Income Tax Appellate Tribunal - Bangalore
M/S Webb India Pvt. Ltd.,, vs Department Of Income Tax on 8 October, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
BANGALORE BENCH 'C', BANGALORE
BEFORE SMT P. MADAHVI DEVI, JUDICIAL MEMBER
AND
SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER
ITA No.86(Bang) 2014
(Assessment year : 2009-10)
The Deputy Commissioner Income-tax,
Circle-12(5) 14/3, 4th Floor,
Rashtrothana Bhavan, (Opp. RBI)
Bangalore-560 001 Appellant
Vs
M/s Webb India Pvt. Ltd.,
No.143E, Bommasandra Ind.Area, Phase-I & II,
Bommasandra,
Bangalore-560 099 Respondent
Pan No.AAACW1349M
Revenue by : Dr. Shankar Prasad, JCIT
Assessee by : Shri Anjan Agarwal, GM, Finance
Date of hearing : 08-10-2014
Date of pronouncement : 08-10-2014
ORDER
PER SHRI ABRAHAM P GEORGE, AM:
This is an appeal filed by the revenue directed against an order dated 10-10-2013 of CIT(A)-III, Bangalore. Revenue has raised 5 grounds of which grounds one, four and five are general needing no adjudication. 2 ITA No.86(Bang)2014
2. Vide its ground no.2, revenue is aggrieved that the CIT(A) deleted an addition made by the AO relying on Section 40a(ia) of the IT Act, 1961 (in short 'The Act').
3. Facts apropos are that the assessee engaged in the business of design, supply, erection and commissioning of material handling systems has declared an income of Rs.7,07,08,019/- for the impugned assessment year. During the course of assessment proceedings it was noticed by the AO that deduction of tax at source were made by the assessee in certain cases after due date and also remitted after the due date. Argument of the assessee was that though, there was delay in remitting the taxes to the Government these were indeed paid before the due date of filing of return of income. However, the AO was not impressed. As per the AO the taxes deductible by the assessee was not on payments effected in March, 2009, but for earlier months. Therefore, the assessee ought have deducted tax and remitted it to the Government before the end of the previous year, which was not done. Relying on Section 40a(ia), of the Act, he made a disallowance of Rs.62,90,647/-.
4. In its appeal before the CIT(A), the argument of the assessee was that the taxes deducted were remitted before the due date of filing of return. As per the assessee the remittances were effected by 30-05-2009. Reliance was placed on the decision of the Co-ordinate Bench of this 3 ITA No.86(Bang)2014 Tribunal in the case of ACIT Vs M.K.Gurumurthy, (2012) 32 CCH 049. The CIT(A) following the above order allowed this ground of the assessee.
5. Now before us learned DR submitted that the deductions were not relatable to any payments effected by the assessee in the last month of the relevant previous year and therefore, the assessee could not take refuge under the guise that payments were effected to the Government before the due date of filing of return. Per contra, learned AR supported the order of the CIT(A).
4. We have perused the orders and heard both sides. In our opinion, the issue whether deductions of tax at source made by an assessee is to be remitted before the end of the relevant previous year or it is enough if it is paid before the due date of filing of return is no more res-integra. Hon'ble Kolkata High Court in the case of CIT Vs Virgin Creations (ITA No.302 of 2011 dated 23-11-2011) had held that amendment to Section 40a(ia) was having retrospective operation and such retrospectivity applied from 01-04- 2005 itself. It was held by their Lordship that remittances of deducted tax, if made before the due date of filing the return would be enough and Section 40a (ia) would not be attracted. The same view was taken by the Co-ordinate Bench of this Tribunal in the case of Shri Santosh Kumar Shetty Vs ACIT (ITA No.1194(B)/12 dated 26-07-2013. Co-ordinate Bench held that in view of the decision of the Hon'ble Kolkata High Court in the case of CIT Vs Virgin Creations, (supra) the decision of the Special Bench in 4 ITA No.86(Bang)2014 the case of Bharati Shipyard Ltd., Vs DCIT(2011)132 ITD 53 was no more good law. Revenue had carried the matter before the Hon'ble Karnataka High Court and the Hon'ble Karnataka High Court in the case of CIT Vs Sri Santosh Kumar Shetty (ITA No.590/2013 clubbed with ITA No.333/2012,457/2013,319/2009,242/2012,334/2012,12/2013 and 595/2013 judgment dated 15-07-2014), has confirmed the view taken by the Co-ordinate Bench and upheld the retrospectivity of the amendment made to Section 40a(ia) by Finance Act, 2010. Relevant paras of the judgment is reproduced hereunder;
"5. The argument of the Revenue is, when the Finance Act, 2010, expressly states that the said provision would come into effect from 1-4-2010, it is not permissible for the Tribunals or the Courts to give it a retrospective effect prior to the date and therefore, it is submitted that the order passed by the Tribunal holding it as retrospective notwithstanding the fact that the Parliament made its intention clear by declaring that it comes into effect from 1-4- 2010. Therefore, the impugned orders are liable to be set aside.
6. This question came up for consideration before the Gujarat High Court in the case of CIT v. Om Praksh R. Chaudhary in Tax Appeal Nos.412/2013 and connected matter, which came to be decided on 22-11-2013, after referring to the judgments of Allied Motors (P.) Ltd. v. CIT (1997) 224 ITR 677/91 Taxman 205 5 ITA No.86(Bang)2014 (SC) and CIT v. Alom Extrusions Ltd. (2009) 319 ITR 306/185 Taxman 416 (SC), has held as under:
"15.4: Thus, considering relevant legislative changes made by the Parliament from time to time and some of the decisions relevant to consider the question of retrospectivity raised in these present appeals, the focal question, therefore, would be whether the amendment brought about by way of Finance Act 2010 in section 40 (a)(ia) with effect from 1-4- 2010 could be said to be clarificatory in nature for attending to unintended consequences, and therefore, is having retrospective effect from 1-4-2005.
16: A closer examination needs to be done as to whether the amended provision aims to expand the prevailing position and whether the same being in the nature of curative, retrospectivity of the same is permissible as is being contended for and on behalf of the assessee. At this stage, therefore, the true effect of such amendment needs to be discerned.
16.1: It is demonstrated before us that the TDS provision caused unintended inexplicable situation whereby the assessee who deducted the tax at source from the payments made by it for and on behalf of the Government and then if misses out the time limit of depositing the same with the Treasury within the time prescribed, the amount spent for its business purposes on account of the late deposit of such tax would result into disallowance of entire expenditure under section 40(a)(ia). The said proviso thereby caused immense hardship. The amendment under consideration made by the 6 ITA No.86(Bang)2014 Finance Act 2010 relaxes the rigours of such provision by permitting payment of Tax till the filing of return as provided under sub-section (1) of section 139 of the Act.
16.2: One can notice that-the object of brining about provision of section 40(a)(ia) in the year 2005-06 was to augment compliance of TDS provision. TDS either not deducted or deducted but not paid in respect of payment of interest, commission or brokerage etc., before the expiry of time prescribed under sub-section (1) of section 200 and in accordance with the other provisions of Chapter XVII, such amount shall not be deducted in computing the 'income' chargeable under the head 'Profit & Gains' of business or profession. Such provision starts with non-obstante clause which states that notwithstanding " anything contained in sections 30 to 38 of the Income-tax Act, if the tax deducted at source is not paid within prescribed time (under section 200 (1)), no amount could be deducted while computing the income, under Chapter IV of the 'computation of business income'.
16.3: Thereafter, by way of amendment of Finance Act, 2008, further amendment was made whereby TDS deductible and deducted in the last month of previous year if was not paid till the due date of filing of return under sub- section (1) of section 139 and in any other case, on or before the last day of the previous year, section 40(a)(ia) provided for the disallowance of expenses like interest, commission, brokerage, etc. 7 ITA No.86(Bang)2014 16.4: Since, this had created anomaly, whereby tax deducted in the last month was permitted payment till filing of return as per sub-section (1) of section 139 whereas for the TDS deducted during the rest of the months, period was provided only till 31st March of the previous year, Finance Act, 2010 was brought. To bring parity, to remedy unintended consequences and to make the provision workable, it proposed" to amend the said provision and provided inter alia that no disallowance would be made if after deduction of tax during the previous year, the same has been paid on or before the due date of filing of return of income as specified in sub-section (1) of section 139. This has been given retrospective effect from 1-4-2010.
16.5: Of course, the Legislature has given the effect from a specified date and applied the same to assessment year 2010-11 and subsequent years, this provision being curative in nature, its effect needs to be read retrospectively in operation. Its very purpose would not be sub-served, if the effect is limited to assessment year 2010-11 and subsequent years only. Strict construction if leads to a result not intended to be fulfilled by the object of legislation and another construction is possible apart from literal construction, then that construction needs to be preferred as held in a decision in case of Alom Extrusion Limited (supra).
16.6: We also cannot be oblivious of submissions not denied by the other side that various representations were made to the Finance Minister to bring about suitable amendment as the assessee otherwise was losing genuine deduction of expenditure on this count as also reflected in the speech of 8 ITA No.86(Bang)2014 Finance Minister so also in the memorandum explaining the provision of the Finance Bill.
16.7: Giving plain or natural meaning to the amendment as contended by the Department, if is likely to create a situation enhancing the hardship and advance discrimination, purposive and. reasonable interpretation is required to be given by the Court. When plain interpretation frustrates the very legislative intent, the Court is expected to bear in mind the legislative intent from the language used in the statute with the help of permissible tools of interpretation of statute.
17: The core issue as to whether the amendment made by the Finance Act 2010 to section 40(a)(ia) of the Act is retrospective from the date of insertion of the provision i.e., 1st April, 2005 therefore needs to be answered in affirmation. It can be seen that the amendment made by the Finance Act 2010 allows additional time up to the due date of filing of the return in respect of even those instances where TDS has been deducted during the first eleven months of the previous year. The additional time till the due date of filing of the return, in case of TDS made during the last month of the previous year was already available by the amendment made by Finance Act 2008. Thus, it is apparent that the relaxation made by the amendment made under the Finance Act, 2010 brings the law in parity with the aforementioned situation and accordingly, for the TDS deducted all throughout the year, time is extended from payment till the filing of return. It is thus apparent that when the amendment introduced by the Finance Act, 2008 of relaxing the time for deposit of TDS was made retrospective 9 ITA No.86(Bang)2014 from the year 2005 (1-4-2005), the amendment by Finance Act 2010 with regard to other limb of time limit for payment of TDS has to be held retrospective not from 1-4-2010 only. If we recall at this stage the speech of Finance Minister while introducing this provision by way of Finance Act, 2010, this amendment essentially has been brought for relaxing the current provision on disallowance of expenditure. The tax, if is deducted at any time during the financial year and paid before the date of filing of the return, the Legislature intended to allow deduction on such expenditure with an intention to permit additional time for most deductors up to September of the next financial year.
17.1: We draw further support from the fact that the rigour of payment of interest is also enhanced by increasing the interest (charged on tax deducted, if any deposit by the specified date i.e., up to the filing of the return is not made from 12 per cent to 18 per cent per annum in the provision of section 201 (1A). Prior to the said amendment of Finance Act, 2010 under section 201 (1A), assessee was liable to pay simple interest at one per cent for every month or part of month, in case of failure to deduct tax on payment of deducted tax, increase is made correspondingly from one per cent to one and half per cent for every month or part of month for discouraging delay in deposit.
As rightly contended by the respondents arithmetical discrepancy can be well-judged from the fact that the rates of TDS may vary between 1 per cent to 10 per cent, whereas, legitimate business expenditure denied is 100 per cent - resulting into taxation of gross receipts coupled with 10 ITA No.86(Bang)2014 levy of interest and penalty, which would mean that the possibility cannot be ruled out of business of the taxpayer getting closed down permanently, if there is absence of any scope of claiming any expenses in the next year."
7. Similar is the view expressed by the Delhi High Court in the cases of CIT v. Oracle Software India Ltd. (2007) 293 ITR 353/164 Taxman 478, H.S. Mohindra Traders v. ITO (2011) 44 SOT 43 and Calcutta High Court in the case of CIT v. Virgin Creations (ITAT No. 302 of 2011 and G.A. No. 3200 of 2011, dated 23-11-2011).
8. We are in the respectful agreement with the view expressed by the Gujarat High Court in giving retrospective operation to the said amendment notwithstanding that the parliament has expressly stated that it comes into effect from 1-4-2010.
We therefore, find no good reason to interfere with the order of the CIT(A), ground no.2 stands dismissed.
5. Vide its ground no.3, revenue is aggrieved that the CIT(A) had allowed depreciation on printers and scanners at the rate of 60%. Assessee had claimed depreciation on printers and scanners at 60%, considering it as computer software. AO disallowed such claim. Learned CIT(A) allowed the appeal of the assessee relying on the decision of the Special Bench in the case of DCIT Vs Data Craft India Ltd., 40 SOT 295(Mum.). Nothing was 11 ITA No.86(Bang)2014 brought before us by the learned DR to take a different view. We therefore, do not find any reason to interfere with the order of the CIT(A) in this regard. The claim of the revenue in this regard is without any merit. Ground no.3 stands dismissed.
6. In the result, the appeal of the revenue stands dismissed. Order pronounced in the open Court on the 8th October, 2014.
Sd/- Sd/-
(P MADHAVI DEVI) (ABRAHAM P GEORGE)
JUDICAL MEMBER ACCOUNTANT MEMBER
Bangalore:
D a t e d : 08-10-2014
am*
Copy to :
1 Appellant
2 Respondent
3 CIT(A), Bangalore
4 CIT
5 DR, ITAT, Bangalore.
6 Guard file
By order
AR, ITAT, Bangalore