Shalimar Plastic Industries, Vadodara V. Income Tax Officer, Ward-5(2), Vadodara

ITA 1010/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6270 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANTONY PARIATH
• Keywords: Business expenditure; Retrospective amendment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA NO. 1010/AHD/2016 (ASSESSMENT YEAR: 2011-12) SHALIMAR PLASTIC INDUSTRIES, 55-BALAJI SOCIETY, VIP ROAD, KARELIBAUG, VADODARA, GUJARAT - 390022 APPELLANT VS. INCOME TAX OFFICER, WARD 5(2), VADODARA RESPONDENT PAN: AAJFS3866P /BY ASSESSEE : NONE /BY REVENUE : SHRI ANTONY PARIATH, SR. D.R. /DATE OF HEARING : 17.01.2018 /DATE OF PRONOUNCEMENT : 23.01.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE CIT(A)-1, VADODARAS ORDER DATED 18.02.2016 IN CASE NO. CAB-1/323/2015-16, UPHOLDING ASSESSING OFFICERS ACTION MAKING SECTION 40(A)(IA) DISALLOWANCE OF RS.2,50,237/- AND LATTER BUSINESS EXPENDITURE DISAL LOWANCE OFRS.1,01,680/- @ 10% ITA NO. 1010/AHD/16 [SHALIMAR PLASTIC INDUSTRIES VS . ITO] A.Y. 2011-12 - 2 - ON GROSS AMOUNT OF RS.10,16,768/-; RESPECTIVELY, IN PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BE HEST. IT IS ACCORDINGLY PROCEEDED EX PARTE. THE APPEAL IS ACCORDINGLY TAKE N UP FOR ADJUDICATION ON MERITS. 3. WE ADVERT TO THE FORMER ISSUE OF SECTION 40(A)(I A) INTEREST DISALLOWANCE OF RS2,52,237/- AS PAID TO M/S. INDIA BULLS AND KOTAK MAHINDRA PRIME LTD. INVOLVING SUMS OF RS.2,25,464/- AND RS.24,773/-; ON THE GROUN D THAT IT HAD NOT DEDUCTED TDS THEREUPON AS PRESCRIBED UNDER 194A OF THE ACT. CAS E RECORDS REVEAL THAT THE ASSESSEE HAD INDEED NOT DEDUCTED ANY TDS ON THE ABO VE INTEREST PAYMENTS. IT HAS FILED NECESSARY CERTIFICATES BY BOTH THE PAYEES AS ANNEXURE E-1 AND D THAT THEY HAVE INCLUDED THE ABOVE INTEREST PAYMENTS IN THEIR RESPECTIVE INCOMES DECLARED FOR ASSESSMENT IN THE IMPUGNED ASSESSMENT YEAR. WE THE REFORE FIND NO MERIT IN LEARNED DEPARTMENTAL REPRESENTATIVES VEHEMENT CONTENTIONS THAT SECTION 40(A)(IA) 2 ND PROVISO INSERTED IN THE ACT VIDE FINANCE ACT, 2012 W.E.F. 01.04.2013 STIPULATING NON APPLICATION OF THE DISALLOWANCE PROVISION IN SE CTION IN CASE THE DEDUCTOR ASSESSEE IS NOT AN ASSESSEE IN DEFAULT U/S.201(1) O F THE ACT; TO BE HAVING ONLY PROSPECTIVE EFFECT. THIS TRIBUNALS CO-ORDINATE BE NCHS ORDER IN RAJEEV KUMAR AGARWAL VS. ADDL.CIT, ITA NO. 337/AGRA/2013; AS UPH ELD IN EXTEMPORE IN HONBLE DELHI HIGH COURTS DECISION IN CIT V. ANSAL LANDMAR K TOWNSHIPS PVT. LTD. [2015] 377 ITR 635 (DEL), HAS ALREADY HELD THE SAID PROVI SO TO BE A CURATIVE ONE HAVING RETROSPECTIVE EFFECT. WE THEREFORE ACCEPT ASSESSEE S INSTANT FORMER SUBSTANTIVE GROUND FOR STATISTICAL PURPOSES AND LEAVE IT OPEN F OR THE ASSESSING OFFICER TO VERIFY THE NECESSARY FACTS IN CONSEQUENTIAL PROCEEDINGS. 4. THIS LEAVES US WITH LATTER ISSUE OF AD HOC DISAL LOWANCE OF BUSINESS EXPENDITURE @ 10% COMING TO RS.1,01,680/-. THE CIT (A) HOLDS THE ASSESSEE NOT HAVE FILED ANY SUBMISSION DURING THE COURSE OF LOWE R APPELLATE PROCEEDINGS. HE THEREFORE UPHOLDS ASSESSING OFFICERS ACTION UNDER CHALLENGE MAKING THE IMPUGNED DISALLOWANCE. THE SAID LOWER APPELLATES CONCLUSIO N HAS NOWHERE BEEN CHALLENGED ITA NO. 1010/AHD/16 [SHALIMAR PLASTIC INDUSTRIES VS . ITO] A.Y. 2011-12 - 3 - IN ASSESSEES PLEADINGS BEFORE US. WE THEREFORE FI ND NO REASON TO INTERFERE WITH THE SAME. THIS LATTER SUBSTANTIVE GROUND IS ACCORDINGL Y DECIDED IN REVENUES FAVOUR. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF JANUARY, 2018.] SD/- SD/- ( PRADIP KUMAR KEDIA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 23/01/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0