Hon'ble Kerala High Court in the case of Thomas George Muthoot v. CIT (supra) for the preposition that the above provision applies only prospective. However, the Hon'ble Delhi High Court in the case of CIT v. Ansal Land Mark Township (P.) Ltd.(supra) has held that the second proviso to section 40(a)(ia) of the Act is declaratory and curative and it has retrospective effect from 01.04.2005 [para 14 of the judgement of Delhi High Court]. The Hon'ble Delhi High Court has held that the second proviso to section 40(ia) was inserted by the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of insertion of said provision. Keeping in view of the above judgements of Hon'ble Supreme Court as well as Hon'ble Delhi High Court and also by following the judgement of the Hon'ble Supreme Court in the case of CIT v. Vegetable Products Ltd. 88 ITR 192, wherein, the Hon'ble Supreme Court has held that where two views are possible, the view which is favourable to the assessee has to be followed, we are of the considered opinion that the issue has to be decided in favour of the assessee. In view of the above facts and circumstances of the case, the disallowance made by the Assessing Officer and confirmed by the ld. CIT(A) stands reversed and the ground raised by the assessee is allowed. The above decision for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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