Shri Rupal Paresh Amin, Vadodara V. The Asstt. Commissioner of Income Tax, Ward-3(1)(5), Vadodara

ITA 1362/AHD/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5368 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 23-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Non-deduction of tax; Condonation of delay
• Section: 143(3); 40(a)(ia); 194C

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 1362/AHD/2016 ( / ASSESSMENT YEAR: 2005-06) RUPAL PARESH AMIN PROP OF SHREEJI TRANSPORT, 46, KARELIBAUG HOUSING SOCIETY, KARELIBAUG, VADODARA- 390018 / VS. ITO WARD-3(1)(5), 5 TH FLOOR, AAYAKAR BHAWAN, RACE COURSE CIRCLE, VADODARA- 390018 ./ ./PAN/GIR NO. : ADB PA4 236 C ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SAKAR SHARMA, AR / RESPONDENT BY: SHRI MUDIT NAGPAL, SR. DR ! /DATE OF HEARING 07/08/2019 '# ! / DATE OF PRONOUNCEMENT 16/09/2019 $% /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2005-06, ARISE FROM ORDER OF THE CIT(A)-1, VADODARA DATED 29.01.2016, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE SOLITARY GROUND OF APPEAL FILED BY THE ASSESS EE IS AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING ADDITION OF RS. 54,55,131/- U/S. 40(A)(IA) OF THE ACT IN RESPECT OF NON-DEDUCTION OF TAX ON TRANSPORT PAYMEN T. 3. THERE WAS A DELAY OF 38 DAYS IN FILING THIS INSTA NT APPEAL BY THE ASSESSEE. IN THIS REGARD, THE ASSESSEE HAS FILED AN AFFIDAVIT DA TED 23.05.2016 EXPLAINING THAT THERE WAS DELAY IN FILING THE APPEAL BY 38 DAYS ON ACCOUNT OF RESHUFFLING OF HIS ITA NO. 1362/AHD/2016 A.Y. 2005-06 2 OFFICE-CUM-RESIDENCE IN THE MONTH OF APRIL 2016. T HE ASSESSEE EXPLAINED THAT THERE WAS MIXING OF VARIOUS FILES DUE TO RESHUFFLIN G WHICH RESULTED IN DELAY IN FILING THE INSTANT APPEAL. THEREFORE, THE ASSESSEE HAS REQUESTED FOR CONDONATION OF DELAY IN FILING THE APPEAL FOR THE REASON STATED AB OVE. 4. WE HAVE HEARD THE RIVAL CONTENTION AND AFTER CON SIDERING THE ABOVE REASONS IT APPEARS TO BE A BONA FIDE CAUSE FOR FILING THE A PPEAL LATE BY 38 DAYS. THEREFORE, WE CONDONE THE DELAY IN FILING THIS APPEAL BY THE A SSESSEE. 5. THE BRIEF FACT ON THE ISSUE CONTESTED IN THE GROU ND OF APPEAL IS THAT ASSESSMENT U/S. 143(3) OF THE ACT WAS FINALIZED ON 28.12.2007. THE AO HAS OBSERVED THAT ASSESSEE HAS MADE PAYMENT OF TRANSPOR TATION EXPENSES AND AGGREGATE OF SUCH PAYMENT WAS EXCEEDING RS. 50,000/- THEREFOR E, THE AO HAD DISALLOWED AN AMOUNT OF RS. 54,72,131/- AS PER THE PROVISION OF S EC. 40(A)(IA) OF THE ACT FOR NOT DEDUCTING TAX U/S. 194C IN RESPECT OF TRANSPORT PAY MENT. 6. AGGRIEVED ASSESSEE HAS FILED BEFORE THE LD. CIT(A ). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 7. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US THE LD. COUNSEL CONTENDED THAT THE PERSONS TO WHOM THE PAYMENT OF T RANSPORTATION EXPENSES WERE MADE HAD ALREADY FILED THEIR RETURN OF INCOME AND H AD PAID TAXES ON THE AMOUNTS RECEIVED FROM THE ASSESSEE, THEREFORE, NO DISALLOWA NCE CAN BE MADE U/S. 40(A)(IA) OF THE ACT. IN THIS REGARD, THE LD. COUNSEL HAS PL ACED RELIANCE ON THE DECISION OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF ANSA L LAND TOWNSHIP PVT. LTD. 279 CTR 0384 (DEL.) WHEREIN IT IS HELD THAT SECOND PROVI SO INSERTED TO SEC. 40(A)(IA) BY FINANCE ACT, 2012 HAVING RETROSPECTIVE EFFECT FROM THE DATE WHEN SEC. 40(A)(IA) WAS INSERTED BY FINANCE (NO. 2) ACT, 2004. 8. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. ITA NO. 1362/AHD/2016 A.Y. 2005-06 3 9. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US THE AS SESSEE HAS FILED PAPER BOOK COMPRISING OF COPIES OF DOCUMENT AND INFORMATION PR OVIDED TO THE AO AND LD. CIT(A) DURING THE COURSE OF ASSESSMENT AND APPELLATE PROCEEDING. AS PER THE INFORMATION AND DOCUMENT PLACED IN THE PAPER BOOK T HE ASSESSEE CLAIMED THAT ALL THOSE PERSONS TO WHOM TRANSPORTATION PAYMENT WERE M ADE HAD ALREADY FILED THEIR RETURN OF INCOME AND HAD PAID TAXES ON THE AMOUNTS RECEIVED FROM THE ASSESSEE, THEREFORE, FOLLOWING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF ANSAL LAND TOWNSHIP PVT. LTD. NO DISALLOWANCE U/S. 40(A)(IA) OF THE ACT SHOULD BE MADE IN THE CASE OF THE ASSESSEE. IN THIS REGARD, ON PE RUSAL OF MATERIAL ON RECORD IT IS OBSERVED THAT LOWER AUTHORITIES HAVE NOT DRAWN SPEC IFIC FINDINGS THAT WHETHER THE PERSON TO WHOM THE TRANSPORT PAYMENT WERE MADE HAD ALREADY DISCLOSED THE AMOUNT OF SUCH PAYMENT IN THEIR RETURN OF INCOME AN D PAID TAXES OR NOT. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES WE CONSIDER THAT THE INFORMATION PERTAINING TO THOSE PERSONS TO WHOM THE TRANSPORT PAYMENTS WERE MADE ARE REQUIRED TO BE VERIFIED AND EXAMINED BY TH E AO. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO FOR DECIDING THE I SSUE A FRESH AFTER VERIFICATION OF THE DOCUMENT AND INFORMATION PERTAINING TO THE CLAIM OF THE ASSESSEE THAT THOSE PERSONS HAVE ALREADY PAID TAXES ON THE AMOUNT OF TR ANSPORTATION RECEIPT IN THEIR RETURN OF INCOME. ACCORDINGLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD: DATED 16/09/2019 TANMAY TRUE COPY THIS ORDER PRONOUNCED IN OPEN COURT ON 1 6/09/2019 ITA NO. 1362/AHD/2016 A.Y. 2005-06 4 / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. &' ( / CONCERNED CIT 4. ( - / CIT (A) 5. )*+ ' , ! ' , ,-$&$ / DR, ITAT, AHMEDABAD 6. +. / / GUARD FILE. BY ORDER / $% , 0 / , ! ' , ,-$&$ 1 1.DATE OF DICTATION ON 08.08.2019 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER 09.08.2019 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 16.09.2019 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 16 .09.2019 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR . P.S./P.S 16.09.2019 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.09.2019 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER