Shri Babubhai Dahyabhai Patel, Surat V. The Income tax Officer.Ward-6(1), Surat

ITA 1145/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63204 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 18-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR
• Keywords: Procedural lapse
• Section: 143(3); 234B; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.1145/AHD/2011 ASSESSMENT YEAR :2007-08 BABUBHAI DAHYABHAI PATEL MATA FALIYA, AT & POST HAZIRA, TALA. CHORYASI, SURAT 394515 [ PAN NO.AHVPP 6533F ] V/S . INCOME TAX OFFICER, WARD-6(1), SURAT / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI RAJESH M UPADHYAY, AR /BY RESPONDENT SHRI D.K. SINGH, SR-DR /DATE OF HEARING 05-12-2012 /DATE OF PRONOUNCEMENT 14-12-2012 / // / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-IV, SURAT (CI T(A) FOR SHORT) DATED 17- 12-2010 PERTAINING TO ASSESSMENT YEAR (AY) 2007-08. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. DISALLOWANCE U/S 40(A)(IA) WITH REGARD TO SECTIO N 194C RS.10,37,155/-: (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN C ONFIRMING DISALLOWANCE OF RS.10,37,155/- U/S.40(A)(IA) WITH R EGARD TO NON DEDUCTION OF TDS U/S. 194C OF THE INCOME-TAX ACT, 1961 WITHOU T CONSIDERING THE FACT THAT THE APPELLANT HAD OBTAINED FORM NO. 15I FROM T HE DEDUCTEE. (B) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN N OT APPRECIATING THE FACT THAT THE APPELLANT IS ABSOLVED FROM LIABILITY OF TDS AS SOON AS FORM NO. 15I IS OBTAINED FROM THE DEDUCTEE AND THE PROCE DURAL LAPSE FOR ITA NO.1145/AHD/2011 A.Y. 2007-08 BABUBHAI D PATEL V. ITO WD-6(1) SRT PAGE 2 SUBMITTING FORM NO. 15J WILL NOT INVITE THE LIABILI TY OF TDS WHICH HAD ALREADY BEEN ABSOLVED. 2. NON GRANTING REFUND AND WRONG RAISING OF DEMAND : (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN N OT DIRECTING THE ASSESSING OFFICER TO GRANT REFUND ARISING OUT OF OR IGINAL RETURN FILED AND NOT GIVING CREDIT OF REFUND FOR OTHER YEARS ADJUSTED IN THE CURRENT YEAR. 3. MISCELLANEOUS: (A) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS )-IV HAS ERRED IN CONFIRMING THE INTEREST CHARGED U/S. 234B OF THE I. T. ACT WHEN SUCH ADDITIONS WERE NOT WARRANTED AT THE TIME OF FILING OF RETURN. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF TRANSPORTATION, HOUSE-KEEPING, LABOUR SUPPLY, WATER SUPPLY. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT FOR T HE AY 2007-08 AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON PERU SAL OF SCHEDULE-G TO THE PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER OBSE RVED THAT THE ASSESSEE HAS CLAIMED THE VEHICLE AND EQUIPMENT HIRE EXPENSES OF RS.10,37,155/- UNDER THE HEAD DIRECT EXPENSES. IT WAS FURTHER OBSERVED BY THE AO THAT FROM THE LEDGER ACCOUNT OF VEHICLE AND EQUIPMENT HIRE EXPENS ES, THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE ON THOSE PAYMENTS. T HE ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) WAS FRAMED THEREBY THE DISALLOWANCE U/S. 40(A)(IA) OF THE ACT OF RS.10,37,155/- WAS MADE. AGAINST THIS, ASSESSEE FILED APPEAL BEFORE LD. CIT( A) WHO AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE DISMISSED THE APPEAL. 3. THE ASSESSEE FEELING AGGRIEVED BY THIS ORDER PRE FERRED APPEAL BEFORE THE TRIBUNAL. 4. GROUND NO.1 AND 2 ARE INTER-CONNECTED, HENCE ARE BEING HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF CONSOLIDATED OR DER. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT LD. CIT(A) FAILED TO APPREC IATE THE FACT THAT ASSESSEE HAD FURNISHED FORM NO. 15J, THEREFORE THE TAX WAS NOT DEDUCTIBLE. HE PLACED RELIANCE ON THE ORDER OF HONBLE CO-ORDIN ATE BENCH RENDERED IN ITA ITA NO.1145/AHD/2011 A.Y. 2007-08 BABUBHAI D PATEL V. ITO WD-6(1) SRT PAGE 3 NO. 3263/AHD/2011 AND ITA NO. 63/AHD/2012 FOR A.Y. 2008-09 DATED 23-05- 2012 IN THE CASE OF ITO V. M/S. SHREE ODHAVRAM TRANSPORT AND ITA NO.1717/AHD/2010 DATED 31-08-2010 FOR A.Y. 2007-08, IN THE CASE OF ACIT V. M/S. SHREE PRAMUCH TRANSPORT CO. ON THE CONTRARY, LD. SR-DR SHRI D.K. SINGH APPEARED ON BEHALF OF REVENUE VEHEMENTLY SUPP ORTED THE ORDERS OF AUTHORITIES BELOW. HE SUBMITTED THAT THE FACTS OF T HE PRESENT CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE ORDER AS RELI ED BY THE LD. COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT IN THE CASE IN HAND, FO RM NO.15J WAS FURNISHED BY THE ASSESSEE WHEN THE ASSESSING OFFICER HAD CONF RONTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HE SUBMITTED THAT THE AS SESSEE WAS REQUIRED TO FURNISH FORM NO. 15J ON 30-06-2007 BUT SAME WAS SUB MITTED ON 30-11-2009, AFTER A DELAY OF 2 YEARS AND 5 MONTHS. HENCE, THE A CTION OF THE AUTHORITIES BELOW IS JUSTIFIED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND THE ORDERS RELIED BY LD. CO UNSEL FOR THE ASSESSEE. IT IS NOT DISPUTED THAT THE VEHICLE AND EQUIPMENT HIRE EX PENSES ARE SUBJECT TO DEDUCTION OF TAX U/S. 194C OF THE ACT. HOWEVER, SUC H LIABILITY OF DEDUCTING TAX IS EXEMPTED IF THE ASSESSEE FURNISHES REQUISITE FOR M 15J AS PER THE STATUTORY PROVISIONS FOR AVAILING THIS EXEMPTION OF NON-DEDUC TION OF TAX. IN THIS CASE THIS FORM WAS REQUIRED TO BE FURNISHED ON OR BEFORE 30-0 6-2007 BUT ASSESSEE FURNISHED IT ON 30-11-2009 AFTER DELAY OF TWO AND H ALF YEARS. NO EXPLANATION HAS BEEN FURNISHED OF SUCH DELAY. HOWEVER, IN ITA N O.2228/AHD/2009, RENDERED IN THE CASE OF VALIBBHAI K MANKAD V. DCIT (OSD) DATED 29-04-2011 AS RELIED BY LD. COUNSEL FOR THE ASSESSEE THERE WAS ALSO DELAY OF NEAR ABOUT ONE YEAR AND EIGHT MONTHS, WHEREIN THE HONBLE CO-O RDINATE BENCH FOLLOWING THE ORDER OF HONBLE CO-ORDINATE BENCH IN ITA NO. 1 717/AHD/2010 (SUPRA), ALLOWED THE CLAIM OF ASSESSEE THE DELAY IN FURNISHI NG OF PRESCRIBED FORM-15J IS HELD TO BE A PROCEDURAL IRREGULARITY AND IT HAS BEEN HELD BY THE HONBLE CO- ORDINATE BENCH IN ITA NO. 1717/AHD/2010 (SUPRA), THAT IN CASE OF PROCEDURAL ITA NO.1145/AHD/2011 A.Y. 2007-08 BABUBHAI D PATEL V. ITO WD-6(1) SRT PAGE 4 IRREGULARITIES, THE ASSESSEE CANNOT BE PUT TO UNNEC ESSARILY HARDSHIP IN THE MATTER AND THAT TO WHEN CERTAIN EXEMPTION HAS BEEN GIVEN TO THE ASSESSEE IN SECTION PROVISO TO SECTION 194C OF THE ACT. SINCE T HERE IS SUFFICIENT COMPLIANCE OF THE PROVISIONS OF LAW, THEREFORE LD. CIT(A) WAS JUSTIFIED IN DELETING THE SAME. IN THIS VIEW OF THE MATTER, FOLL OWING THE ORDERS OF HONBLE CO-ORDINATE BENCH OF THIS TRIBUNAL RENDERED IN THE CASE OF M/S SHREE ODHAVRAM TRANSPORT (SUPRA) IN THE CASE OF VALIBBHAI K MANKAD (SUPRA) THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 6. NEXT GROUND NO.3 IS AGAINST THE CONFIRMATION OF INTEREST CHARGE U/S. 234B OF THE ACT WHICH IS BEING CONSEQUENTIAL IN NAT URE AND DOES NOT REQUIRE ANY ADJUDICATION. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K.GARODIA) (KUL BHARAT) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, *DKP !' #- 14/12/2012 )*+ , --. --. --. --. /. /. /. /. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '+'-2 3 / CONCERNED CIT 4. 3- / CIT (A) 5. .56 ---2, -2 , )*+ / DR, ITAT, AHMEDABAD 6. 69: ;< / GUARD FILE. BY ORDER/ , /TRUE COPY/ =/) '> -2 , )*+ , ITA NO.1145/AHD/2011 A.Y. 2007-08 BABUBHAI D PATEL V. ITO WD-6(1) SRT PAGE 5 STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 06/12 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 06/12 4) DATE OF CORRECTION 07/12 5) DATE OF FURTHER CORRECTION - - 6) DATE OF INITIAL SIGN BY MEMBERS 11/12 7) ORDER UPLOADED ON 14/12 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 14/12