D.b. Income Tax Appeal v. M/S. Choudhary Construction Company, Dungarpur

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR : J U D G M E N T : D.B. INCOME TAX APPEAL NO.15/2013Commissioner of Income, Udaipur Vs. M/s. Choudhary Construction Company, Dungarpur Date of Judgment ::04[th] September, 2013 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAINHON'BLE MR. JUSTICE ARUN BHANSALI Mr. K.K. Bissa, for the appellant. ---- BY THE COURT: This appeal under Section 260A of the Income Tax Act,1961 ['the Act'] is directed against order dated 28.04.2010passed by the Income Tax Appellate Tribunal, Jodhpur Bench,Jodhpur ['the Tribunal'], whereby, the appeal preferred by theRevenue against appellate order dated 23.03.2009 passed bythe Commissioner of Income Tax (Appeals), Udaipur ['CIT (A)']was dismissed. The facts in brief are that the assessee a GovernmentContractor filed its return of income for the Assessment Year2005-06 declaring total income of Rs. 22,28,429/-. Theassessment was completed under Section 143(3) of the Act on atotal income of Rs. 72,76,430/-. The Assessing Officer ('AO') byhis order dated 19.11.2007 made addition of Rs. 50,48,001/-under Section 40(a)(ia) of the Act on account of non deposit of Tax Deducted at Source ('TDS') within the time prescribed underSection 200(1) of the Act. In the appeal preferred by the assessee, the CIT (A) takingnote of retrospective amendment in Section 40(a)(ia) of the Act,came to the conclusion that in view of the retrospectiveamendment, the deduction made in the last month of thefinancial year i.e. March, 2005 would be allowable, if the same isdeposited in the Government account before filing of the returnunder Section 139(1) of the Act and recorded a finding of factthat deduction was made on 01.03.2005 and 31.03.2005 byraising bills and the tax deducted was deposited before filing ofthe return under Section 139(1) of the Act and, therefore, theamount was deductable and, consequently, allowed the appeal inpart. On an appeal filed by the Revenue before the Tribunal, theTribunal noticing the finding recorded by the CIT (A) opined thatthere being no contrary material to the finding of fact reached bythe CIT (A), there was no reason to interfere with the decision inholding that the amount was deductable and, consequently,dismissed the appeal filed by the Revenue. It was contended by learned counsel for the appellant thatthe Tribunal fell in error in not examining the matter in itsentirety and it erred in upholding the deletion made by theCIT (A). We have gone through the findings recorded by theCIT (A) and the Tribunal and in our opinion the order impugned does not call for any interference. A finding of fact has been recorded by the CIT (A), which inturn has been affirmed by the Tribunal that the bills were raisedby the assessee on 01.03.2005 and 31.03.2005 and the TDSwas deposited by the assessee before filing of the return underSection 139(1) of the Act. In view of the retrospective amendment made in Section40(a)(ia) of the Act providing for deduction in case the amountof TDS is deposited on or before the due date specified in sub-section (1) of Section 139 of the Act, no exception can be takento the finding arrived at by the CIT(A) and affirmed by theTribunal. As the findings recorded by the CIT (A) and the Tribunalare essentially findings of fact, no substantial question of lawarises in the present appeal. Consequently, the appeal is dismissed. (ARUN BHANSALI),J. (NARENDRA KUMAR JAIN),J.