Shri Hiten Bansilal Shah, Ahmedabad V. The Income tax Officer,Ward-9(2), Ahmedabad

CO 72/AHD/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7112 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 02-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 01-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ARISING OUT OF
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT ME MBER I.T.A. NO.2854/AHD/2011(BY DEPARTMENT) ASSESSMENT YEAR 2008-09 INCOME TAX OFFICER, WARD-9(2) AHMEDABAD APPELLANT VS. SHRI HITEN BANSILAL SHAH PROP. KUSHI CONSTRUCTION 2, NIRUPAMKUNJ SOCIETY, P.T. COLLEGE ROAD, PALDI, AHMEDABAD PAN-AEGPS6765L RESPONDENT WITH C.O. NO.72/AHD/2012(BY ASSESSEE) (ARISING OUT OF I.T.A. NO.2854/AHD/2011) SHRI HITEN BANSILAL SHAH PROP. KUSHI CONSTRUCTION 2, NIRUPAMKUNJ SOCIETY, P.T. COLLEGE ROAD, PALDI, AHMEDABAD PAN-AEGPS6765L APPELLANT VS. INCOME TAX OFFICER, WARD-9(2) AHMEDABAD RESPONDENT DEPARTMENT BY :SHRI S.K. GUPTA, CIT-DR ASSESSEE BY :SHRI MUKESH M. PATEL, ADVOCATE ---------------- DATE OF HEARING : 02.05.2012 DATE OF PRONOUNCEMENT : 02.05.2012 ITA NO.2854/AHD/2011 , A. Y. 2008-09 WITH C.O. NO.72/AHD/2012 2 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THE APPEAL FILED BY THE REVENUE AND THE C.O. FILED BY THE ASSESSEE HAVE BEEN FILED AGAINST THE ORDER OF LD. CIT(A)-XV, AHMEDABAD, DATED 13 TH SEPTEMBER, 2011 PASSED IN APPEAL NO.CIT(A)-XV/9(2)/ 219/10-11. 2. THE REVENUE IN THIS APPEAL HAS COME BEING AGGRI EVED BY THE ACTION OF LD. CIT(A) IN DELETING DISALLOWANCE OF RS.9,21,860/ - MADE BY THE A.O. U/S 40(A)(IA) OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT ASSESSEE FILED I TS RETURN OF INCOME DECLARING INCOME OF RS.3,72,929/-, HOWEVER, IT WAS ASSESSED AT RS.12,94,790/- U/S 143(3) OF THE ACT IN WHICH DISALLOWANCE OF RS.9 ,21,860/- U/S 40(A)(IA) OF THE ACT WAS MADE BY THE A.O. ON ACCOUNT OF THE FACT THA T TDS ON PAYMENTS MADE TO LABOUR CONTRACTORS PRIOR TO MARCH, 2008, WHICH HAVE BEEN DEPOSITED IN THE GOVERNMENT ACCOUNT BY 31 ST MARCH, 2008 WAS ACTUALLY DEPOSITED IN THE GOVERNMENT ACCOUNT ON 30.08.2008. BEFORE LD. CIT(A ) THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HONBLE ITAT, AHMEDABAD BENCH KANUBHAI RAMJIBHAI VS. ITO 49 DTR (AHD)(TRIB) 70 PASSED IN ITA NO.3983 /AHD/2008 FOR A.Y. 2005- 06 AND SUBMITTED THAT FOLLOWING THE RATIO AS LAID D OWN IN THIS DECISION OF THE TRIBUNAL, ASSESSEES APPEAL MAY KINDLY BE ALLOWED. 4. LD. CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE B Y OBSERVING AS UNDER:- IT IS SEEN THAT THE DECISION OF JURISDICTIONAL ITA T IN THE CASE OF KANUBHAI RAMJIBHAI VS.ITO 49 DTR (AHD)(TRIB) 70 DEC ISION DATED 3.12.2010 IN ITA NO.3983/AHD/2008 A.Y. 2005-06 IS APPLICABLE HE RE. ACCORDING TO THIS DECISION THE AMENDMENT BROUGHT OUT BY THE FINANCE A CT, 2010 IS CURATIVE IN NATURE AND RETROSPECTIVE IN OPERATION AND ALLOWS DE DUCTION OF AMOUNTS ON WHICH ITA NO.2854/AHD/2011 , A. Y. 2008-09 WITH C.O. NO.72/AHD/2012 3 TDS HAS BEEN DEPOSITED IN GOVERNMENT ACCOUNT ON OR BEFORE DUE DATE OF FILING OF RETURN. IN THIS CASE DUE DATE OF FILING OF RETURN WAS 30.9.2008 AND THE ASSESSEE FILED RETURN OF INCOME ON 18.9.2008. AS TDS HAS BE EN DEPOSITED IN GOVERNMENT ACCOUNT (ON 30.8.2008) BEFORE DUE DATE OF FILING OF RETURN (ON 30.9.2008) THE AO IS DIRECTED TO DELETE THE DISALLOWANCE OF RS.9,21,8 60 MADE U/S 40(A)(IA). AGGRIEVED BY THIS ORDER OF LD. CIT(A), NOW TH E REVENUE IS IN APPEAL. 5. AT THE TIME OF HEARING, AT THE VERY OUTSET, LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL IS NOW COVERED BY RECENT DECISION OF HONBLE TRIBUNAL. IN SUPPORT OF HIS SUBMISSION HE FILED COPY OF THE DECISION OF THIS TRIBUNAL PASSED IN ITA NO.673/AHD/2010, A.Y. 2 006-07, DATED 30.03.2012 IN THE CASE OF SHRI SURESHBHAI G PATEL VS. THE INCOME TAX OFFICER, AHMEDABAD. LD. D.R. DID NOT OBJECT TO THIS SUBMISSION OF THE ASSES SEE. 6. HEARD BOTH SIDES AND PERUSED THE RECORD AND FIN D THAT SINCE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE BY PLACING RELIANCE ON THE DECISION OF THIS ITAT IN THE CASE OF KANUBHAI RAMJIBHAI (SUPRA) WHIC H IS IN CONFORMITY WITH THE RECENT JUDGMENT OF THIS TRIBUNAL IN THE CASE OF SHR I SURESHBHAI G PATEL VS. THE INCOME TAX OFFICER (SUPRA) ON THE ISSUE, WE FEEL NO NEED TO INTERFERE WITH THE ORDER PASSED BY LD. CIT(A) AND THE SAME IS HEREBY U PHELD. 7. AT THE TIME OF HEARING, THE C.O. FILED BY THE A SSESSEE WAS WITHDRAWN AND THE SAME IS DISMISSED AS WITHDRAWN. 8. IN THE RESULT, BOTH, THE REVENUES APPEAL AND T HE ASSESSEES C.O. ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 02 /05/2012 SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER JU DICIAL MEMBER ITA NO.2854/AHD/2011 , A. Y. 2008-09 WITH C.O. NO.72/AHD/2012 4 N.K. CHAUDHARY, SR. P.S. - 02/05/2012 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. !' / CONCERNED CIT 4. !' - / CIT (A) 5. #$% , & , / DR, ITAT, AHMEDABAD 6. %'( )* / GUARD FILE. BY ORDER/ , + / , & ,