SRI SUDIP DAS,KOLKATA vs. ITO, WD-26(2), KOLKATA, KOLKATA

For the Appellant: Shri D. C. Chakraborty, Advocate For the Respondent: Shri Rajendra Prasad, JCIT, Sr. DR ORDER This appeal by assessee is arising out of order of CIT(A)-7, Kolkata vide Appeal No. 17/CIT(A)-7/W-26(2)/14-15 dated 01.01.2015. Assessment was framed by ITO, Wd-53(2), Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year 2008-09 vide his order dated 27.10.2010.

“….It further appears from the assessment order that neither the Assessing Officer nor the CIT(Appeal) has disbelieved the genuineness of the transaction. There was no dispute that the purchases were genuine. Accordingly, in our opinion, the learned Tribunal has correctly came to the conclusion by deleting the addition of Rs.15,69,116/- under section 40A(3) of the Act. On the other ground as it appears that the CIT(Appeal) has been directed to reconsider the matter. In view of that we do not think that any substantial question of law is involved in this matter. Hence the appeal being of 2008 is dismissed.” Ld. Counsel for the assessee agreed to the proposition that the issue stands covered against the assessee and admittedly assessee has not deducted TDS on these two 2 Sri Sudip Das AY 2008-09 payments but he stated that now in view of amendment in section 40(a)(ia) of the Act by bringing the second proviso by Finance Act, 2012 is held to be retrospective by Hon’ble Delhi High Court in the case of CIT Vs. Ansal Land Mark Township (P) Ltd., ITA Nos. 160 & 161/2015 dated 26.08.2015, wherein it has been held as under: “No s. 40(a)(ia) disallowance for failure to deduct TDS on payment if payee has offered amount to tax. Second Proviso to s. 40(a)(ia) inserted by Finance Act 2013 w.e.f. 1.4.2013 should be treated as curative and to have retrospective effect from 1.4.2005. ITAT praised for "thorough analysis" of the provision”