| COURT: | P&H High Court |
| CORAM: | G. S. Sandhawalia J., S. J. Vajifdar CJ |
| SECTION(S): | 40(a)(ia) |
| GENRE: | Domestic Tax |
| CATCH WORDS: | TDS disallowance |
| COUNSEL: | Ravish Sood |
| DATE: | April 29, 2015 (Date of pronouncement) |
| DATE: | June 30, 2015 (Date of publication) |
| AY: | 2005-06 |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
| S. 40(a)(ia): Argument that the disallowance for want of TDS can be made only for amounts "payable" as of 31st March and not for those already "paid" is not correct. In Liminie dismissal of SLP in Vector Shipping does not mean Supreme Court has confirmed the view of the HC. However, ITAT to consider whether payees have already paid tax | |
(i) The introduction of Section 40(a)(ia) had achieved the objective of augmenting the TDS to a substantial extent. When the provisions and procedures relating to TDS are scrupulously applied, it also ensured the identification of the payees thereby confirming the network of assessees and that once the assessees are identified it would enable the tax collection machinery to bring within its fold all such persons who are liable to come within the network of tax payers. These objects also indicate the legislative intent that the requirement of deducting tax at source is mandatory.
(ii) The argument that section 40(a)(ia) relates only to assessees who follow the mercantile system and does not pertain to the assessees who follow the cash system is not acceptable. The purpose of the section is to ensure the recovery of tax. We see no indication in the section that this object was confined to the recovery of tax from a particular type of assessee following a particular accounting practice.
(iii) The argument that section 40(a)(ia) applies only to amounts which are “payable” and not to amounts that are already “paid” is also not acceptable (Commissioner of Income Tax vs. Crescent Export Syndicate (2013) 216 Taxman 258 (Cal) and Commissioner of Income Tax vs. Sikandar Khan N. Tunwar (2013) 357 ITR 312 (Guj) followed)
(iv) Though in Commissioner of Income Tax vs. M/s Vector Shipping Services (P) Ltd (2013)262 CTR (All) 545, 357 ITR 642 it was held that no disallowance could be made u/s 40(a)(ia) as no amount remained payable at the year end and the Special Bench decision of the Tribunal in Merilyn Shipping & Transports, 136 ITD 23 (SB) (Vishakhapatnam) was noted, this cannot be agreed with as there is no reasoning for the finding. The dismissal of the department’s petition for special leave to appeal (SLP) was in limine. The dismissal of the SLP, therefore, does not confirm the view of the Allahabad High Court. As held by the Supreme Court in V.M. Salgaocar & Bros. (P) Ltd., etc. Vs. Commissioner of Income Tax, etc. (2000) 243 ITR 383 (SC) and in Supreme Court Employees Welfare Association vs. Union of India (1989) 4 SCC 187, when an SLP is summarily dismissed under Article 136 of the Constitution, the Court does not lay down any law and that the dismissal of an SLP in limine by a non speaking order does not justify any inference that the contentions raised on the merits of the case have been rejected.
ITAT is right that it has to look at the fact whether the payees already paid and already not paid, what is not paid is the only fact relevant and nothing else is real solid common sense. No law is illogical, wherever illogical that situation is not the intention of legislature as law makers are normally expected to be men of common sense only, so they would not budge natural justice that way natural justice has become vital in every society except in arbitrary societies but such arbitrary perception no one could ever imagine in any democracy, that way ITAT perception is right.