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Income Tax Appellate Tribunal, DELHI BENCH “A”, NEW DELHI
Before: SHRI H.S. SIDHU & SHRI PRASHANT MAHARISHI
ORDER PER H.S. SIDHU : JM
The Revenue has filed this Appeal against the impugned Order dated 20.06.2014 of the Ld. CIT(A)-V, New Delhi relevant to assessment year 2011-12.
The following are the grounds raised by the Revenue-
“1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition of Rs. 17,00,20,000/- made by the AO by disallowing the amount u/s. 40(a)(ia) as TDS on the same was deposited after the due date of filing of return of income u/s. 139(1) of the I.T. Act, 1961.
2. The appellant craves leave for reserving the right to amend, modify, alter, add or forego any ground(s) of appeal at any time before or during the hearing of this appeal.”
The brief facts of the case are that Assessee company is engaged in the business of civil construction, real estate, sale- purchase and infrastructure development. During the year under consideration the assessee company received contractual receipts of Rs. 94,92,32,145/- and made payment to sub-contractors for an amount of Rs. 91,43,51,166/- which included payment made of Rs.17,00,20,000/- to one M/s Arch Infra Projects Nirman Pvt. Ltd. The A.O. observed that though assessee company had deducted tax amounting to Rs.34,00,400/- on 03-10-2011 on above payments made to M/s. Arch Infra Projects Nirman Private limited, however, the same was deposited on 03.10.2011 and was thereby late deposit, which is after the due date of filing of return u/s 139(1) i.e. 30-09-2011. Accordingly, the A.O. invoked the provisions of sec.
40(a)(ia) of the Income tax Act and made the impugned addition of Rs. 17,00,20,000/- and assessed the income of the assessee at Rs. 18,35,31,330/- u/s. 143(3) of the I.T. Act, 1961 vide order dated 07.3.2014. Aggrieved with the addition made the assessee filed the appeal before the Ld. CIT(A), who vide his impugned order dated 20.6.2014 has deleted the addition in dispute and allowed the appeal of the assessee. Aggrieved with the order of the Ld. CIT(A), the Revenue is in appeal before the Tribunal.
Ld. DR relied upon the Order of the AO and reiterated the contentions raised in the grounds of appeal.
In this case, Notice of hearing to the assessee was sent by the Registered AD post, in spite of the same, assessee, nor its authorized representative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeal exparte qua assessee, after hearing the Ld. DR and perusing the records.
We have heard the Ld. DR and perused the relevant records, especially the impugned order. We find that TDS deducted by the assessee for Rs. 34,00,400/- on account of payment of Rs. 17,00,20,000/- to M/s Arch Infra Projects Nirman Private Ltd. was deposited in the government account on 03.10.2011, which in case of the assessee was beyond the due date of filing of Return of Income for A.Y. 2011-12, but then the rigor of the Act for disallowance of payment in such cases as mandated u/s. 40(a)(ia) have been softened in terms of first proviso to section 201 of the I.T. Act (with effect from 01.07.2012) read with second proviso to section 40(a)(ia) (with effect from 01.04.2013). We further note that these amendments are strictly speaking not relatable to assessment year 2011-12, to which the case of the assessee pertains, but then considering the fact that it is a beneficial legislation, the above provisions should in the interest of justice be considered as being declarative and curative in nature and consequently be treated as having retrospective effect from 01.04.2005 which is the date from which sub clause (ia) of section 40(a) was inserted by Finance Act, 2004. In fact by treating the above legislation as declaratory and therefore retrospective, it is the intention of the legislature which is being furthered and that the same would not run counter to the spirit of the enactment. In this connection, reliance was placed before the Ld. CIT(A) on the decision of Hon'ble ITAT in Rajeev Kumar Agarwal vs. ACIT dated 29.05.2014. Now, as in the facts of this case it has already been confirmed through the A.O. of the recipient of payment i.e. M/s Arch Infra Projects Nirman Private Ltd. that they have accounted for the receipts from the assessee for Rs. 17,00,20,000/- in their return of income for A.Y. 2011-12, which have been filed on 30.09.2011 and on which taxes have been paid, as per the copy of acknowledgment. Further, even the assessee has filed the certificate as required under the first proviso to section
Considering all the above discussion in totality the addition made for Rs. 17,00,20,000/- was rightly deleted by the Ld. CIT(A), which does not need any interference on our part, hence, we uphold the action of the Ld. CIT(A) and reject the ground raised by the Revenue.
In the result, the Appeal filed by the Department stands dismissed.
Order pronounced on 16/11/2017.