(1), Baroda Vs M/s. Bell Granito Ceramics Ltd., Village

Transcription

(1), Baroda Vs M/s. Bell Granito Ceramics Ltd., Village
IN THE INCOME TAX APPELLATE TRIBUNAL
“C” BENCH, AHMEDABAD
BEFORE SHRI MUKUL Kr. SHRAWAT, JUDICIAL MEMBER AND
SHRI ANIL CHATURVEDI ACCOUNTANT MEMBER
ITA No.2466/Ahd/2011
A.Y.2005-06
DCIT, Circle-1 (1),
Baroda
Vs M/s. Bell Granito
Ceramics Ltd.,
Village Gavasad, POMobha, Taluka-Padra,
District-Baroda.
PAN: AAACB 9401D
(Appellant)
(Respondent)
Revenue by :
Assessee(s) by :
Shri M.K. Singh, Sr.D.R..
Shri K.D. Shah, A.R.
सुनवाई क तार ख/ Date of Hea ring
:
घोषणा क तार ख /Date of P ronouncement:
10/03/2015
13/03/2015
आदेश /O R D E R
PER: MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER
This is an Appeal filed by the Revenue arising from the order of
learned CIT(A)-I, Baroda dated 05.07.2011. The grounds raised by the
Revenue are reproduced below:“1.
On the facts and in the circumstances of the case and in law, the
Id.CIT (Appeals) erred in deleting the addition of Rs.1,86,94,606/u/s.40(a)(ia) of the Income Tax Act, 1961, holding that the provisions of
section 40(a)(ia) as amended by the Finance Act, 2010 w.e.f. 01.04.2010,
are of clarificatory nature and, therefore, retrospective.
2. The Id.CIT(Appeals) erred in not considering the fact that the relevant
portion of the Memorandum Explaining the Provisions in Finance Bill,
2010 clearly states that this amendment is proposed to take effect from
01.04.2010 and will, accordingly, apply in relation to the assessment year
2010-11 and subsequent years.”
ITA No.2466/Ahd/2011
DCIT, Cir-1(1), Baroda Vs. M/s. Bell Granito Ceramics Ltd.
For A.Y.2005-06
-22.
Facts in brief as emerged from the corresponding assessment order
passed u/s.143(3) r.w.s. 147 of IT Act dated 10.12.2009 were that the
Assessee company has disclosed a return of income at Rs. Nil which was
accepted but later on the Assessment was reopened u/s.147 on the ground
that the Assessee had not deposited the TDS within the time prescribed.
On enquiry, the Assessee has furnished the details of TDS deducted and
the dates of payment. The TDS was deducted from transporters,
contractors, advertisers, on payment of rent, etc. The undisputed fact as
noted by the AO was that the TDS so deducted was deposited before the
due date of the filing of the return. We have noted that in the assessment
order a chart was reproduced showing details of nature of payment,
amount of TDS deducted and the dates of payment. However, the AO
was not convinced and made a disallowance u/s.40(a)(ia) of IT Act of
Rs.1,86,94,606/-.
3.
When the matter was carried before the First Appellate Authority,
it was held that the provision was retrospectively applicable. According
to which the Assessee was required to deposit the TDS before the due
date of filing of the return, relevant portion of the finding of learned
CIT(A) are reproduced below:
“2.2 Regarding disallowance u/s 40(a)(ia), facts of the case are that AO
made disallowance u/s 40(a)(ia) in respect of expenses corresponding to tax
deducted at source of Rs.9,77,707/- upto 28.2.2005 which was not deposited
to the credit of Government before 31.3.2005. Though tax deducted at source
of Rs.9,77,707/- was deposited to the credit of Government before due date of
filing of return of income, disallowance of Rs.1,86,94,606/- was made by the
AO u/s. 40(a)(ia) as it stood prior to amendment made by Finance Act, 2010.
2.3 In appeal, reliance was placed on the decision of ITAT, Ahmedabad in the
case of Kanubhai Ramjibhai Makwana (2011) 9 Taxmann.com 55.
2.4 I have considered the matter. Hon. ITAT, Ahmedabad in the case of
Kanubhai Ramjibhai Makwana (2011) 9 Taxmann.com 55, held that
amendment made by the Finance Act, 2010 in sec. 40(a)(ia) is of clarificatory
nature and it would, therefore, apply retrospectively from 1.4.2005, the date
ITA No.2466/Ahd/2011
DCIT, Cir-1(1), Baroda Vs. M/s. Bell Granito Ceramics Ltd.
For A.Y.2005-06
-3on which section 40(a)(ia) was inserted by the Finance (No.2) Act, 2004. In
view of this, even though tax deducted at source of Rs.9,77,707/- upto
28.2.2005 was not deposited to the credit of Government by 31.3.2005 and
was deposited to the credit of Government before due date of filing of return
of income as per the assessment order, disallowance of Rs.1,86,94,606/- is
cancelled.”
4.
With this factual background, we have heard both the sides. From
the side of the Revenue-Department, learned Sr.D.R. has placed reliance
on the findings of the AO. On the other hand, learned A.R., Mr. K.D.
Shah has cited few decisions before us as listed below:
“1. CIT Vs. Rajendra Kumar, Tax Appeal No.65/2013 order dated 1st July,
2013 by Delhi High Court.
2. CIT Vs. Royal Builders, 220 taxmann 180 (Guj)
3. Virgin Creations (ITA No.302 of 2011/GA 3022/11 order dated 23rd
November, 2011.”
4.1
Further he has also placed on record the dates on which the
impugned TDS was deposited.
5.
Having heard the submission of both the sides and considering the
legal position as stood after the amendment took place in the provisions
of Section 40(a)(ia). We are of the conscientious view that the issue
involved is now duly covered by few decisions of the Hon’ble Courts. In
a situation, when there was no dispute that the impugned TDS was
deposited before the due date of filing of return then we can hold that the
intention behind the amendment u/s.40(a)(ia) was to ensure the deposit of
TDS and that the evidence of deposit of tax should be placed along with
returned filed. In view of the legal position as discussed hereinabove, we
are not inclined to disturb the factual as well as legal finding of learned
CIT(A), and the same is hereby confirmed. We find no force in the
ground raised by the Revenue; hence dismissed.
ITA No.2466/Ahd/2011
DCIT, Cir-1(1), Baroda Vs. M/s. Bell Granito Ceramics Ltd.
For A.Y.2005-06
-4-
6.
In the result, the Appeal of the Revenue is dismissed.
Sd/-
Sd/-
(ANIL CHATURVEDI)
ACCOUNTANT MEMBER
(MUKUL Kr. SHRAWAT)
JUDICIAL MEMBER
Ahmedabad; Dated 13/03/2015
Prabhat Kr. Kesarwani, Sr. P.S.s
आदेश क
1.
2.
3.
4.
5.
6.
त ल प अ े षत/Copy of the Order forwarded to :
अपीलाथ / The Appellant
यथ / The Respondent.
संबं धत आयकर आयु त / Concerned CIT
आयकर आयु त(अपील) / The CIT(A)-III, Ahmedabad
वभागीय
त न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
गाड फाईल / Guard file.
आदेशानुस ार / BY ORDER,
उप/सहायक पंजीकार (Dy./Asstt.Registrar)
आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad

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