Sanjay Munnalal Agarwal, Pune V. DCIT, Cir.2, Pune, Pune

ITA 148/PUN/2012

• Counselvise Citation: 14824514 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 23-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Section: 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.148/PN/2012 A.Y. 2008-09 SANJAY MUNNALAL AGARWAL, 112/3, MOTIMAHAL BUILDING, ALANDI ROAD, YERAWADA, PUNE PAN: ADEPA1653Q APPELLANT VS. DY.CIT, CIRCLE-2, PUNE RESPONDENT APPELLANT BY : SHRI SHARAD VAZE RESPONDENT BY : SHRI A.K. MODI DATE OF HEARING: 28.11.2013 DATE OF ORDER : 29.11.2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-II, (SHORT C IT(A)-II) PUNE, DATED 27.10.2011 FOR A.Y. 2008-09 ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C.I.T. (A)-II, PUNE, HAS ERRED IN MAKING BIFURCATION IN 'PAYMENT TO CONTRACTOR' AND 'PAYMENT TO SUB-CONTRACTOR'. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C.I.T. (A)-II, PUNE, HAS ERRED IN RETAINING AND CONFIRMING THE DISALLOWANCE OF EXPENSES AMOUNTI NG TO RS. 31,28,9427- MADE BY THE ASSESSING OFFICER. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED C.I.T. (A)-II, PUNE, HAS ERRED IN NOT CONSIDERING THE PROOFS OF TDS PAYMENT PRODUCED DURING THE APPEAL PROCEEDINGS. 2 4. THE APPELLANT CRAVES TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. THE ASSESSEE IS AN INDIVIDUAL AND IS PROPRIETOR OF M/S GARG CONSTRUCTIONS. THE ASSESSEE WAS CARRYING THE BUSINE SS OF BUILDER AND CONTRACTOR. THE ASSESSING OFFICER HAS DISALLOWE D THE FOLLOWING EXPENSES ON ACCOUNT OF NON-DEDUCTION OF T DS AS PER THE PROVISIONS OF SECTIONS 194C AND 40(A)(IA), WHIC H TOTALED TO RS. 23,93,941/-. THE SAID DISALLOWANCES COMPRISED OF RS . 7,75,721/- ON ACCOUNT OF LABOUR CHARGES, RS. 20,03,221/- ON AC COUNT OF TRANSPORTATION CHARGES AND RS.3,50,000/- ON ACCOUNT OF MACHINERY HIRE CHARGES. THUS, THE TOTAL PAYMENTS EL IGIBLE FOR DEDUCTION U/S 194C WAS WORKED AT RS. 31,28,941/- BY THE ASSESSING OFFICER. ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD DEDUCTED TDS OF RS. 16,470/- ONLY AS AGAINST RS .70,088/-, WHICH WAS REQUIRED TO BE DEDUCTED. THUS, IT WAS CO NCLUDED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAD DEDUCTE D TDS ON PAYMENT OF EXPENSES ELIGIBLE FOR TDS AT RS. 7,35,00 0/- AND, THEREFORE, AFTER GIVING CREDIT FOR THE TOTAL AMOUNT HAS MADE THE DISALLOWANCE OF RS. 23,93,941/-, WHICH HAS BEEN CON FIRMED BY CIT(A). 2.1 BEFORE US, THE STAND OF THE ASSESSEE HAS BEEN T HAT CIT(A) ERRED IN MAKING BIFURCATION IN PAYMENT MADE TO CONT RACTOR AND SUB-CONTRACTOR. THE STAND OF THE ASSESSEE HAS BEEN THAT IT IS NOT A CASE OF NO DEDUCTION BUT A CASE OF SHORT DEDUCTIO N OF TDS. LEARNED AUTHORIZED REPRESENTATIVE ASKED FOR OPPORTU NITY REGARDING PRODUCTION OF CHALLANS OF DEDUCTION OF TD S ON OTHER DETAILS IN THIS REGARD TO ASCERTAIN THE FACT WHETHE R IT IS A CASE OF SHORT DEDUCTION OF TDS OR NO DEDUCTION OF TDS. ACC ORDINGLY, HE REQUESTED FOR GIVING OPPORTUNITY FOR THE SAME, WHIC H WAS NOT OBJECTED BY LEARNED DEPARTMENTAL REPRESENTATIVE. S O, IN THE INTEREST OF JUSTICE, WE RESTORE THIS ISSUE ON THE P OINT OF APPLICATION OF PROVISIONS OF SECTION 194C R.W.S.40( A)(IA). 3 ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE A S PER FACT AND LAW AFTER PROVIDING DUE OPPORTUNITY OF HEARING. SI NCE, WE ARE RESTORING THE MATTER ON PRELIMINARY ISSUE, WE ARE R EFRAINING TO COMMENT ON THE MERIT OF THE ISSUE AT HAND. 3. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOW ED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 29 TH OF NOVEMBER, 2013. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 29 TH NOVEMBER 2013 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-II, PUNE 4) THE CIT-II, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE