Ramkrishna Shetty , Mumbai vs Assessee

ी संजय अरोड़ा, लेखा सद य, एवं ी िवजय पाल राव, याियक सद य के सम । BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER

आयकर अपील सं./ I.T.A. No.7143/Mum/2011 ( िनधा रण वष / Assessment Year : 2008-09)

Mr. Ramkrishna बनाम/ बनाम ACIT-20(2) Shetty Vs. Piramal Chambers C/o., Shree Lalbaug, Parel Raghavendra Mumbai-400 012. Construction Co., A-Wing, 404, Hill View, Military Road, Andheri (E) Mumbai-400 059. थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : ARPOS 6602 B (अपीलाथ /Appellant) .. ( यथ / Respondent)

अपीलाथ ओर से / Appellant by : None यथ क ओर से/Respondent by : Shri Luv Kumar - DR

सुनवाई क तारीख / Date of Hearing : 21/01/2015 घोषणा क तारीख /Date of 28/01/2015 Pronouncement :

आदेश / O R D E R

PER VIJAY PAL RAO, JM :

This appeal by the assessee is directed against the order dated 05/08/2011 of CIT(A) for the assessment year 2008-09. The solitary ground raised by the assessee is as under :-

"On the facts and in the circumstances of the case and in law, the CIT has erred in upholding the disallowance made u/s. 40(a)(ia) of the Income tax Act 2 ITA No.7143/Mum/2011

amounting to Rs.58,68,903/-. The addition made u/s. 40(a)(ia) of the Income tax Act should be deleted."

2. At the time of hearing none appeared on behalf of the assessee however, the assessee has filed various judgments in support of its claim. Since the issue involved in the assessee's appeal is purely legal in nature and assessee has already filed various judgments and copies of challan of TDS paid by the assessee, therefore, we propose to hear and dispose the appeal of the assessee exparte.

3. We have heard the ld. DR and carefully perused the relevant record. The assessee is an individual and engaged in the business of civil contractor mainly for road construction under his proprietary concern Shree Raghavendra Construction Company. The AO has noted that the assessee has not deducted TDS as per the provisions of section 194C in respect of certain expenses and further, the TDS deducted by the assessee was not deposited with Government account within the stipulated time. Accordingly, the AO has disallowed the expenses to the tune of Rs.16,99,124/- for want of deduction of TDS and further, to the tune of Rs.58,68,903/- for want of timely payment in the government account after deduction of TDS. The issue before us is only w.r.t. disallowance u/s. 40(a)(ia) on account of TDS deducted but not paid in Government account within stipulated time. The AO has given details of these expenses as under :-

S.No. Paticulars or nature of Name of party Amount paid/credited (Rs.) expeses

1. Machinery Rent (194C) Gopal Swamy 4,15,828 V.Srinivas 2,96,514 Rajat Enterprises 5,09,997 Shivarudra 1,26,654 Total 13,48,993

2. Vehicle Hire charges (194C) Raja Reddy 5,10,250 Total 5,10,250

3. Sub Contractor Charges Kumarswamy Reddy 14,45,144 (194C) Total 14,45,144

4. Labour charges (194C) Kumarswamy Reddy 11,39,160 Chandrashekhar 14,23,350 3 ITA No.7143/Mum/2011

Total 25,64,516 TOTAL 58,68,903

4. The assessee challenged the action of the AO for disallowance made u/s. 40(a)(ia), but, could not succeed. There is no dispute that the TDS deducted in respect of expenses as given in above table was paid to the government account in the month of April, 2008. The assessee has also furnished the copy of challans of TDS paid on 08/04/2008 which is not disputed by the Revenue . Thus, it is clear that the assessee deducted the TDS in respect of the expenditure amounting to Rs.58,68,903/-. However, the same was paid in the government account on 08/04/2008. Though, in the year under consideration the provisions of section 40(a)(ia) requires that the TDS deducted before the month of March, is required to be paid before the end of previous year. However, subsequently 2nd proviso has been substituted vide Finance Act, 2010 w.e.f. 01/04/2010 under which the TDS deducted during the previous year is to be paid before the due date specified u/s. 139(1). This amendment has been considered by the various High Courts and it has been held that the amended proviso inserted by the Finance Act, 2010 is remedial and consequently invoking the provisions of section 40(a)(ia) in the case where the TDS has been deposited before the due date of filing the return is not justified. The Hon'ble Delhi High Cout in CIT vs. Naresh Kumar (362 ITR 256) while considering the amended proviso to section 40(a)(ia) has held in para 26 to 29 as under :-

