Hon’ble Calcutta High Court in their decision dated 23.11.2011 ITA no. 302 of 2011 GA 3200/2011 in CIT Vs. Virgin Creations, held that that amendment to the provisions of Sec.40(a)(ia) of the Act, by the Finance Act, 2010 as aforesaid was retrospective from 1.4.2005. The ld. AR pointed out that this is the sole decision rendered by a High Court at the moment on the issue. Following the view in this decision, co-ordinate Bench in their decision dated 11.4.2012 in Piyush C. Mehta Vs. ACIT no.1321/Mum./2009 for the AY 2005-06 and the decision dated 10.5.2012 in ITA no. 717/Bang/2011for the AY 2008-09 in ACIT Vs. M.K. Gurumurthy also held that the aforesaid amendment is applicable retrospectively w.e.f 1.4.2005.
INCOME TAX APPELLATE TRIBUNAL DELHI
ITA no.3592/Del/2011 – Assessment year: 2008-09
Income Tax Officer
V/s.
Taru Leading Edge (P) Ltd.
Date of pronouncement 22-05-2012
O R D E R
A.N.Pahuja:-
This appeal filed on 20.07.2011 by the Revenue against an order dated 16.05.2011 of the ld. CIT(A)-XIX, New Delhi, raises the following grounds:-
1. “Whether on the facts and in the circumstances of the case the provisions of section 40(a)(ia) of the Income-tax Act as amended by the Finance Act, 2010, with effect from 01.04.2010 should be treated as retrospectives w.e.f. 01.04.2005.
2. The appellant craves for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of appeal. “
2. Facts, in brief, as per relevant orders are that return declaring income of “12,75,862/- on a/c of short term capital gains and nil business income filed on 30.09.2008 by the assessee, after being processed u/s 143(1) of the Income-tax Act, 1961 (hereinafter referred to as the Act), was taken up for scrutiny with the service of a notice u/s 143(2) of the Act issued on 15.09.2009. During the course of assessment proceedings, the Assessing Officer (A.O. in short) noticed that the assessee deposited TDS of `1,59,332/- deducted from an amount of “16,22,846/- beyond the stipulated time. To a query by the AO, seeking to disallow the aforesaid amount in terms of provisions of sec. 40a(ia) of the Act, the assessee pleaded that proviso to section 40(a)(ia) of the Act inserted by Finance Act,2010 was applicable retrospectively w.e.f. 1.4.2005 and the assessee having deposited TDS before the due date of filing the return, no disallowance could be made. However, the AO did not accept the submissions of the assessee and disallowed the amount of `16,22,846/- in terms of extant provisions of section 40(a)(ia) of the Act.
