Parmanand Tiwari vs. ITO (ITAT Kolkata)
The proviso to sub-rule (2) of Rule 37BA of the Rules
mitigates the hardship faced by assessee for claiming credit of TDS whereby
deductee files a declaration with the deductor and the deductor reports the tax
deduction in the name of other person in the information relating to deduction
of tax as referred to in sub-rule (1) of Rule 37BA of the Rules. In such
provisions of law, the assessee should
have been allowed credit for TDS in the
given set of facts and circumstances of the case. The only issue is that the
amended provision is applicable w.e.f. 01.04.2009 and the relevant assessment
year involved is 2008-09. Whether the amended Rule as amended by Amendment
Rules, 2009 is a beneficial provision mitigating the hardship of the assessee
and in turn the same can be declared as retrospective and will apply to all
pending matters. Similar issue was dealt by Hon’ble Supreme Court in the case
of Allied Motors Pvt. Ltd. Vs. CIT (1997) 224 ITR 677 (SC), wherein it has been
held that “the provisions of the first proviso, which has newly been inserted
by the Finance Act, 1987, with effect from 1st April, 1998, to section 43B is
remedial in nature, designed to eliminate unintended consequences which may
cause undue hardship to the assessee and which made the provision unworkable or
unjust in a specific situation, and is of clarificatory nature and, therefore,
has to be treated as retrospective with effect from 1st April, 1984, the date
on which section 43B has newly been inserted by the Finance Act, 1983.”
Similarly, here also the Rule was inserted by the Amendment Rules, 2009 to
remove the hardship faced by assessees and to give true meaning to the
provision of section 199 of the Act
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