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M/s Rounak Enterprises,14C, Sunshishti, Saki Vihar Road, Powai, Mumbai 400 072. Vs. A.C.I.T. Range 17(3), Mumbai.
August, 22nd 2014


                   ./I.T.A. No.6154 /Mum/2012
             (     /     Assessment Year : 2006-2007

M/s Rounak Enterprises,           /          A.C.I.T. Range 17(3),
14C, Sunshishti,                             Mumbai.
Saki Vihar Road,
Mumbai ­ 400 072.
     . / PAN : AAEFR0209E
 ( /Appellant)        ..                         (    / Respondent)

     Appellant by                 Shri Ajay R. Singh
     Respondent by :              Shri Durga Dutt
          / Date of Hearing                      : 17-06-2014
         /Date of Pronouncement : 20-08-2014

                            / O R D E R
Per Sanjay Garg, Judicial Member :

      The present appeal has been preferred by the assessee against the
order of ld. CIT(A) 29, Mumbai dated 25-07-2012 agitating the confirmation of
levy of penalty imposed by the A.O. u/s 271(1)(c) of the Act amounting to Rs.
11,45,853/- of the Income Tax Act, 1961 on account of disallowance of labour
charges u/s 40(a)(ia) of the Income Tax Act, 1961.

2.    The A.O. observed that the assessee had deposited the Tax Deducted at
Sources (TDS) after the due date.       He therefore held that the expenditure
claimed by the assessee was not allowable due to late deposit of TDS and
accordingly disallowed the same. He also imposed penalty u/s 271(1)(c) of
                                     2        ITA 6154/M/12

the Act holding that the assessee had made a wrong claim of expenditure
which was not allowable u/s 40(a)(ia) of the Act due to late deposit of TDS,
hence it amounted to furnishing of inaccurate particulars of its income. The
ld. CIT(A) confirmed the penalty imposed by the A.O. u/s 271(1)(c) of the Act
and hence the assessee is in appeal before us.

3.    We have heard the arguments of ld. Representatives of both the sides
and also perused the relevant material available with us. Admittedly, in the
case in hand it reveals that the assessee though had not deposited the TDS
before the due date as was prescribed u/s 40(a)(ia) of the Act, however, he
had deposited the TDS before the due date of filing of return. Admittedly, the
section 40(a)(ia) of the Act has been amended by the Finance Act, (2010) to
the effect that the due date for deposit of tax will be the due date as
prescribed in sub section (1) of section 139 of the Act i.e due date for filing of
return of income. The ld. Authorised Representative (AR) of the assessee has
invited our attention to the decision of the Hon'ble Delhi High Court in the
case of CIT vs. Naresh Kumar (2013) 262 CTR (Del) 389 wherein the Hon'ble
Delhi High Court has held that the amendment made to section 40(a)(ia) of
the Act vide Finance Act 2010 which states that the due date of deposit of
TDS will be the date of filing of return u/s 139(1) is applicable retrospectively.
While holding so, the Hon'ble Delhi High Court has relied upon another
decision in the case of CIT vs. Rajinder Kumar (ITA No. 65/2013) and further
in the case of CIT vs. Jagannath Steel Corporation to hold that the where the
statute is curative or merely declaratory of previous law, retrospective
operation is generally intended. In view of the above decision of the Hon'ble
Delhi High Court and in the absence of any decision to the contrary of our
Hon'ble jurisdictional High Court of Bombay, it is to be held that the
amendment to section 40(a)(ia) of the Act made vide Finance Act, 2010 is
applicable retrospectively and it cannot be said to be a case of violation of
provisions of section 40(a)(ia) of the Act.      Even otherwise, the A.O. has
                                             3       ITA 6154/M/12

      disallowed the claim of the assessee because of late deposit of TDS, it cannot
      be said to be a case of furnishing of inaccurate particulars of its income or
      concealment of income on the part of the assessee. Merely because the claim
      of the assessee has been disallowed that itself cannot be said to be a case of
      concealment of particulars of its income.        Under such circumstances, the
      imposition of penalty u/s 271(1)(c) of the Act is otherwise not sustainable in
      law. In view of our above observation, the penalty so imposed by the A.O. is
      ordered to be deleted.

      4.      In the result, the appeal filed by the assessee is allowed.

             Order pronounced in the open court on 20-08-2014.


                   - sd/-                                             sd/-
          (B.R. BASKARAN)                                      (SANJAY GARG)
       ACCOUNTANT MEMBER                                     JUDICIAL MEMBER
                              Dated 20-08-2014

       . ../ RK , Sr. PS

                /Copy of the Order forwarded to :
1.    / The Appellant
2.     / The Respondent.
3.     () / The CIT(A) ­29,, Mumbai
4.      / CIT ­17, Mumbai
5.             ,     ,  / DR, ITAT, Mumbai D Bench

6.     / Guard file.
                                                                               / BY ORDER,

                             //True Copy//
                                                          /  (Dy./Asstt.          Registrar)
                                                               ,   / ITAT, Mumbai
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