"26. Principle of matching which is disturbed by Section 40(a)(ia) of the Act, may not materially be of consequence to the Revenue when the tax rates are stable and uniform or in cases of big assessees having substantial turnover and equally huge expenses as they have necessary cushion to absorb the effect. However, marginal and medium taxpayers, who work at low G.P. rate and when expenditure which becomes subject matter of an order under Section 40(a)(ia) is substantial, can suffer severe adverse consequences as is apparent from the case of Naresh Kumar. Transferring or shifting expenses to a subsequent year, in such cases, will not wipe off the adverse effect and the financial stress. Nevertheless the Section 40(a)(ia) has to be given full play keeping in mind the object and purpose behind the section. At the same time, the provision can be and should be interpreted liberally and equitable so that an assessee should not suffer unintended and deleterious consequences beyond what the object and purpose of the provision mandates. Case of Naresh Kumar is not one of rare cases, but one of several cases as we find that Section 40(a)(ia) is invoked in large number of cases.

4 ITA No.7143/Mum/2011 27. One important consideration in construing a machinery section is that it must be so construed so as to effectuate the liability imposed by the charging section and to make the machinery workable. However, when the machinery section results in unintended or harsh consequences which were not intended, the remedial or correction action taken is not to be disregarded but given due regard.

28. It is, in this context, that we had in Rajinder Kumar's case (supra) observed as under(page 252 of 362 ITR):

"Now, we refer to the amendments which have been made by the Finance Act, 2010 and the effect thereof. We have already quoted the decision of the Calcutta High Court in Virgin Creations (supra). The said decision refers to the earlier decision of the Supreme Court in the case of Allied Motors (P) Limited (supra) and Commissioner of Income Tax versus Alom Extrusions Limited, (2009) 319 ITR 306 (SC). In the case of Allied Motors (P) Limited (supra), the Supreme Court was examining the first proviso to Section 43B and whether it was retrospective. Section 43B was inserted in the Act with effect from 1st April 1984 for curbing claims of taxpayers who did not discharge or pay statutory liabilities but claimed deductions on the ground that the statutory liability had accrued. Section 43B states that the statutory liability would be allowed as a deduction or as an expense in the year in which the payment was made and would not be allowed, even in cases of mercantile system of accountancy, in the year of accrual. It was noticed that in some cases hardship would be caused to assessees, who paid the statutory dues within the prescribed period though the payments so made would not fall within the relevant previous year. Accordingly, a proviso was added by Finance Act, 1987 applicable with effect from 1st April, 1988. The proviso stipulated that when statutory dues covered by Section 43B were paid on or before the due date for furnishing of the return under Section 139(1), the deduction/expense, equal to the amount paid would be allowed. The Supreme Court noticed the purpose behind the proviso and the remedial nature of the insertion made. Of course, the Supreme Court also referred to Explanation 2 which was inserted by Finance Act, 1989 which was made retrospective and was to take effect from 1st April, 1984. Highlighting the object behind Section 43B, it was observed that the proviso makes the provision workable, gives it a reasonable interpretation. It was elucidated(page 686 of 224 ITR):

'In the case of Goodyear India Ltd. V. State of Haryana(1991) 188 ITR 402 (SC), this Court said that the rule of reasonable construction must be applied while construing a statute. Literal construction should be avoided if it defeats the manifest object and purpose of the Act.

Therefore, in the well-known words of Judge Learned Hand, one cannot make a fortress out of the dictionary; and should remember that statutes have some purpose and object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning. In the case of R.B. Jodhamal Kuthiala v. CIT (1971) 82 ITR 570 (SC), this Court said that one should apply the rule of reasonable interpretation. A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation so that a reasonable interpretation can be given to the section as a whole.

This view has been accepted by a number of High Courts. In the case of CIT v. Chandulal Venichand, (1994) 209 ITR 7 (Guj.), the Gujarat High Court has held that the first proviso to Section 43-B is retrospective and sales tax for the last quarter paid before the filing of the return for the assessment year is deductible. This decision deals with Assessment Year 1985-85. The Calcutta High Court in the case of CIT v. Sri Jagannath Steel Corpn.(1991) 191 ITR 676 (Cal.) has taken a similar view holding that the statutory liability for sales tax actually discharged after the expiry of the accounting year in compliance with the relevant statute is entitled to deduction under Section 43-B. The High Court has held the amendment to be 5 ITA No.7143/Mum/2011

