Commissioner of Income tax-V, vs. M/s. INTRACK INC,

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 15TH DAY OF JULY 2014

PRESENT

THE HON’BLE MR.JUSTICE N.KUMAR

AND

THE HON’BLE MR.JUSTICE B.MANOHAR

INCOME TAX APPEAL NO.590/2013 C/W. INCOME TAX APPEAL NOs.333/2012, 457/2013, 319/2009, 242/2012, 334/2012, 12/2013 AND 595/2013.

IN I.T.A.NO.590/2013

BETWEEN:

… APPELLANTS

(BY SRI E.I.SANMATHI, ADV.)

AND:

SRI SANTOSH KUMAR SHETTY PROP: M/S DURGAMBA CONSULTANTY 2ND FLOOR, SRI TARA TOWERS BAJPE ROAD SURATHKAL

.. RESPONDENT

(BY SRI A.SHANKAR AND SRI M.LAVA, ADVS.)

2 THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 26/07/2013 PASSED IN ITA NO.1194/BANG/2012, FOR THE ASSESSMENT YEAR 2008-09, PRAYING THIS HON'BLE COURT TO:

i. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

ii. SET ASIDE THE APPELLATE ORDER DATED 26/07/2013 PASSED BY THE ITAT, 'B' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.1194/BANG/2012 DATED 26/07/2013, AS SOUGHT FOR IN THIS APPEAL.

IN I.T.A.NO.333/2012

BETWEEN:

… APPELLANTS

(BY SRI KAMALADHAR G, ADV.)

AND:

SHRI M K GURUMURTHY PROP. G.S. POWER SYSTEMS NO.462/34, 12TH CROSS 6TH MAIN, WILSON GARDEN BANGALORE-560 027

.. RESPONDENT

(BY SRI CHYTHANYA K K, ADV.)

THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 10/05/2012 PASSED IN ITA NO.717/BANG/2011, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE ITAT, BANGALORE IN ITA NO.717/BANG/2011 DATED 10/05/2012 CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), BANGALORE, IN THE INTEREST OF JUSTICE AND EQUITY.

IN I.T.A.NO.457/2013

BETWEEN:

… APPELLANTS (BY SRI KAMALADHAR G, ADV.)

AND:

SHRI S S WARAD PROP: M/S.KARNATAKA ROADLINES NO.13, RANGAPPA REDDY COMPLEX R.V.ROAD, MINERVA CIRCLE BANGALORE – 560 004

.. RESPONDENT

(BY SRI S PARTHASARATHI, ADV.)

THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 03/05/2013 PASSED IN ITA NO.375/BANG/2012, FOR THE ASSESSMENT YEAR 2009-2010, PRAYING THIS HON'BLE COURT TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE ITAT, BANGALORE IN ITA NO.375/BANG/2012 DATED 03/05/2013 AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-3, BANGALORE

IN I.T.A.NO.319/2009

BETWEEN:

… APPELLANTS (BY SRI K V ARAVIND, ADV.)

AND:

SRI.B.UDAYA KUMAR SHETTY CIVIL CONTRACTOR KRODA BAILOORU POST, KUNDAPUR TALUK UDUPI DIST

.. RESPONDENT

(BY SRI CHANDRASHEKAR FOR SRI R RAMAMURTHY, ADV.)

5 THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 16-1-2009 PASSED IN ITA NO.879/BANG/2008, FOR THE ASSESSMENT YEAR 2005-06, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE ITAT BANGALORE IN ITA NO.879/2008 DATED 16-1-2009 CONFIRM THE ORDERS OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASSESSING OFFICER, IN THE INTEREST OF JUSTICE AND EQUITY.

IN I.T.A.NO.242/2012

BETWEEN:

… APPELLANTS (BY SRI KAMALADHAR G, ADV.)

AND:

SHRI M G VISHWANATH REDDY PROP:M/S EXOTIC GRANITES AND MARBLES NO.5, LALBAGH HOSUR ROAD BANGALORE-560027

.. RESPONDENT

(BY SRI A.SHANKAR AND SRI M.LAVA, ADVS.)

6 THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 30/03/2012 PASSED IN ITA NO.660/BANG/2011, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDER DATED 30/03/2012 PASSED BY THE ITAT, BANGALORE IN ITA NO.660/BANG/2011 DATED 30/03/2012 CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE- 3(1), BANGALORE, IN THE INTEREST OF JUSTICE AND EQUITY.

IN I.T.A.NO.334/2012

BETWEEN:

… APPELLANTS (BY SRI KAMALADHAR G, ADV.)

AND:

SHRI K P VISHWANATHAN NO.1/7, 2ND FLOOR DDUTTL INDUSTRIAL SUBURB OPP. KANTEERAVA STUDIO YESHWANTHAPUR

7 BANGALORE-560022

.. RESPONDENT

(BY SRI S PARTHASARATHI, ADV.)

THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 25/05/2012 PASSED IN ITA NO.692/BANG/2011, FOR THE ASSESSMENT YEAR 2008-2009, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE ITAT, BANGALORE IN ITA NO.692/BANG/2011 DATED 25/05/2012 CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), BANGALORE, IN THE INTEREST OF JUSTICE AND EQUITY.

