Techno Industries, Ahmedabad V. The Dy. Commissioner of Income Tax, Circle-3(2), Ahmedabad

ITA 1451/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5782 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 01-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PRAVIN R SHAH
• Keywords: Depreciation; Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI N. K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI S. S. GODARA, JUDICIAL MEMBER ITA NO. 1451/AHD/2016 (ASSESSMENT YEAR : 2012-13) M/S. TECHNO INDUSTRIES, PLOT NO. 613, PHASE IV, GIDC ESTATE, VATVA, AHMEDABAD APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 3(2), AHMEDABAD RESPONDE NT PAN: AACFT1503D / BY ASSESSEE : SHRI PRAVIN R. SHAH, A.R. / BY REVENUE : SHRI PRASOON KABRA, SR. D.R. /DATE OF HEARING : 22.03.2018 /DATE OF PRONOUNCEMENT : 28.03.2018 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 ARISES FROM THE CIT(A)- 3, AHMEDABADS ORDER DATED 27.04.2016, IN CASE NO. CIT(A)-3/CIR.3(2)/121/15-16, IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 19 61; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES FIRST SUBSTANTIVE GROUND CHALLENG ES BOTH THE LOWER AUTHORITIES ACTION DISALLOWING ITS COMMISSION PAYMENT OF RS.650 00/- & RS.1,15,000/- TO SHRI A. K. MISHRA AND SHRI R. DHANSEKAR; RESPECTIVELY A S DECLINED IN COURSE OF ASSESSMENT AND AFFIRMED IN THE LOWER APPELLATE PROC EEDINGS. LEARNED COUNSEL ITA NO. 1451/AHD/16 [M/S. TECHNO INDUSTRIES VS. DCI T ] A.Y. 2012-13 - 2 - VEHEMENTLY CONTENDS THAT THE ASSESSEE HAS PAID THE RELEVANT SUMS BY ACCOUNT PAYEE CHEQUES AFTER DEDUCTING TDS AND THE SAME TWO PAYEES IN QUESTION HAVE ALSO DECLINED THE VERY SUMS AS THEIR RESPECTIVE INCOME I N THE IMPUGNED ASSESSMENT YEAR. WE FIND NO REASON TO AGREE WITH THE INSTANT ARGUMEN T. IT EMERGES FROM THE CASE RECORD THAT THE ASSESSEE CLAIMED COMMISSION PAYMENT TO TEN PARTIES IN ALL. THE ASSESSING OFFICER DECLINED THE ENTIRE CLAIM. THE C IT(A) OBSERVES FROM PAGE 7 ONWARDS THAT THE ASSESSEE COULD ONLY PROVE ITS BUSI NESS PLAN EXECUTED WITH THIRD PARTIES IN QUESTION IN CASE OF EIGHT PAYEES. HE HA S THEREFORE CONFIRMED THE IMPUGNED DISALLOWANCE IN TWO CASES PAYMENT ONLY WH EREAS THE REMAINING DISALLOWANCE RELEVANT TO THE SAID EIGHT PARTIES STA NDS DELETED. THE FACTUAL POSITION REMAINS THE SAME BEFORE US DURING THE COURSE OF HEA RING. THERE IS NO EVIDENCE FORTHCOMING FROM ASSESSEE SIDE INDICATING RELEVANT SERVICES RENDERED. WE THUS SEE NO REASON TO INTERFERE WITH THE IMPUGNED DISALLOWAN CE. THE SAME IS ACCORDINGLY CONFIRMED. THIS FIRST SUBSTANTIVE GROUND IS THEREF ORE REJECTED. 