Shri Hitendrakumar B.Patel,HUF, Ahmedabad V. The Income tax Officer,Ward-9(2), Ahmedabad

ITA 1099/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76745 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-06-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K
• Assessee Lawyers: MANUBHAI A PANCHAL
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER HITENDRAKUMAR B. PATEL- HUF, PROP. M/S JAYNI INFRASTRUCTURE, 4/A, KETAN SOCIETY, NR. SARDAR PATEL COLONY, NARANPURA, AHMEDABAD PAN: AANHH8999C (APPELLANT) VS THE ITO, WARD-9(2) AHMEDABAD (RESPONDENT) ASSESSEE BY: SRI MANUBHAI A. PANCHAL , A.R. REVENUE BY: SRI A.K. PANDEY, SR.D.R. DATE OF HEARING : 02-06-2014 DATE OF PRONOUNCEMENT : 06-06-20 14 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XV, AHMEDABAD DATED 20-01-2011 CONFIRMING THE DISALLOWA NCE OF RS. 1,94,353/- BY INVOKING THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT. ITA NO.1099/AHD/2011 ASSESSMENT YEAR 2007-08 I.T.A NO. 1099/AHD/2011 A.Y. 2007-08 PAGE NO HITENDRAKUMAR B. PATEL-HUF VS. ITO 2 2. THE AO DURING THE ASSESSMENT PROCEEDINGS FOUND T HAT ON PAYMENT OF RS. 1,94,353/- MADE TO PRINCES INFRASTRUCTURE ON 25-09-2006, TDS WAS DEDUCTED IN MARCH, 2007 AND WAS PAID IN THE GOVERNM ENT ACCOUNT ON 07- 04-2004. THE AO WAS OF THE VIEW THAT THIS TDS OUGH T TO HAVE BEEN DEPOSITED WITHIN THE FINANCIAL YEAR ITSELF. SINCE THE SAME WAS NOT DONE IN THIS CASE, HE INVOKING THE PROVISIONS OF SECTION 40 (A)(IA) OF THE ACT DISALLOWED THE SUM OF RS. 1,94,353/- AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. THIS ACTION OF AO WAS CONFIRMED BY LD. CIT(A). 3. BEFORE US LEARNED COUNSEL OF THE ASSESSEE PLACIN G RELIANCE ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ROYAL BUILDERS 220 TAXMAN 108 WHEREIN IT WAS HELD THAT WH ERE ASSESSEE DEPOSITED TDS BEFORE DUE DATE SPECIFIED IN SECTION 139(1) PROVISION OF SECTION 40(A)(IA) COULD NOT BE INVOKED, SUBMITTED T HAT ADDITION MADE BY AO AND SUSTAINED BY LD. CIT(A) MAY KINDLY BE DELETED. LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF LOWER AUTHORITIES. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD, WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT ON CONTRACT UAL PAYMENT OF RS. 1,94,353/- MADE BY ASSESSEE TO PRINCE INFRASTRUCTUR E ON 25-09-2006 TDS WAS DEDUCTED BY THE ASSESSEE AND THE SAME WAS DEPOS ITED IN THE GOVERNMENT ACCOUNT ON 07-04-2007 I.E. MUCH BEFORE D UE DATE OF FILING OF RETURN FOR THE ASSESSMENT YEAR UNDER APPEAL. ON TH ESE FACTS THE CASE I.T.A NO. 1099/AHD/2011 A.Y. 2007-08 PAGE NO HITENDRAKUMAR B. PATEL-HUF VS. ITO 3 LAWS RELIED BY THE ASSESSEE IS SQUARELY APPLICABLE WHEREIN GUJARAT HIGH COURT ON SIMILAR FACTS HELD AS UNDER:- 4. COUNSEL FOR THE REVENUE CANDIDLY POINTED OUT TH AT SUCH DECISION OF THE TRIBUNAL IN CASE OF H.S MOHINDRA TRADERS CASE (SUPR A) WAS CARRIED IN APPEAL BY THE REVENUE BEFORE THE DELHI HIGH COURT. THE DELHI HIGH COURT DISMISSED THE REVENUE'S APPEAL, MAKING FOLLOWING OB SERVATIONS:- THE ASSESSEE HAD DEDUCTED THE TAX AT SOURCE IN THE MONTH OF MARCH, 2007 FOR THE EXPENDITURE INCURRED IN FEBRUARY 2007, BUT THE SAME WAS DEPOSITED WITH THE INCOME TAX DEPARTMENT IN APRIL 2 007 I.E., MUCH BEFORE THE DUE DATE SPECIFIED IN SUB-SECTION (1) OF SECTIO N 139 OF THE INCOME TAX ACT FOR FILING THE RETURN. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE INCOME TAX APPELLATE TRIBUNAL [HEREINAFTER REFERRED TO AS. 'TH E TRIBUNAL'] HAS RIGHTLY INTERPRETED THE PROVISION OF SECTION 4O(A)(IA) AND PARTICULARLY, SUB-CLAUSE (A) THEREOF WHICH CLEARLY GIVES THE TIME TO THE ASS ESSEE TO DEPOSIT THE TDS ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECT ION (I) OF SECTION 139 OF THE ACT. THE ENTIRE CASE SOUGHT TO BE MADE IN TH IS APPEAL IS THAT THE TRIBUNAL WRONGLY RELIED UPON THE AMENDMENT WHICH CA ME INTO EFFECT FROM 1.04.2010. THIS IS CLEARLY ERRONEOUS IN AS MUCH AS SECTION 40(A)(IA) WAS AMENDED BY THE FINANCE ACT, 2008 WITH EFFECT FROM 0 1.05.2005 WHEREBY THE WORDS 'ON OR BEFORE THE DUE DATE SPECIFIED IN S UB-SECTION (1) OF SECTION 139' WAS SUBSTITUTED BY THE WORDS, 'HAS NOT BEEN PAID DURING THE PREVIOUS YEAR, OR IN THE SUBSEQUENT YEAR THE TIME P RESCRIBED UNDER SUN- SECTION (1) OF SECTION 200' OF THE ACT. WE, THUS, F IND NO MERIT IN THIS APPEAL. THIS APPEAL IS ACCORDINGLY DISMISSED.' 5. WE ARE BROADLY IN AGREEMENT WITH THE VIEW EXPRE SSED BY THE DELHI HIGH COURT. THE ISSUE BEING IDENTICAL, THE PRESENT TAX APPEAL IS ALSO DISMISSED. IN VIEW OF THE ABOVE, THE ADDITION OF RS. 1,94,353/ - MADE BY AO AND SUSTAINED BY LD. CIT(A) IS HEREBY DELETED. I.T.A NO. 1099/AHD/2011 A.Y. 2007-08 PAGE NO HITENDRAKUMAR B. PATEL-HUF VS. ITO 4 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 06/06/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,