1. Income Tax Officer, Vs. Smt. Rosamma Korah, ITA Nos. 646 & 663 (COCH.) of 2013, Date of Order: 07.03.2014, ITAT - COCHIN
'Due date' mentioned u/s 54F is due date for filing return u/s 139(1)
The Apex Court
had an occasion to interpret the provisions of Income-tax Act in
Prakash Nath Khanna v. CIT [2004] 266 ITR 1/135 Taxman 327 (SC), more
particularly, the term 'due date' and held that due date means the due
date for filing the return under section 139(2) and not section 139(4).
The Apex Court further found that had the intentions of the Legislature
was to permit the assessee to file the return u/s 139(4) also, the use
of the expression "section 139" alone would have been sufficed. The
Legislature would not have said that it should be filed u/s 139(1). When
the Legislature specifically refers to section 139(1), it cannot be the
intention to permit the assessee to file the return u/s 139(4) also.
The Supreme Court specifically observed that it cannot be said that the
Legislature without any purpose or intent specified only the
sub-sections (1) and (2) and the conspicuous omission of sub-section (4)
has no meaning or purpose behind it. Sub-section (4) of section 139
cannot by any stretch of imagination control the operation of
sub-section (1) wherein a fixed period for furnishing the return is
stipulated.
(Please click here for judgment)
2. Rajeev
Kumar Agarwal Vs. Additional Commissioner of Income Tax Range 3, ITA
No.: 337/Agra/2013, Date of Pronouncement: 29.05.2013, ITAT - Agra
No
disallowance to be made us. 40(a)(ia) upon failure to deduct TDS on
payment if payee has offered amount to tax. Second proviso to s.
40(a)(ia) shall operate retrospectively since 01.04.2005
The second
proviso to s. 40(a)(ia), introduced by the Finance Act 2013 w.e.f.
01.04.2013, read with s. 201, provides that despite failure to deduct
TDS, disallowance of the expenditure shall not be made if the resident
payee has (i) furnished his return of income u/s 139, (ii) taken into
account such sum for computing income in such ROI, (iii) paid the tax
due on the income declared by him in such return of income and (iv)
furnishes a certificate to this effect from an accountant in the
prescribed form. The scheme of s. 40(a)(ia) is aimed at ensuring that an
expenditure should not be allowed as deduction in the hands of an
assessee in a situation in which income embedded in such expenditure has
remained untaxed due to tax withholding lapses by the assessee. It is
not a penalty for tax withholding lapse but it is a sort of compensatory
deduction restriction for an income going untaxed due to tax
withholding lapse. S. 40(a)(ia), as it existed prior to insertion of
second proviso thereto, went much beyond the obvious intentions of the
lawmakers and created undue hardships even in cases in which the
assessee’s tax withholding lapses did not result in any loss to the
exchequer. Now that the legislature has been compassionate enough to
cure these shortcomings of provision, and thus obviate the unintended
hardships, such an amendment in law, in view of the well settled legal
position to the effect that a curative amendment to avoid unintended
consequences is to be treated as retrospective in nature even though it
may not state so specifically, the insertion of second proviso must be
given retrospective effect from the point of time when the related legal
provision was introduced.
(Please click here for judgment)
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