3. THE ASSESSEES SECOND SUBSTANTIVE GROUND CHALLEN GES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION INVOKING SECTION 40(A)(IA ) DISALLOWANCE OF INTEREST PAYMENT OF RS.33,108/- MADE TO THE NBFC PAYEE M/S. TATA CAPITAL AND FINANCIAL SERVICE LTD. WITHOUT DEDUCTING TDS. LEARNED COUNSE L IS VERY FAIR IN ADMITTING THE FACT THAT OF NON DEDUCTION OF THE RELEVANT TDS. HE THEREAFTER QUOTES THIS TRIBUNALS CO-ORDINATE BENCH DECISION IN RAJIV KUMAR AGARWALS CASE ITA NO.337/AGRA/2013 DECIDED ON 29.05.2014 AS UPHELD IN EXTEMPORE IN HON BLE DELHI HIGH COURTS JUDGMENT IN ANSAL LANDMARK TOWNSHIPS PVT. LTD. CASE 377 ITR 635 (DELHI) THAT THE SECTION 40(A)(IA) 2ND PROVISO INSERTED IN THE ACT V IDE FINANCE (NO.2) ACT, 2012 W.E.F. 01.04.2013 TO THE EFFECT THAT THE IMPUGNED D ISALLOWANCE WOULD NOT COME INTO A PLAY IN A PAYERS/DEDUCTORS CASE IF THE PAYEE IN QUESTION ALREADY ASSESSED TO TAX AND THE FORMER IS NOT AN ASSESSEE IN DEFAULT U/S.20 1(1) OF THE ACT; TO BE CURATIVE HAVING RETROSPECTIVE EFFECT. MR. KABRA FAILS TO DIS PUTE ALL THESE LEGAL DEVELOPMENTS. WE THEREFORE REMIT THE INSTANT ISSUE BACK TO THE AS SESSING OFFICER FOR CARRYING OUT NECESSARY FACTUAL VERIFICATION. THE INSTANT SECOND SUBSTANTIVE GROUND IS TAKEN AS ACCEPTED FOR STATISTICAL PURPOSES. ITA NO. 1451/AHD/16 [M/S. TECHNO INDUSTRIES VS. DCI T ] A.Y. 2012-13 - 3 - 4. THE ASSESSEES THIRD GRIEVANCE IS THAT THE ASSES SING OFFICER AS WELL AS THE CIT(A) HAVE ERRED IN LAW AS WELL AS ON FACTS IN DIS ALLOWING ITS EMPLOYEES SHARE OF PF/ESI AMOUNTING TO RS.31,921/- ON ACCOUNT OF ITS D ELAYED PAYMENT. HE FAILS TO REBUT THE FACT THAT HONBLE JURISDICTIONAL HIGH COU RTS JUDGMENT IN CIT VS. GSRTC 366 ITR 170 (GUJ) HAS ALREADY DECIDED THE VERY ISSU E IN REVENUES FAVOUR. THIS THIRD GROUND IS ACCORDINGLY REJECTED. 5. THIS LEAVES US WITH ASSESSEES FOURTH SUBSTANTIV E GROUND CHALLENGING BOTH THE LOWER AUTHORITIES ACTION DISALLOWING 1/6 TH OF TOTAL EXPENSES OF PETROL AND DEPRECIATION EXPENSES ON CAR CITING PERSONAL USE. LEARNED COUNSEL SUBMITS VERY FAIRLY THAT THE IMPUGNED DISALLOWANCE @ 1/10 LIMITE D IN PRECEDING ASSESSMENT YEAR AS PER THE CIT(A)S ORDER THEREIN. THE REVENUE IS FAIR ENOUGH IN NOT DISPUTING THIS FACTUAL POSITION. WE THEREFORE PARTLY ACCEPT ASSES SEES INSTANT SUBSTANTIVE GROUND TO REDUCE THE IMPUGNED DISALLOWANCE FROM 1/6 TH TO 1/10 TH OF THE EXPENSES IN QUESTION. 6. THIS ASSESSEES APPEAL IS PARTLY ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF MARCH, 2018.] SD/- SD/- ( N. K. BILLAIYA ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD: DATED 28/03/2018 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // . /0