The ITO, Ward-1, Bharuch V. M/s. Shree Gayatri Tourist Bus Service, Bharuch

ITA 1526/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9381 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-08-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 14-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: C K MISHRA
• Keywords: TDS
• Section: 40(a)(ia)

Judgement Text

IN THE INC O ME TAX APPELLATE TRIBUNAL, D - BENCH,AHMEDABAD . BEFORE : SHRI T.K.SHARMA, JUDICIAL MEMBER , AND SHRI N.S.SAINI, ACCOU NTANT MEMBER. ITA NO. 1526/AHD/2009 (ASSESSMENT YEAR 2005 - 06) INCOME - TAX OFFICER, WARD 1, BANK OF BARODA BUILDING, STATION ROAD, BHARUCH. VERSUS M/S.SHREE GAYATRI TOURIST BUSE SERVICE, A - 22, FIRST FLOOR, SEVASHRAM SHOPING CENTRE, BHARUCH PAN AAHFS 2470 D (APPELLANT) (RESPONDENT) FOR THE APPELLANT: NONE (WRITTEN SUBMISSION) FOR THE RESPONDENT SHRI C.K.MISHRA, DR ORDER SH RI T.K.SHARMA, JUDICIAL MEMBER : REVENUE HAS FILED THIS APPEAL AGAINST THE ORDER DT. 5.3.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) VI, BARODA CANCELLING PENALTY OF RS.8,52,683 LEVIED U/S.271(1)(C) OF THE INCOME - TAX ACT,1961 FOR THE AS SESSMENT YEAR 2005 - 06. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE BUT THE ASSESSEE HAS FILED WRITTEN SUBMISSION. THE CASE WAS, THEREFORE, TAKEN UP EXPARTE QUA ASSESSEE. THE LEARNED DR WAS HEARD AND THE WRITTEN SUBMISSION CONSIDERED. 3. THE FACTS LEADING T O LEVYING THE IMPUGNED PENALTY IS THAT IN THE ASSESSMENT MADE U/S.143(3) OF THE ACT FOR THE YEAR UNDER CONSIDERATION RS.,23,30,214 WAS DISALLOWED AND ADDED TO THE TOTAL INCOME U/S.40(A)(IA) OF THE ACT. ON THE GROUND THAT THE ASSESSEE HAD DELIBERATELY NOT DOEPOSITED THE TDS IN GOVT. ACCOUNT AND THE ADDITION AMOUNTED TO FURNISHING OF INACCURATE PARTICULARS OF INCOME, THE ASSESSING OFFICER LEVIED PENALTY OF RS.8,52,683 U/S.271(1)(C) OF THE ACT. IN APPEAL, THE LEARNED CIT(A) HAS CANCELLED THE SAID PENALTY . 4. HEARD THELEARNED DR AND CONSIDERED THE WRITTEN SUBMISSION OF THE ASSESSEE. THE LEARNED CIT(A) IN HIS ORDER CATEGORICALLY OBSERVED THAT THE ASSESSEE HAS D EDUCTED TDS ON PAYMENTS OF RS.. 23,30,214/ - BUT DEPOSITED THE TDS IN GOVT. ACCOUNT ON 29.06.2005 I.E. B EYOND THE DUE DATE FOR MAKING PAYMENT TO GOVT. HE FURTHER OBSERVED THAT BY VIRTUE OF RESPECTIVE AMENDMENT IN SECTION 40(A)(IA) BY FINANCE ACT, 2008 W.E.F. 01.04.2005, THE PAYMENT OF 2 RS.80,000/ - MADE IN MARCH, 2005 WAS ALLOWABLE AS THE TDS WAS DEPOSITED PRI OR TO THE FILING OF THE RETURN. FURTHERMORE, THE BALANCE EXPENDITURE IS ALLOWABLE IN THE YEAR IN WHICH THE TAXES HAVE BEEN PAID I.E. FOR A.Y. 2006 - 07. ALL SUCH FACTS AND DETAILS WERE BEFORE THE A.O. FURTHER THE PAYMENT MADE IN MARCH,2005 WAS ALLOWABLE AS T HE TDS WAS DEPOSITED PRIOR TO THE FILING OF THE RETURN AND THE BALANCE EXPENDITURE IS ALLOWABLE IN THE YEAR IN WHICH THE TAXES HAVE BEEN PAID I.E., FOR A.Y. 2006 - 07. THE LEARNED DR COULD NOT CONTROVERT THE ABOVE FINDINGS OF THE LEARNED CIT(A). FROM THE ABO VE, IT IS THUS SEEN THAT THE DISALLOWANCE/ADDITION HAS BEEN MADE BASED ON THE AMENDMENT IN SECTION 40(A)(IA) OF THE ACT REFERRED TO ABOVE. IT IS A TECHNICAL DISALLOWANCE. THE ASSESSEE HAVING FURNISHED ALL THE PARTICULARS IT CANNOT BE SAID THAT THE APPELLAN T HAD CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME AS THE EXPENDITURE WAS NOT FOUND TO BE BOGUS. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE LEARNED CIT(A) HAS PASSED AN W ELL - REASONED ORDER AND HAS RIGHTLY CANCELLED THE IMPUGNED PENALTY LEVIED U/S.271(1)(C) OF THE ACT . WE, THEREFORE, UPHOLD THE SAME AND DISMISS THE APPEAL OF THE REVENUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 21.08.09 SD/ - SD/ - ( N.S.SAINI) ACCOUNTANT MEMBER. (T.K.SHARMA) JUDICIAL MEMBER DATE: 21.8.09 (H.K.PADHEE) SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. TH E ASSESSEE 2. THE ASSESSING OFFICER 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. THE DR, AHMEDABAD 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, DEPUTY.REGISTRAR.