Pooja Prahlad Deora, Mumbai vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "C " BENCH, MUMBAI सव ी आई.पी.बंसल, या यक सद य. एवं ी राजे , लेखा सद य के सम BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM

आयकर अपील सं./I.T.A. No.7036/MUM/20113 ( नधा रण वष / Assessment Year : 2009-10 The Dy. Commissioner of Income बनाम/ Ms. Pooja Prahlad Deora, Tax 12(2), 41, Mere Weather Road, Vs. Room No.134, Aaykar Bhavan, Jiji Mansion, 5 t h floor, MK Road, Mumbai 20. Colaba, Mumbai 400 005.

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAKPD6912A (अपीलाथ /Appellant) .. ( यथ / Respondent)

Appellant by Shri Premanand Respondent by S/Shri Nitesh Joshi & S.S.Jhunjhunwala सन ु वाई क" तार$ख / Date of Hearing : 13/05/2015 घोषणा क" तार$ख /Date of Pronouncement : 13/05/2015

आदे श / O R D E R

PER I.P.BANSAL, J.M:

This is filed by the Revenue and it is directed against order passed by Ld. CIT(A)-23, Mumbai dated2/9/2013 for assessment year 2009-10. Grounds of appeal read as under:

"1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was justified in deleting the addition made by the AO u/s. 40(a)(is) by holding that amendment to section 40(a)(ia) by finance Act, 20210 is having retrospective effect when legislature itself has made it prospective?

2."Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) is correct in holding that amendment to section 40(a)(ia) by finance Act, 2010 is having retrospective effect when legislature itself has made it prospective.

"3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in holding that amendment to section 40(a)(ia) by Finance Act, 2010 is having retrospective effect when the amendment in question is neither remedial nor curable in nature?.

2 आयकर अपील सं./I . T . A . N o . 7 0 3 6 / M U M / 2 0 1 1 3 ( नधा रण वष / A s s e s s m e n t Y e a r : 2 0 0 9 - 1 0

2. A sum of Rs.19,48,734/-, on which tax was deducted during the financial year was disallowed by the AO on the ground that TDS payment of Rs.43,458/- was made on 1/4/2009 i.e. well prior to due date of filing the return. The AO invoked section 40(a)(ia) to disallow the amount of Rs.19,48,734/-. Ld. CIT(A) relying upon the decision of ITAT Mumbai in the case of Piyush C. Mehta vs. ACIT, 31 CCH 111 and also the decision of Bangalore ITAT in the case of S.S. Warad vs. Additional CIT, 36 CCH 071 (Bang.) and also the decision of Hon'ble Culcutta High Court in the case of Virgin Creations in Income Tax Appeal No.3200 of 2011 has held that disallowance under section 40(a)(ia) was not called for as payment of TDS was made before due date of filing the return. The Department is aggrieved, hence, has filed aforementioned grounds of appeal.

3. Ld. DR relied upon the order passed by A.O.

4. On the other hand, Ld. AR in addition to the decisions relied upon before Ld. CIT(A) has also placed reliance on the decision of Hon'ble Gujarat High Court in the case of CIT vs. AshokJ. Patel, 225 Taxaman79(Guj), wherein their Lordships have held that amendment in section 40(a)(ia) by Finance Act 2010 would be retrospectively applicable. Reference was invited to paras 8.1 to 8.3

" 8.1 Now, so far as the question No.2 in Tax Appeal No. 1064 of 2013 for AY 2006-07 Le. disallowance of Rs.93,25,426 made under section 40(a)(ia) of the Act Le. with respect to retrospective operation of the amendment in Section 40(a)(ia) by Finance Act, 2010 is concerned, the said question is squarely covered against the revenue by decision of the Division Bench of this Court in Tax Appeal NoA12 of2013 and allied matters. The Division Bench of this Court in Tax Appeal NoA12 of20 13 and allied matters, has held that the amendment in section 40( a)(ia) of the Act by Finance Act, 2010 would apply retrospectively.

8.2 Mr. Parikh, learned counsel appearing on behalf of the revenue has fairly conceded that the aforesaid issue is squarely covered against the revenue by the Division Bench of this Court in Tax Appeal NoAi2 of 2013 and allied matters.

3 आयकर अपील सं./I . T . A . N o . 7 0 3 6 / M U M / 2 0 1 1 3 ( नधा रण वष / A s s e s s m e n t Y e a r : 2 0 0 9 - 1 0

8.3 Now, so far as disallowance made under section 40(a)(ia) with respect to AY 2005-06 is concerned, it appears that as such the assessee preferred appeal and claimed that the said expenditure be allowed in the next assessment year which has been accepted by the learned ITAT. Therefore, as such the question with respect to disallowance under section 40(a)(ia) would not arise in Tax Appeal No.1065 of2013 for AY 2005-06."

5. In this view of the situation, after hearing both the parties, respectfully following the decisions cited by Ld. AR , which include decision of Hon'ble Gujarat High Court in the case of CIT vs. Ashok J. Patel (supra), relevant portion has already been reproduced, we decline to interfere in the relief granted by Ld. CIT(A).

6. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 13/05/2015 आदे श क" घोषणा खल ु े यायालय म* +दनांकः 13/05/2015 को क" गई ।

Sd/- Sd/- राजे (RAJENDRA) आई.पी.बंसल (I.P.BANSAL)

लेखा सद य /ACCOUNTANT MEMBER या यक सद य /JUDICIAL MEMBER मुंबई Mumbai; +दनांक Dated 13/05/2015 आदे श क त"ल#प अ$े#षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आय/ ु त(अपील) / The CIT(A)-

4. आयकर आय/ ु त / CIT

5. 0वभागीय त न2ध, आयकर अपील$य अ2धकरण, मब ुं ई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, स या0पत त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मबंु ई / ITAT, Mumbai व. न.स.Vm , Sr. PS