IN I.T.A.NO.12/2013

BETWEEN:

… APPELLANTS (BY SRI KAMALADHAR G, ADV.)

AND:

SHRI S.S. WARAD

8 PROP: M/S KARNATAKA ROADLINES NO.13, RANGAPPA REDDY COMPLEX R.V.ROAD, MINERVA CIRCLE BANGALORE-560004

.. RESPONDENT

(BY SRI S PARTHASARATHI, ADV.)

THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 03/08/2012 PASSED IN ITA NO.375/BANG/2012, FOR THE ASSESSMENT YEARS 2009-2010, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN,

II. ALLOW THE APPEAL AND SET ASIDE THE ORDER DATED 03/08/2012 PASSED BY THE

ITAT, BANGALORE IN ITA NO.375/BANG/2012 AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-3, BANGALORE.

IN I.T.A.NO.595/2013

BETWEEN:

… APPELLANTS (BY SRI KAMALADHAR G, ADV.)

AND:

9 SMT. VIMALA S.W. WARAD PROP: M/S MAHENDRA ROAD LINES NO.13, RANGAPPA REDDY COMPLEX R V ROAD, MINERVA CIRCLE BANGALORE - 560004

.. RESPONDENT

(BY SRI S PARTHASARATHI, ADV.)

THIS APPEAL IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 11/06/2013, PASSED IN ITA NO.1419/BANG/2012, FOR THE ASSESSMENT YEAR 2009-10, PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO:

I. FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE.

II. ALLOW THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE ITAT, BANGALORE IN ITA NO.1419/BANG/2012 DATED 11/06/2013 CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), BANGALORE.

THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, KUMAR J., DELIVERED THE FOLLOWING:

COMMON JUDGMENT

These appeals are filed by the Revenue challenging the order passed by the tribunal.

10 3. The substantial questions of law that arise for consideration in all these appeals is whether, the amendment to Section 40(a)(ia) by the Finance Act, 2010, which is given effect from 01.04.2010 is retrospective in nature.

Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted during the previous year but paid after the due date specified in sub-section (1) of section 139, such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.

Provided further that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to

11 be an assessee in default under the first proviso to sub-section (1) of section 201, then, for the purpose of this sub-clause, it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso.

Explanation: For the purposes of this sub- clause,-

(i) “commission or brokerage” shall have the same meaning as in Explanation 2 to clause (i) of the Explanation to section 194H; (ii) “fees for technical services” shall have the same meaning as in Explanation 2 to clause (vii) of sub-section (1) of section 9; (iii) “professional services” shall have the same meaning as in clause (a) of the Explanation to section 194J; (iv) “work” shall have the same meaning as in Explanation III to section 194C; (v) “rent” shall have the same meaning as in clause (i) to the Explanation to section 194-I; (vi) “royalty” shall have the same meaning as in Explanation 2 to clause (vi) of sub- section (1) of section 9;

By Finance Act, 2010, the said provision is substituted by the following: Substituted by the Finance Act, 2010, w.e.f. 01.04.2010. Prior to its substitution, proviso as substituted by the Finance Act, 2008, w.r.e.f. 01.04.2005, read as under:

12 “Provided that where in respect of any such sum, tax has been deducted in any subsequent year, or has been deducted:-

(A). during the last month of the previous year but paid after the said due date; or

(B). during any other month of the previous year but paid after the end of the said previous year,

Such sum shall be allowed as a deduction in computing the income of the previous year in which such tax has been paid.”

13 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 Alide Motors (P.) Ltd. Vs. CIT reported in AIR 1997 SC 1361 and CIT Vs. Alom Extrusions Limited reported in (2009) 319 ITR 306, 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 1st April 2010 could be said to be clarificatory in nature for attending to unintended consequences, and therefore, is having retrospective effect from 1st April 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

14 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 Finance Act 2010 relaxes the rigors 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 Section 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

15 the disallowance of expenses like interest, commission, brokerage, etc.

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 1st April 2010.

16.5: Of course, the Legislature has given the effect from a specified date and applied the same to A.Y.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 A.Y.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 CIT V. 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

16 losing genuine deduction of expenditure on this count as also reflected in the speech of 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 statue 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 upto 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,

17 2008 of relaxing the time for deposit of TDS was made retrospective from the year 2005 [1st April 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 1st April 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 upto September of the next financial year.

17.1: We draw further support from the fact that the rigor 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% to 18% 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% to 10%, whereas, legitimate business expenditure denied is 100% - resulting into taxation of gross receipts

18 coupled with levy of interest and penalty, which would mean that the possibility cannot be ruled out of business of the tax payer getting closed down permanently, if there is absence of any scope of claiming any expenses in the next year.

19 9. Insofar as I.T.A.Nos.319/2009 and 333/2012 are concerned, it is submitted that they are entitled to the benefit even under the old provision. Therefore, notwithstanding that the said provision is now substituted by more liberal provision, they are also entitled to the benefit.

We find no merits in these appeals and the same are dismissed accordingly. No costs.

Sd/-

JUDGE

Sd/-

JUDGE

nvj