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ACIT vs. Bhavook Chandraprakash Tripathi (ITAT Pune)

COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS:
COUNSEL:
DATE: March 18, 2015 (Date of pronouncement)
DATE: March 23, 2015 (Date of publication)
AY: 2010-11
FILE: Click here to download the file in pdf format
CITATION:
S. 40(a)(ia): Merilyn Shipping 136 ITD 23 (SB) cannot be followed but Q whether the second proviso to s. 40(a)(ia) is retrospective or not requires to be considered by the AO

Though the issue as to whether disallowance u/s 40(a)(ia) can be made only in respect of amounts that are “payable” as at the end of the year or whether it can also be made for amounts “paid” during the year has to be decided against the assessee (as the Special bench verdict in Merilyn Shipping and Transport Ltd. 136 ITD 23 (SB) has not been approved by some High Courts, the legal argument that the second proviso to section 40(a)(ia) of the Act (which was inserted by the Finance Act, 2012 w.e.f 01.04.2013 to provide that the disallowance u/s 40(a)(ia) of the Act would not be made if the assessee is not deemed to be an assessee in default under the first proviso to section 201(1) of the Act) is retrospective in nature as it has been introduced to eliminate unintended consequences which may cause undue hardships to the tax payers requires to be restored to the file of the Assessing Officer for consideration.

Note: There is a controversy over whether the second proviso to s. 40(a)(ia) is retrospective or not as shown by Rajeev Kumar Agarwal (ITAT Agra), G. Shankar (ITAT B’Lore) & The Ramanthali Service Co-operative Bank Ltd vs. ITO (ITAT Cochin). Merilyn Shipping has been held to be good law despite the various contrary HC verdicts in Arcadia Share & Stock Brokers Pvt. Ltd vs. DCIT (ITAT Mumbai)

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