clarificatory and, therefore, retrospective. The Gujarat High court in the above case held the amendment to be curative and explanatory and hence retrospective. The Patna High court has also held the amendment inserting the first proviso to be explanatory in the case of Jamshedpur Motor Accessories Stores v. Union of India. (1991) 189 ITR 70 (Patna). The special leave petition from this decision of the Patna High Court was dismissed. The view of the Delhi High Court, therefore, that the first proviso to Section 43-B will be available only prospectively does not appear to be correct. As observed by G.P. Singh in his Principles of Statutory Interpretation, 4th Edn. At p. 291: "It is well -settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended." In fact the amendment would not serve its object in such a situation unless it is construed as retrospective. The view, therefore, taken by the Delhi High Court cannot be sustained........

Section 43B deals with statutory dues and stipulates that the year in which the payment is made the same would be allowed as a deduction even if the assessee is following the mercantile system of accountancy. The proviso, however, stipulates that deduction would be allowed where the statutory dues covered by Section 43B stand paid on or before the due date of filing of return of income. Section 40(a)(ia) is applicable to cases where an assessee is required to deduct tax at source and fails to deduct or does not make payment of the TDS before the due date, in such cases, notwithstanding Sections 30 to 38 of the Act, deduction is to be allowed as an expenditure in the year of payment unless a case is covered under the exceptions carved out. The amended proviso as inserted by Finance Act, 2010 states where an assessee has made payment of the TDS on or before the due date of filing of the return under Section 139(1), the sum shall be allowed as an expense in computing the income of the previous year. The two provisions are akin and the provisos to Sections 40(a)(ia) and 43B are to the same effect and for the same purpose.

In Podar Cement Private Limited (1997) 226 ITR 625(SC), the Supreme Court considered whether term 'owner' would include unregistered owners who had paid sale consideration and were covered by Section 53A of the Transfer of Property Act. The contention of the assessees was that the amendments made to the definition of term 'owner' by Finance Bill, 1987 should be given retrospective effect. It was held that the amendments were retrospective in nature as they rationalise and clear the existing ambiguities and doubts. Reference was made to Crawford: 'Statutory Construction' and 'the principle of Declaratory Statutes', Francis Bennion: 'Statutory Interpretation', Justice G.P. Singh's 'Principles of Statutory Interpretation', it was observed that sometimes amendments are made to supply an obvious omission or to clear up doubts as to the meaning of the previous provision. The issue was accordingly decided holding that in such cases the amendments were retrospective though it was noticed that as per Transfer of Property Act, Registration Act, etc. a legal owner must have a registered document.

In view of the aforesaid discussion in paras 18,19 and 20, it is apparent that the respondent assesse did not violate the unamended section 40(a)(ia) of the act. We have noted the ambiguity and referred their contention of Revenue and rejected the interpretation placed by them. The amended provisions are clear and free from any ambiguity and doubt. They will help curtail litigation. The amended provision clearly support view taken in paragraphs 17 - 20 that the expression "said due date" used in clause A of proviso to unamended section refers to time specified in Section 139(1) of the Act. The amended section 40(a)(ia) expands and further liberalises the statue when it stipulates that deductions made in the first eleven months of the previous year but paid before the due date of filing of the return, will constitute sufficient compliance.'

29. In view of the aforesaid discussion, we do not find any merit in the present appeals filed by the Revenue and they are dismissed."

6 ITA No.7143/Mum/2011 4.1 Following the judgment of Hon'ble High Court of Delhi we delete the addition made u/s. 40(a)(ia) in respect of the expenditure on which the TDS was deducted by the assessee and deposited in the Government account on 08/04/2008.

5. In the result, appeal of the assessee is allowed.

Order pronounced in the open court on 28/01/2015.

आदेश क घोषणा खुले यायालय म) *दनांकः 28/01/2015 को क गई ।

Sd/- Sd/- ( Sanjay Arora ) ( Vijay Pal Rao ) लेखा सद य / ACCOUNTANT MEMBER याियक सद य / JUDICIAL MEMBER

मुंबई Mumbai; दनांक Dated 28/01/2015 व.िन.स./ Jv, Sr. PS

आदे श क ूितिल प अमे षत/Copy षत of the Order forwarded to : 1. अपीलाथ / The Appellant 2. ू यथ / The Respondent. 3. आयकर आयु (अपील) / The CIT(A)- 4. आयकर आयु / CIT 5. वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड$ फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स या पत ूित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai.