PRINCIPAL COMMISSIONER OF INCOME TAX 5 vs. M/S G K PATEL AND CO.

ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) C/TAXAP/819/2018 JUDGMENT [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal,”D” Bench, Ahmedabad (hereinafter referred to as “the learned Tribunal”) in ITA No.1881/AHD/2014 for the Assessment Year 2005-06 by which the learned Tribunal has dismissed the said Appeal preferred by the revenue and has confirmed the order passed by the learned CIT(A) deleting the disallowance of Rs.8,34,62,233/- made under Section 40(a)(ia) of the Income Tax Act, revenue has preferred the present Tax Appeal with the following proposed question of law; “Whether the Tribunal is right in law and on facts in deleting the disallowance of Rs.8,34,63,233/- made u/s. 40(a)(ia) of the Act by relying upon the decision in the case of Virgin Creation of Calcutta High Court wherein it has been held that amendment to Section 40(a)(ia) of the Act inserted by the Finance Act, 2010 is having retrospective effect. The issue is subjudice and SLP is pending against Hon’ble High Court order?’ [2.0] Chaudhary rendered in Tax Appeal Nos.1035/2014 & 1036/2014. It is required to be noted that in the present case the issue is for the Assessment Year 2005-06 i.e. amendment C/TAXAP/819/2018 JUDGMENT pre 01/04/2010. Apart from the fact that there is a direct decision of this Court against the revenue in the case of L.G. Chaudhary (Supra), even there is a subsequent decision of the Hon’ble Supreme Court in the case of Commissioner of Income-tax, Kolkata Vs. Calcutta Export Company reported in [2018] 93 taxmann.com 51(SC) by which it is held that the amendment made by the Finance Act, 2010, to the provisions of Section 40(a)(ia) is curative in nature and it should be given retrospective operation from date of insertion of said provision i.e. with effect from Assessment Year 2005- 06. [3.0]

In view of the above direct decision of the Hon’ble Supreme Court on the point, no substantial question of law arises in the present Tax Appeal. Under the circumstances, present Appeal deserves to be dismissed and is accordingly dismissed. (M.R. SHAH, J.) (A.Y. KOGJE, J.) siji