C.I.T.UDAIPUR vs. M/S CHOUDHARY CONSTRUCTION

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G M E N T : D.B. INCOME TAX APPEAL NO.15/2013 Commissioner of Income, Udaipur Vs. M/s. Choudhary Construction Company, Dungarpur Date of Judgment :: 04th September, 2013 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE ARUN BHANSALI Mr. K.K. Bissa, for the appellant. ---- BY THE COURT: This appeal under Section 260A of the Income Tax Act, 1961 ['the Act'] is directed against order dated 28.04.2010 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur ['the Tribunal'], whereby, the appeal preferred by the Revenue against appellate order dated 23.03.2009 passed by the Commissioner of Income Tax (Appeals), Udaipur ['CIT (A)'] was dismissed. The facts in brief are that the assessee a Government Contractor filed its return of income for the Assessment Year 2005-06 declaring total income of Rs. 22,28,429/-. The assessment was completed under Section 143(3) of the Act on a total income of Rs. 72,76,430/-. The Assessing Officer ('AO') by his order dated 19.11.2007 made addition of Rs. 50,48,001/- under Section 40(a)(ia) of the Act on account of non deposit of 2 Tax Deducted at Source ('TDS') within the time prescribed under Section 200(1) of the Act. In the appeal preferred by the assessee, the CIT (A) taking note of retrospective amendment in Section 40(a)(ia) of the Act, came to the conclusion that in view of the retrospective amendment, the deduction made in the last month of the financial year i.e. March, 2005 would be allowable, if the same is deposited in the Government account before filing of the return under Section 139(1) of the Act and recorded a finding of fact that deduction was made on 01.03.2005 and 31.03.2005 by raising bills and the tax deducted was deposited before filing of the return under Section 139(1) of the Act and, therefore, the amount was deductable and, consequently, allowed the appeal in part. On an appeal filed by the Revenue before the Tribunal, the Tribunal noticing the finding recorded by the CIT (A) opined that there being no contrary material to the finding of fact reached by the CIT (A), there was no reason to interfere with the decision in holding that the amount was deductable and, consequently, dismissed the appeal filed by the Revenue. It was contended by learned counsel for the appellant that the Tribunal fell in error in not examining the matter in its entirety and it erred in upholding the deletion made by the CIT (A). We have gone through the findings recorded by the CIT (A) and the Tribunal and in our opinion the order impugned

3 does not call for any interference. A finding of fact has been recorded by the CIT (A), which in turn has been affirmed by the Tribunal that the bills were raised by the assessee on 01.03.2005 and 31.03.2005 and the TDS was deposited by the assessee before filing of the return under Section 139(1) of the Act. In view of the retrospective amendment made in Section 40(a)(ia) of the Act providing for deduction in case the amount of TDS is deposited on or before the due date specified in sub- section (1) of Section 139 of the Act, no exception can be taken to the finding arrived at by the CIT(A) and affirmed by the Tribunal. As the findings recorded by the CIT (A) and the Tribunal are essentially findings of fact, no substantial question of law arises in the present appeal. Consequently, the appeal is dismissed. (ARUN BHANSALI),J. (NARENDRA KUMAR JAIN),J. A.K. Chouhan 36