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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by the Revenue against the order dated 13.09.2017 of the Commissioner of Income Tax(Appeals)-1, Ludhiana [hereinafter referred to as ‘CIT(A)’].
The sole issue raised in this appeal is relating to the action of the Ld. CIT(A) in deleting the disallowance made by the Assessing officer u/s 40(a)(ia) of the Income-tax Act, 1961 (in short 'the Act').
Before us, the Ld. Counsel for the assessee has pleaded that though the assessee had deducted TDS on the amounts paid to certain parties, however, the respective payees had taken into consideration the amount
ITA No. 1609-Chd-2017- M/s Hindustan Wire Products Ltd., Patiala 2
received from the assessee while computing their taxable income and had
filed their income tax return accordingly. The Ld. counsel, therefore, relied
upon second proviso to section 40(a)(ia) of the Act inserted by the
Finance Act 2012, which provides that in case an assessee fails to deduct
TDS as per the provisions of section 40(a)(ia) of the Act, but he is not
deemed to be assessee in default under the first proviso to sub-section (1)
of section 201, then, for the purpose of provisions of section 40(a)(ia) of
the Act, it shall be deemed that as the assessee had 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. It is pertinent to mention
here that first proviso to Section 201 stipulates that a person if failed to
deduct tax in accordance with the provisions of the Act shall not be
deemed to be assessee in default, if a certificate is furnished from an
accountant in a prescribed form to the effect that the resident payee had
furnished the return of income tax and has taken into account the sum
received and has paid due taxes as payable as per his return of income.
The assessee before the Ld. CIT(A) relied upon the decision of the
Hon'ble Delhi High Court in the case of ‘CIT Vs. Ansal Land Mark
Township Private Limited’ [2015] 377 ITR 635 (Delhi), wherein, Delhi
High Court has held that the second proviso inserted by Finance Act 2012
is declaratory and curative in nature and has retrospective effect w.e.f.
1.4.2005. The Ld. CIT(A) considering the submissions of the assessee and
the relevant case laws held that since in this case the payees had taken
into account the sums received from the assessee and had filed their return
and paid due taxes, hence, in the light of the second proviso to section
ITA No. 1609-Chd-2017- M/s Hindustan Wire Products Ltd., Patiala 3
40(a)(ia) of the Act, no disallowance u/s 40(a)(ia) of the Act was warranted.
Being aggrieved by the above order of the CIT(A), the Revenue has come in appeal before us.
At the outset, Ld. Counsel for the assessee has placed on file a copy of another decision / order of the Hon'ble Punjab & Haryana High Court in the case of ‘PCIT-2, Chandigarh Vs. M/s Mobisoft Telesolutions Private Limited’ in ITA No. 495 of 2017 (O&M) order dated 3.10.2018, wherein, the findings so arrived at by the Hon'ble Delhi High Court in the case of ‘CIT Vs. Ansal Land Mark Township Private Limited, (supra) has
been reaffirmed by the Jurisdictional High Court . No distinguishing case law has been put before us by the Department. In view of this, we do not find any merit in the appeal of the Revenue and the same is accordingly dismissed. Order dictated and pronounced in the Open Court on 4.12.2018.
Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member Dated : 04.12. 2018 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar