M/s. Ghosh Brothers Electronics Pvt. Ltd., Guwahati V. Deputy Commissioner of Income Tax, Circle - 3, Guwahati

ITA 128/GTY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6424 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 27-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDEEP SENGUPTA J
• Keywords: Depreciation; TDS
• Section: 143(3); 40(a)(ia); 201(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 128 / GAU / 2017 ASSESSMENT YEAR :2010-11 M/S GHOSH BROTHERS ELECTONICS PVT. LTD., LACHIT NAGAR, G.S. ROAD, GUWAHATI-781005 [ PAN NO.AABCG 7254 Q ] V/S . DCIT, CIRCLE-3 AAYAKAR BHAWAN, 7 TH FLOOR, G.S. ROAD, GUWAHATI-78105 /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHRI SANDEEP SENGUPTA, JCIT-DR /DATE OF HEARING 05-07-2019 /DATE OF PRONOUNCEMENT 31 -07-2019 / O R D E R PER BENCH:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 ARISES AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS)-2, GUWAHATIS ORDER DATED 16.03.201 PASSED IN CASE NO.GUWA-86/2014-15, INVOLVING PROCEE DINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. CASE CALLED TWICE. NONE APPEARS AT THE ASSESSEE BEH EST. THE REGISTRY HAS ALREADY SENT RPAD NOTICE FOR TODAYS HEARING. I T IS ACCORDINGLY PROCEEDED EX PARTE AGAINST THE ASSESSEE. ITA NO.128/GAU/2017 A.Y.2010-11 M/S GHOSH BROTHERS ELECTRONICS P. LTD. VS. DCIT, CIR-3, GUWA PAGE 2 2. IT EMERGES DURING THE COURSE OF HEARING THAT ASS ESSEES INSTANT APPEAL SUFFERS FROM 403 DAYS DELAY IN FILING. IT HAS PLACE D ON ITS CONDONATION PETITION ATTRIBUTING THEREOF TO THE FACT THAT ITS IN-CHARGE ACCOUNTANT HAD RESIGNED FROM SERVICE. THE REVENUE IS FAIR ENOUGH IN NOT DISPUTIN G CORRECTNESS OF THE SAID SOLEMN AVERMENTS. WE THEREFORE CONDONE THE IMPUGNED DELAY OF 403 DAYS IN FILING AS NEITHER INTENTIONAL NOR DELIBERATE BUT ON ACCOUNT OF CIRCUMSTANCES BEYOND ASSESSEES CONTROL. THIS APPEAL IS NOW TAKEN UP FOR ADJUDICATION ON MERITS. 3. WE NOW COME TO ASSESSEES FIRST SUBSTANTIVE GROU ND ON MERITS CHALLENGING CORRECTNESS OF THE INTEREST DISALLOWANC E AMOUNTING TO RS.37,67,460/- PAID AND CREDITED TO TATA MOTOR FINA NCE LTD. (TMFL FOR SHORT) WITHOUT DEDUCTING TDS IS IN DISPUTE ABOUT THE ASSES SEE HAD NOT DEDUCTED TDS SO FAR AS THE IMPUGNED PAYMENT ARE CONCERNED. T HE LEGISLATURE HAS INCORPORATED U/.S 40(A)(IA) SECOND PROVISO WITH EFF ECT FROM 01.04.2013 THAT THE IMPUGNED DISALLOWANCE PROVISION IS NOT ATTRACTED IF THE ASSESSEE / DEDUCTOR IS NOT THE ASSESSEE IN DEFAULT GOING BY CORRESPONDING PROVISO IN SEC. 201(1) OF THE ACT. VARIOUS JUDICIAL PRECEDENTS I.E. CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD. (2015) 377 ITR 635 (DEL) AND RAJIV KUMAR AGARWAL VS. ACIT (2014) 149 ITD 363 (AGRA) HOLD THE SAME TO BE HAVING RETROSPEC TIVE EFFECT BEING CURATIVE IN NATURE. WE THEREFORE RESTORE THE ISSUE BACK TO THE ASSESSING OFFICER TO CARRY OUT NECESSARY FACTUAL VERIFICATION ABOUT THE ASSESSEES PAYEE(S) HAVING GOT ASSESSED THE INTEREST INCOME. THIS ASSESSEES F ORMER SUBSTANTIVE GROUND IS TREATED AS ACCEPTED FOR STATISTICAL PURPOSES. 4. NEXT COMES DEPRECIATION ALLOWANCE OF RS.98,86,64 0/- ON ACCOUNT OF THE CORRESPONDING DETAILS BEFORE THE LOWER AUTHORITIES REGARDING THIS CORRESPONDING BLOCK OF ASSETS. IT IS EVIDENT FROM A PERUSAL OF PARA-8.10 TO 8.15 IN ASSESSMENT ORDER DATED 28.03.2013 THAT ASSESSEE WAS FOUND TO HAVE CLAIMED HIGHER RATE OF DEPRECIATION THAN THAT ADMIS SIBLE IN THE DEPRECIATION SCHEDULE. THERE IS NO REBUTTAL IN THE CASE FILE QUA THE ADMISSIBLE DEPRECIATION ITA NO.128/GAU/2017 A.Y.2010-11 M/S GHOSH BROTHERS ELECTRONICS P. LTD. VS. DCIT, CIR-3, GUWA PAGE 3 RATE OF ALL THESE ASSETS. WE THEREFORE DECLINE THE ASSESSEES INSTANT LATTER SUBSTANTIVE GROUND. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN ACCORDANCE WITH THE RULE 34(3) OF THE ITAT RULES BY PUTTING ON NOTICE BOARD ON 31/07/2019 SD/- SD/- ( #) (%& #) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP '- 31 / 07 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S GHOSH BROTHERS ELECTRONICS PVT. LTD. , LACHI NAGAR, G.S. ROAD, GUWAHATI- 781005 2. /RESPONDENT-DCIT, CRICLE-3, AYAKAR BHAWAN, 7 TH FL, G.S. ROAD, GUWA-781005 3. 2 3 8 / CONCERNED CIT GUWAHATI 4. 3- / CIT (A) GUWAHATI 5. ; &&2, 2, 8 / DR, ITAT, GUWAHATI 6. A / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY (ON TOUR) 2,