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Only grievance of the Revenue is that the amendment brought in the Income Tax Act u/s. 40(a(ia) was only effective from 1.4.2010 and not retrospective in nature. However, we find that in a catena of case laws as mentioned, it has been held that the amendment in section 40(a)(ia) is remedial and curative in nature and has retrospective effect. In this case, admittedly, the TDS deducted was deposited before the date of the filing of the return and under such situation, there cannot be any disallowance u/s. 40(a)(ia). Thus we find that Ld. Commissioner of Income Tax (Appeals) has taken a correct view in the matter, which does not need any interference on our part. Accordingly, we uphold the same.
Once under the special provision of section 44AD of the IT Act exemption from maintenance of books of accounts have been provided and the presumptive tax at 8% of the gross receipts itself is the basis for determining the taxable income, the assessee was not under obligation to explain individual entry of cash deposits in the bank unless such entries had no nexus with the gross receipts. In the present case though from the details filed by assessee the ld. AO observed that no TDS has been recovered, in our opinion, since assessee has disclosed the profits more than 8% of the gross receipts and there is no dispute in receipt of the gross receipts the addition made by ld. CIT(A) u/s 40(a)(ia) of the IT Act is not sustainable. Therefore we confirm the action of ld. CIT(A) and dismiss the appeal of the revenue.
In the facts of the present case, the assessee had deducted tax at source out of payments made to contractor totalling Rs. 1,21,75,828 which was deposited on 8-7-2008. The due date for filing return of income of the assessee was 30-9-2008. Following the ratio laid down by the Calcutta High Court in Virgin Creations (supra) and various Benches of the Tribunal it is held that once the tax has been deducted and deposited by the assessee before the due date of filing return of income, there is no merit in disallowing the expenditure relatable to such tax deducted at source. The assessee succeeds on both the counts. Accordingly, the Assessing Officer has to be directed to allow the claim of expenditure of Rs. 1,01,33,953.
Issue is decided by Hon’ble Calcutta High Court in the case of CIT Vs. Virgin Creations that the amendment in the provisions of section 40(a)(ia) of the Act by Finance Act, 2010 is remedial and curative in nature and TDS paid on or before the due date of filing of return u/s. 139(1) of the Act, deduction in respect to the amount on which TDS is so paid, is allowable. In the present case the assessee deducted tax in February, 2007 but the same was deposited in May, 2007 for the AY 2007-08 that means the TDS was paid before due date of filing of return u/s. 139(1) of the Act by the assessee, hence, we allow the claim of assessee. This issue of assessee’s appeal is allowed.
he amendment to s. 40(a)(ia) by the Finance Act, 2010 has been specifically made retrospectively applicable from the asst. yr. 2010-11. It has nowhere been expressly set out that the amendment is curative or merely declaratory of the previous law. The intention of the legislature as gathered from the Notes on Clauses and the Memorandum Explaining the Provisions of the Finance Bill does not particularly indicate any relaxation in the provision retrospectively from asst. yr. 2005-06 by providing that the expenditure on which due tax was deducted upto February, 2005 but paid before the due date specified in s. 139(1) shall not suffer any disallowance in the asst. yr. 2005-06.
The issue involved in the present appeal has now been decided by the Hon’ble Calcutta High Court in the case of CIT v. Virgin Creation in GA No.3200/2011 dated 23-11-2011 against the Revenue. However, it is noteworthy that the Special Bench of ITAT Mumbai in the case of Bharati Shipyard Ltd. v. DCIT in ITA No.2404/Mum/2009 in order dated 12-09-2011 has taken a view that the amendment is prospective in nature and would apply accordingly. Respectfully following the decision of Hon’ble Calcutta High Court in the case of Virgin Creators (supra) the order of Ld. CIT(A) is not sustainable. Hence, this ground of assessee’s appeal is allowed. The Assessing Officer is directed to delete the disallowance of Rs.3,69,568/- as made u/s. 40(a)(ia) of the Act.
The question now is as to whether to follow the decision of the Hon’ble Special bench in the case of Bharati Shipyard Ltd vs. DCIT (ITAT Mumbai) which has taken the view that Amendment by the Finance Act, 2010 to the provisions of Sec.40(a)(ia) of the Act is prospective and not retrospective from 1.4.2005 or the decision of the Hon’ble Calcutta High Court taking a contrary view.
Briefly stated facts of the case are that the assessee paid a sum of Rs.9,54,684/- to a foreign bank without deduction of tax at source. In the audit report, it was mentioned that it was a usance interest paid under the letter of credit and hence not liable for any deduction of tax at source. In support of its case, the assessee relied on the order passed by the Tribunal in the case of Vijay Ship Breaking Corporation vs. DCIT (2002) 76 TTJ 169 (Rajkot) by contending that the interest paid to bank related to the purchases and hence should be considered as part of purchase price.
Provisions of sec.40(a)(ia) would apply only to the expenditure which remain payable as at the end of the relevant financial year. Assessee entitled to claim deduction of expenses if the TDS deducted there on is remitted before the due date for filing the return of income.
Merilyn Shipping & Transports v. Assistant Commissioner of Income-tax – ITAT VISAKHAPATNAM (SPECIAL BENCH) Whether Section 40(a)(ia) of the Income Tax Act can be invoked only to disallow expenditure of the nature referred to therein which is shown as payable as on the date of the balance sheet or it can be invoked also to disallow such expenditure which become payable at any time during the relevant previous year and was actually paid within the previous year. Held that section 40(a)(ia) cannot be invoked in respect of amounts actually paid within the previous year without deduction of TDS. Section 40(a)(ia) applies only to amounts outstanding as of 31st March of every year (Majority view). Section 40(a)(ia) would apply only to amounts outstanding as of 31st March of every year on which TDS not deducted and not to amounts paid during previous year without deduction of TDS for following reasons:
