AMOL ANTHONY PEREIRA, VASAI V. ITO WD 4(1), THANE

ITA 1559/MUM/2016

• Counselvise Citation: [2018] 130 COUNSELVISE.COM (IT) 0023 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VDHYADHAR
• Assessee Lawyers: SANDIP KEJARIWAL
• Keywords: Opportunity of being heard
• Section: 143(3)

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -GBENCH MUMBAI , . . , BEFORE S/SH.RAJENDRA,ACCOUNTANT MEMBER AND C. N. PRASAD,JUDICIAL MEMBER ./I.T.A./1559/MUM/2016, /ASSESSMENT YEAR: 2010-11 AMOL ANTHONY PEREIRA SHOP NO.4,5,6,, GR. GLOOR, BLDG. NO. 21-B AMOL NAGAR, NAIGAON (W), VASAI DIST-PALGHAR. PAN:AMCPP 5236 D VS. INCOME TAX OFFICER-, WARD-4(1) THANE ( /APPELLANT) ( / RESPONDENT) / REVENUE BY: SHRI V. VDHYADHAR /ASSESSEE BY: SHRI SANDIP KEJARIWAL / DATE OF HEARING: 13/11/2017 / DATE OF PRONOUNCEMENT: 05/01/2018 , / PER RAJENDRA A.M. - CHALLENGING THE ORDER DATED 16/11/2015 OF THE CIT( A)- 3,THANE,THE ASSESSEE HAS FILED PRESENT APPEAL.THE ASSESSEE IS A BUILDER AND DEVELO PER AND IS CARRYING OUT BUSINESS ACTIVITY IN THE NAME OF M/S. PEREIRA BUILDERS AND M/S. AMOL CON STRUCTION. IT FILED ITS RETURN OF INCOME DECLARING INCOME AT RS.10,21,360/-. THE ASSESSING O FFICER (A.O) COMPLETED ASSESSMENT U/S. 143(3) OF THE ACT, ON 14/02/2013, DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS.23,60,910/-. 2. THE EFFECTIVE GROUND OF APPEAL IS ABOUT UPHOLDING THE DISALLOWANCE OF RS.13.39 LAKHS,U/S. 40(A)(IA)OF THE ACT.BEFORE US,AUTHORISED REPRESENTA TIVE(AR) STATED THAT THE ISSUE IS COVERED BY THE ORDER OF THE TRIBUNAL,DATED 19/09/2016 (ITA/ NO/6237/MUM/2012 FOR AY.2009- 10).THE DEPARTMENTAL. REPRESNETATIVE (DR) STATED T HAT MATTER COULD BE DECIDED ON MERITS. 3. WE FIND THAT WHILE DECIDING THE APPEAL,FILED BY TH E AO,FOR THE AY. 2009-10(SUPRA),THE TRIBUNAL HAS DELIBERATED UPON THE IDENTICAL ISSUE A S UNDER :- ..3. AGGRIEVED, THE ASSESSEE CHALLENGED THE ASSES SMENT ORDER BEFORE THE FIRST APPELLATE AUTHORITY. THE APPEAL OF THE ASSESSEE WAS PARTLY AL LOWED. THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE IMPUGNED ORDER PASSED BY THE L D. CIT{A) PASSED IN THE FIRST APPEAL ON THE FOLLOWING EFFECTIVE GROUNDS:- '1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE AND I N LAW THE (IT (A)-II, THANE HAS ERRED IN DELETING THE ADDITION OF RS. 38,70,394/-MADE U/S 40 (A)(IA) OF THE I.T. ACT BEING FAILURE ON THE PAN OF THE ASSESSEE TO DEDUCT TAX. AT SOURCE AS PER THE PROVISIONS OF SECTION 194 C OF THE IT ACT, 1961. XXXXX 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GON E THROUGH THE MATERIAL PLACED BEFORE US BY THE PARTIES.THE ONLY ISSUE IN DISPUTE IS WITH RE GARD TO DISALLOWANCE ON ACCOUNT LABOUR CHARGES, TRANSPORT CHARGES AND PAINTING CHARGES AFO RESAID MADE BY THE AO BY INVOKING SECTION 40(A)(IA) OF THE ACT WHICH HAS SINCE BEEN D ELETED BY THE CIT(A). WE NOTICE THAT THE COORDINATE BENCH HAS RESTORED THE SIMILAR MATTER TO THE FILE OF AO TO ADJUDICATE THE ISSUE BY [ I.T.A./1559/MUM/201609-10)] 2 FOLLOWING THE DECISION OF THE PUNE BENCH OF THE TRI BUNAL IN ITO VS. SHRI. CHANDRAKANT J. MAN DALE (SUPRA) HOLDING AS UNDER:- '5. AT THE TIME OF HEARING, BOTH THE PARTIES POINTE D OUT THAT THE SIMILAR CONTROVERSY HAS BEEN DECIDED BY THE PUNE BENCH OF THE TRIBUNAL IN T HE CASE OF ITA VS. MIS GAURIMAL MAHAJAN & SONS VIDE ITA NO.1852/PN/2012 DATED 06.01 .2014 AND PLACED THE RELIANCE IN THIS REGARD. THE FOLLOWING DISCUSSION IN THE ORDER OF THE TRIBUNAL IS RELEVANT:- '8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS BROUG HT TO OUR NOTICE BY BOTH THE SIDES. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE H AS NOT DEDUCTED TDS ON AN AMOUNT OFRS. 58,81,847/- FOR WHICH THE ASSESSING OFFICER APPLYIN G THE PROVISIONS OF SECTION 40(A)(IA) MADE ADDITION OF THE ABOVE AMOUNT. WE FIND THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT PROVISIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE SINCE NO AMOUNT IS PAYABLE AT THE END OF THE YEAR. WHILE DOING SO, HE RELIED UPON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF MERILYN SHIPPING AND TRANSPORT (SUPRA). THE COORDINATE BENCH IN THE CASE OF VINAY ASHWINKUMAR JONEJA (SUPRA) HAS ALREADY TAKEN A VIEW THAT PROVISIONS OF SECTION 40(A)(IA) ARE APPLICABLE EVEN IF NO AMOUNT IS PAYABLE AT THE END OF THE YEAR. THEREF ORE, THE ORDER OF THE CIT(A) HAS TO BE REVERSED.' 6. AFTER HAVING REVERSED THE ORDER OF THE CIT(A), T HE TRIBUNAL IN THE CASE OF MIS GAUNMAL MAHAJAN & SONS (SUPRA) DEALT WITH ANOTHER ARGUMENT OF THE ASSESSEE TO THE EFFECT THAT THE SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT INSE RTED BY THE FINANCE ACT, 2012 W.E.F. 01.04.2013 BE APPLIED RETROSPECTIVELY. NOTABLY, THE SAID SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT PRESCRIBES THAT THE DISALLOWANCE U/S 40( A)(IA) OF THE ACT COULD NOT BE MADE IF AN ASSESSEE IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SECTION 201 (1) OF THE ACT. THE TRIBUNAL DEALT WITH THE PLEA OF THE ASSESSEE THAT SUCH AMENDMENT WAS INTENDED TO ELIMINATE UNDUE HARDSHIPS TO THE TAXPAY ERS AND THEREFORE IT SHOULD BE HELD AS RETROSPECTIVE IN NATURE. ON THIS ASPECT, THE TRIBUN AL IN THE CASE OF MIS GAURIMAL MAHAJAN & SONS (SUPRA) REFERRED TO THE DECISION OF THE COCH IN BENCH OF THE TRIBUNAL IN THE CASE OF ANTONY D. MUNDACKAL VS. ACIT VIDE ITA NO. 38/COCH/2 013 DATED 29.11.2013 AND HELD AS UNDER:- XXXXX 7. SINCE THE ISSUE INVOLVED IN THE PRESENT CASE IS IDENTICAL TO THE ISSUE INVOLVED IN THE CASE OF IN ITO VS. SHRI. CHANDRAKANT J. MANDALE (SUPRA) AND THE COORDINATE BENCH HAS RESTORED THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION, WE RESPECTFULLY FOLLOWING THE DECISION OF THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL RE NDERED IN ITO VS. SHRI. CHANDRAKANT J. MANDALE (SUPRA), RESTORE THE MATTER BACK TO THE FIL E OF THE A.O TO ADJUDICATE THE ISSUE AFRESH IN ACCORDANCE WITH THE DIRECTIONS OF TRIBUNA L AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE RESULT APPEAL FILED BY THE REVENUE FOR THE A SST. YEAR 2009-10 IS ALLOWED FOR STATISTICAL PURPOSES . RESPECTFULLY FOLLOWING THE ABOVE, ORDER OF THE TRIB UNAL,WE DECIDE ACCORDINGLY. AS A RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05 TH JANUARY, 2018. 05 , 2018 SD/- SD/- ( . . / C.N.PRASAD ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 05 .01.2018. JV.SR.PS. [ I.T.A./1559/MUM/201609-10)] 3 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR G BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.