Appeal Details
Counselvise Citation
[2017] 126 COUNSELVISE.COM (IT) 7502 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
3 year(s) 12 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-08-2017
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
30-11-2016
Assessment Year
2009-2010
Appeal Filed On
19-08-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , ! $!%,& ! ' BEFORE SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWAST HY, JM . / ITA NO.1588/PUN/2014 &( ) *) / ASSESSMENT YEAR: 2009-10 THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-9, PUNE. .. APPELLANT VS. SHRI SATISH DAGADU DAREKAR, SURVEY NO.51, LAXMITARA NAGAR, HINJEWADI ROAD, TATHAWADE, PUNE 411 033. PAN: AARPD27F .. RESPONDENT . / ITA NO.1597/PUN/2014 &( ) *) / ASSESSMENT YEAR: 2009-10 SHRI SATISH DAGADU DAREKAR, SURVEY NO.51, LAXMITARA NAGAR, HINJEWADI ROAD, TATHAWADE, PUNE 411 033. PAN: AARPD27F .. APPELLANT VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-9, PUNE. .. RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE DEPARTMENT BY : SMT.NIRUPAMA KOTRU (CIT) DATE OF HEARING : 23-08-2017 DATE OF PRONOUNCEMENT : 31-08-2017 / ORDER PER D.KARAUNAKARA RAO, AM : THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE AND R EVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) -V, PUNE DATED 15.05.2014 FOR THE ASSESSMENT YEAR 2009-10. 2 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS.78,42,000/- OUT OF THE TOTAL ADDITION MADE BY THE LEARNED A.O. OF RS. 7,53,13,650/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTIO N OF HOTEL BUILDING. 2] THE LEARNED CIT(A) ERRED IN PLACING RELIANCE ON THE REPORT OF THE LEARNED DVO WHEREIN HE HAD VALUED THE TOTAL COST OF CONSTRUCTION OF THE HOTEL BUILDING AT RS. 6,58,52,000/- AS AGAINST RS. 5,80,10,000/- DECLARED BY THE ASSESSEE. 3] THE LEARNED CIT(A) ERRED IN NOT GRANTING BENEFIT OF SELF SUPERVISION @ 10% AS AGAINST 5% GRANTED BY THE LEARNED DVO. 3.1] THE ASSESSEE SUBMITS THAT THE VARIOUS REASONS GIVEN BY THE LEARNED CIT(A) FOR REJECTING THE CLAIM OF SELF SUPERVISION @ 10% AS AGAINST 5% GRANTED BY THE DVO ARE NOT CORRECT AND HENCE, THE C LAIM OF THE ASSESSEE SHOULD BE ALLOWED. 4] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE RE WERE SOME DUPLICATION ERRORS IN THE DVOS REPORT AND THE SAME SHOULD HAVE BEEN RECTIFIED IN ORDER TO DETERMINE THE CORRECT COST OF CONSTRUCTION OF THE HOTEL BUILDING. 5] THE ASSESSEE SUBMITS THAT IF THE BENEFIT OF SELF SUPERVISION IS GRANTED, THEN THE DIFFERENCE IN DVOS VALUATION AND THE AMOU NT DECLARED BY THE ASSESSEE IS LESS THAN 10% AND ACCORDINGLY, NO ADDIT ION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HOTEL BUILDING IS WARRANT ED. 3. SIMILARLY, THE GROUNDS RAISED BY THE REVENUE ARE EXTR ACTED AS FOLLOWS: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS RIGHT IN ADOPTING THE REPORT OF THE DVO FULLY WITHOUT ASSIGNING ANY REASON COMPLETELY DISREGARDING ANOTHER AND MORE RELEVANT VALUATION REPORT FOUND AND IMPOUNDED DURING SURVEY, WHICH WAS ALSO ACCEPTED BY THE BANK IN GRANTING LOAN, EVEN WHEN IN LAW REPORT OF D VO IS NOT BINDING BUT IS ONLY ANOTHER PIECE OF INFORMATION AS HELD IN THE DE CISIONS OF HON'BLE HIGH COURT OF KERALA IN THE CASE OF B.INDIRA DEVI VS. CO MMISSIONER OF INCOME TAX REPORTED IN 133 TAXMAN 595(KER) AND HON'BLE HIGH CO URT OF ORISSA IN THE CASE OF HOTEL AMIR VS. CIT REPORTED IN 200 ITR 785 (ORI)?? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS.37, 73,405/- MADE U/S.40(A)(IA) OF THE INCOME TAX ACT, WITHOUT APPREC IATING THE FACT THAT AMENDMENT IN SECTION 40(A)(IA) OF THE I.T.ACT W.E.F . 1.4.2010 IS NOT CLARIFICATORY IN NATURE AND IS NOT APPLICABLE FOR T HE A.Y. UNDER CONSIDERATION? 3 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR 4. BEFORE US, BOTH THE COUNSELS SUBMITTED ALL THE GROUNDS 1 TO 6 RAISED BY THE ASSESSEE AND THE GROUND NO.1 OF THE REVENUES APPEAL REVOLVES AROUND THE COMMON ISSUE RELATING TO THE ADDITION OF RS.7,53,13,650/-. 5. WE SHALL TAKE UP THE SAID COMMON ISSUE FIRST. BRIEFLY S TATED RELEVANT FACTS ARE THAT THE ASSESSEE IS A CONTRACTOR. THERE WA S SURVEY ACTION ON THE ASSESSEE U/S.133A OF THE ACT ON 17.03.2009. ASSESSEE CO NSTRUCTED VARIOUS RESIDENTIAL PROJECTS IN THE PAST IN A LAND LOCATED IN TATA WADE VILLAGE. ON THE SAME LAND, ASSESSEE STARTED CONSTRUCTION OF COMMERC IAL PROPERTY KNOW AS SATISH COMMERCIAL WHICH INCLUDES A HOTEL NAMED SATI SH EXECUTIVE. DURING THE SURVEY ACTION, THE SURVEY TEAM LAID THEIR HAND ON UNSIGNED VALUATION REPORT OF THE SAID HOTEL. ACCORDING TO THE SAID REPORT, THE VALUE OF THE HOTEL IS DETERMINED AT RS.13,83,13,650/- AS ON 12.08.200 8. HOWEVER, AS PER THE BOOKS OF THE ACCOUNTS OF ASSESSEE, THE COST OF THE HOTEL PROJECT IS ONLY RS.5,31,71,597/-. THE GAP BETWEEN THE FIGURES IS SO H UGE. THEREFORE, THE ASSESSEE DISCLOSED ADDITIONAL INCOME OF RS.98,28,403/- AS AN ADDITIONAL INCOME FOR THE A.Y. 2009-10 AGAINST GAP OF RS.7.53 CRORES(ROUNDED OFF). THERE EXISTS THE MANNER OF ESTIMATION FOR ARRIVING AT THAT FIGURE. DURING THE ASSESSMENT PROCEEDINGS ASSESSING OFFICER SIMPLY ADOPTED THE FIGURE OF RS.13,83,13,650/- AS THE COST OF THE HOTEL PROJECT AND REDUCED THE COST AS IN THE BOOKS OF ACCOUNTS RS.5,31,71,5 97/- AND MADE ADDITION OF RS.7,53,13,750/- AFTER GIVING CREDIT TO THE ASSESS EES DISCLOSED AMOUNT OF RS.94,38,403/-. AGGRIEVED WITH THE SAME, THE A SSESSEE FILED AN APPEAL BEFORE THE CIT(A). 6. DURING THE FIRST APPELLATE PROCEEDINGS, ASSESSEE CAME UP WITH THE VALUATION REPORT OF THE DISTRICT VALUATION OFFICER(DVO) ON THE SAID HOTEL 4 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR PROJECT. ACCORDING TO THE DVO, COST OF THE PROJECT IS D ETERMINED AT RS.6,58,52,000/-. THE SAME IS WORKED OUT AFTER GIVING DEDUC TION OF RS.34,65,886/- ON ACCOUNT OF DEDUCTION FOR SELF SUPERVISION AND DIRECT EXECUTION BY SUPPLYING THE MAJOR PARTS OF MATERIAL TO THE LABOUR CONTRACTORS @ 5%. IF THE SAID AMOUNT IS CONSIDERED AFTER DEDUCTING TH E COST AS PER THE BOOKS OF ACCOUNTS RS.5.31 CRORES (ROUNDED OFF), THE DIFFERENC E WORKS OUT TO RS.78,42,000/- [RS.6,58,52,000/- - RS.5,80,10,000/-]. CIT(A) DIRECTED THE AO TO RESTRICT THE ADDITION TO RS.78,42,000/- IN PLACE OF RS.7,53,13,650/-. 7. AGGRIEVED WITH THE ABOVE RELIEF GRANTED BY THE CIT (A) , THE REVENUE IS IN APPEAL WITH GROUNDS MENTIONED ABOVE. FURTHER, ASSESSE E IS AGGRIEVED AGAINST THE ADDITION OF RS.78,42,000/- AND ALSO AGAINST RES TRICTING THE DEDUCTION TOWARDS SELF SUPERVISION TO ONLY 5% INSTEAD OF 1 0% AS ALLOWED IN VARIOUS CASES. THUS, THE ISSUE RAISED IN THE GROUNDS RE VOLVES AROUND THE ABOVE GRIEVANCES OF THE PARTIES. 8. ON THIS ISSUE, LD.COUNSEL FOR THE ASSESSEE FILED A CHART A LONG WITH VARIOUS DECISIONS AND SUGGESTS THAT GRANTING OF DEDUCTION ON ACCOUNT OF SELF SUPERVISION @ 5% IS NOT SUSTAINABLE, IN VIEW OF VARIOUS DE CISIONS TO SUPPORT THE AVAILABILITY OF HIGHER DEDUCTION EXTENDING TO 10% OF THE COST OF THE PROJECT. FURTHER, HE ALSO BROUGHT TO OUR ATTENTION TO THE FACT THAT IF THE DEDUCTION IS GIVEN @ OF 10% OF THE COST OF THE PROJECT, NO ADDITION IS WARRANTED CONSIDERING THE FACT THAT THE REPORT OF THE D VO IS BINDING ON THE REVENUE AUTHORITIES. 5 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR 9. REFERRING TO THE CASE LAWS MENTIONED BY THE LD.DR, LD.C OUNSEL SUBMITTED THE SAME ARE DISTINGUISHABLE ON FACTS. FURTHER, HE SUBMITTED THAT DVO AUTHORITIES ARE BOUND BY THE PWD RATES AND N OT THE CPWD RATES AS DONE BY THE DVO FOR THE PURPOSE OF DETERMINING THE COST OF CONSTR UCTION PROJECT. HE BROUGHT OUT VARIOUS PERMUTATIONS AND COMB INATIONS BY WAY OF FILING A CHART TO SUGGEST THE DIFFERENCES BETWEEN THE DVO REPORT AND THE BOOKS OF ACCOUNTS ON THE ISSUE OF COST OF CONSTRUCTION O F THE HOTEL, IF THE SAME IS WITHIN THE REASONABLE RANGE. IF NO NEGATIVE FIGURES PROVIDED, PWD RATES ARE CONSIDERED FOR VERIFYING THESE FIGURES AND CHAR T AND ALSO FOR APPLYING THE JUDGEMENTS AND VARIOUS DECISIONS OF TRIBUNAL I.E. ITA NO.1203/PN/2005 AND OTHERS DATED 14.05.2012. ONE OF US IS A PARTY IN THIS ORDER WHERE THE DEDUCTION @ 10% WERE FOUND ALLOWABLE CONSIDERING THE EXTENT OF SELF SUPERVISION. FOR THE SAKE OF COMPLETENE SS LD.COUNSEL READ OUT THE CONTENTS OF PARA 20 IN SUPPORT OF ADOPTION OF THE 10%. LD.COUNSEL ALSO SUBMITTED THAT THE JUDGEMENT OF KERALA HIGH COURT IN THE CASE OF B.INDIRA DEVI 133 TAXMAN 597 (KER) IS NOT ON THE ISSUE UNDER DISPUTE TODAY AND IT RELATES TO THE SCOPE OF REFERENCE O F A PROPERTY TO THE DVO U/S.142(2) OF THE ACT. 10. ON THE OTHER HAND, LD.DR. FOR THE REVENUE RELIED HEAVIL Y ON THE ORDER OF THE AO. 11. WE HEARD BOTH THE PARTIES ON THIS ISSUE OF BINDING NA TURE OF THE DVOS REPORT VS. RELIABILITY OF THE UNSIGNED VALUATION REPORT DISCOVERED BY THE SURVEY TEAM DURING THE SURVEY ACTION U/S.133A OF T HE ACT. THE SAID REPORT IS CLAIMED TO HAVE BEEN PREPARED BY THE ASSESSE E WITH INFLATED FIGURES OF RS.13.83 CRORES (ROUNDED OFF) FOR THE PURPOSE OF A VAILING HIGHER 6 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR AMOUNT OF LOAN FACILITY FROM THE FINANCIAL INSTITUTIONS. FURTHER, WE NEED TO DECIDE THE EXTENT OF DEDUCTION WHICH IS RIGHTLY ALLOWABLE T OWARDS THE ASSESSEE IS THE PROJECT IS CONSTRUCTED UNDER HIS SELF S UPERVISION AND PURCHASE AND SUPPLY OF RAW-MATERIAL TO THE CONTRACTORS. 12. IT IS A SETTLED LEGALLY PROPOSED ISSUE THAT THE DVO S REPORT, SINCE THE PROJECT OF THE REFERRAL BY THE ASSESSING OFFICER IS REQUIRED TO BE ADOPTED IN PREFERENCE TO AN UNSIGNED VALUATION REPORT WHICH DOES N OT SHOW THE REAL COST OF CONSTRUCTION AS THE SAME IS MEANT FOR RAISING HIGH ER AMOUNT OF LOANS. HAVING DECIDED THIS ISSUE, NOW THE QUESTION TO BE D ECIDED IS THE EXTENT OF ALLOWABLE DEDUCTION TO THE ASSESSEE TOWARDS TH E SELF SUPERVISION AND DIRECT EXECUTION BY SUPPLYING MAJOR PARTS OF MATERIA L TO THE LABOUR CONTRACTORS. 13. ON THIS ISSUE, THE CASE OF THE ASSESSEE THAT THE DVO REPORT SUFFERS FROM TWO MAJOR DEVIATIONS NAMELY (I) FAILURE TO FOLLOW THE PWD RATES AND (II) FAILURE TO PROVIDE HIGHER RATE OF DEDUCTION TOWARDS SELF SUPERVISION. ON THE OTHER HAND, THE CASE OF THE REVENUE IS THAT THE FIGURES AS PER THE SAID UNSIGNED VALUATION REPORT WHICH SUGGESTS THE COST O F CONSTRUCTION OF THE HOTEL AT RS.13.83 CRORES SHOULD BE ADOPTED. 14. IN OUR VIEW, THERE ARE VARIOUS DECISIONS TO SUPPORT THE ASSESSEES PROPOSITION REVOLVING AROUND THE CLAIM OF DEDUCTION OF 10% O F THE COST OF THE PROJECT AS AGAINST 5% DETERMINED BY THE DVO IN THIS PRESENT APPEAL. AS SUCH, IT IS SUBMISSION OF THE LD.COUNSEL FOR THE ASSESSEE THAT NO ADDITION IS CALLED FOR ON ACCOUNT OF COST OF CONSTRUCTION CO NSIDERING THE VARIOUS PERMUTATIONS AND COMBINATIONS DEPICTED IN THE CHA RT GIVING 7 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR VARIOUS SITUATIONS. IN OUR CONSIDERED OPINION, THESE ISSUES RELATING TO THE ALLOWABILITY OF DEDUCTION TO THE EXTENT OF 10% OF THE COST O F CONSTRUCTION AS DETERMINED BY THE DVO, THE EXISTENCE OF SELF SUPERVISION AN D THE FACT OF EXECUTION OF THE PROJECT UNDER DIRECT SUPERVISION, SUPPLYING TH E MAJOR PARTS OF MATERIAL TO THE LABOUR CONTRACTORS ETC, REQUIRES DIRECT VERIFICATION BY THE AO BEFORE DECIDING THE ALLOWABILITY OF THE HIGHER RATE OF DEDU CTION OVER AND ABOVE 5%, WHICH IS ALLOWED BY THE DVO AT THE TIME OF COMPUTING THE COST OF CONSTRUCTION AT THE HOTEL PROJECT AT RS.6,68,58,52,000/-. THEREFORE, AO IS DIRECTED TO EXAMINE THESE FIGURES AND THE OTHER PERMUTA TIONS AND COMBINATIONS PROVIDED BY THE ASSESSEE IN THE CHART WHICH IS FILED BY THE FIRST TIME. AO SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH THE SET PRINCIPLES OF NATURA L JUSTICE. THUS, ALL THE GROUNDS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PU RPOSES. SIMILARLY, THE GROUND NO.1 RAISED BY THE REVENUE IS DISMISSED. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR T HE STATISTICAL PURPOSES. ITA NO.1588/PUN/2014 FOR A.Y. 2009-10 REVENUES APPE AL: 16. WITH REGARD TO GROUND NO.1 WE HAVE ALREADY DEALT WITH SAME AND APPROVED THE CIT'S DECISION IN DIRECTING AO TO ADOPT THE VALUATION REPORT AS PER THE DVOS REPORT. THEREFORE, THE SAID GROUND NO.1 IS DISMISSED. 17. GROUND NO.2 OF THE REVENUES APPEAL RELATES TO THE ADDITION OF RS.37,73,403/-. ASSESSING OFFICER INVOKED THE PROVISIONS OF SE CTION 40(A)(IA) OF THE ACT IGNORING THE FACT THE SAID SECTION UNDERW ENT AMENDMENT W.E.F 01.04.2010. ASSESSING OFFICER IS OF THE OPINION THAT THE S AID 8 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR AMENDMENT IS NOT CLARIFICATORY IN NATURE AND THEREFORE IT IS NOT APPLICABLE TO THE A.Y. 2009-10 UNDER CONSIDERATION. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) DELETED THE ADDITION AND GRANTED RELIEF TO THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 10 OF HIS ORDER. 18. AFTER HEARING THE PARTIES WE WENT THROUGH THE SAME CONTENTS OF THE SAID PARA AND FIND RELEVANT FOR EXTRACTING THE SAME HERE AS UNDER: 10. GROUND NO.9 TO 12 & 14: THESE GROUNDS PERTAIN TO ADDITION OF RS.37,73,405/- U/S.40(A)(IA) OF INCOME-TAX ACT. THE ISSUE HAS BEEN DISCUSSED IN PA RA 5 OF THE ASSESSMENT ORDER. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER NOTICED THAT THE TDS OF RS.37,73,405/- WAS NOT PAID TO GOVERNMENT ACCOUNT AS STIPULATED IN THE INCOME-TAX ACT AND THE SAME WA S PAID IN OCTOBER 2009. THE ASSESSING OFFICER HAD TABULATED THIS DEFAULT AS UNDER : S.NO. TAN PAN DATE OF PAYMENT OF TDS AMOUNT QUARTER SECTION AMOUNT OF INCOME 1 PNES18353G AARPD2744F 01-OCT-09 Q4 194C 3579335 2 PNES18353G 03-OCT-09 Q4 194J 103143 3 PNES18353G 01-OCT-09 Q3 194C 65927 4 PNES18353G 01-OCT-09 Q3 194J 25000 TOTAL 3773405 ACCORDINGLY, AFTER CONFRONTING THE APPELLANT THE AS SESSING OFFICER MADE ADDITION OF RS.37,73,405/- U/S.40(A)(IA) OF INCOME- TAX ACT. 11. DURING THE CURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS FILED FOLLOWING SUBMISSIONS IN THIS REGARD: 4.1] THE LEARNED A.O. HAS MADE A DISALLOWANCE OF R S.37,73,405/- U/S 40(A)(IA) OF THE ACT. IN THIS YEAR, THE ASSESS EE HAD DEDUCTED TDS ON CERTAIN PAYMENTS AND THE SAME WAS DEPOSITED BEFORE THE DUE DATE OF FILING THE RETURN. ACCORDING TO THE A.O., THE ASSESSEE HAD FAILED TO PAY THE TDS WI THIN THE TIME SPECIFIED US 200. ACCORDINGLY, HE HAS MADE TH E DISALLOWANCE. THE ASSESSEE SUBMITS THAT FOR A.Y.20 09 10, THE DUE DATE OF FILING THE RETURN WAS 31.10.2009. THE CBDT HAD EXTENDED THE DUE DATE OF FILING THE RETURN FOR PUNE TILL 31.10.2009 AND THE COPY OF THE CBDT NOTIFICATION IS ENCLOSED HEREWITH. THE ASSESSEE HAS PAID THE TDS BEFORE 31. 10.2009 AND THE RELEVANT DETAILS ARE OF GIVEN ON PAGE 14 OF THE ASST. 9 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR ORDER. THE ASSESSEE SUBMITS THAT AS THE TDS WAS PA ID BEFORE THE DUE DATE OF FILING THE RETURN NO DISALLOWANCE U/S 40(A)(IA) IS WARRANTED. IN THIS CONTEXT, THE ASSESSEE PLACES RELIANCE ON THE DECISION OF YOUR HONOUR IN THE ASSESSEES OWN C ASE FOR A.Y. 2008-09 WHEREIN YOUR HONOUR HAS ALLOWED THE DISALLO WANCE U/S. 40(A)(IA) CAN BE MADE IF THE TDS IS PAID BEFOR E THE DUE DATE OF FILING THE RETURN. ACCORDINGLY, THE ASSESS EE SUBMITS THAT THE DISALLOWANCE MADE BY THE LEARNED A.O. MAY KINDL Y BE DELETED. 12. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE, IT IS SEEN THAT THE TDS H AS BEEN PAID BEFORE 31.10.2009 WHICH IS DUE DATE OF FILING RETURN OF IN COME. IT IS SEEN THAT IN A.Y. 2008-09 SIMILAR DISALLOWANCE WAS DELETED BY THE UND ERSIGNED. FOR THE SAKE OF CLARITY, PARA 8 & 9 OF THE APPELLATE ORDER OF A. Y. 2008-09 IS REPRODUCED AS UNDER : 8. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. THOUGH IT HAS BEEN HELD BY SPECIAL BENCH OF MUMBAI TRIBUNAL IN CASE OF BHARTI SHIPYARD LTD. VS. DCIT(2011) 132 ITD 53 THAT THE AMENDMENTS MADE BY F INANCE ACT 2010 ARE NOT RETROSPECTIVE, THE POSITION HAS CH ANGED WITH THE JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. VIRGIN CREATIONS IN I TAT NO.302 OF 2011 GA 3200 OF 2011 DATED 23.11.2011. F OLLOWING THIS DECISION HON'BLE PUNE TRIBUNAL IN THE CASE IN ITA NO.373/PN/2009 FOR A.Y.2005-06 IN THE CASE OF ASST T. COMMISSIONER OF INCOME TAX. CIR. 9, PUNE VS. H.A. DE VELOPERS HELD AS UNDER : IN VIEW OF THE ABOVE, FOLLOWING THE JUDGMENT OF HO N'BLE CALCUTTA HIGH COURT IN THE CASE OF VIRGIN CREATIONS (SUPRA) WE HOLD THAT AMENDMENT TO THE PROVISIONS OF SEC. 40(A) (IA) OF THE ACT BY THE FINANCE ACT 2010 IS RETROSPECTIVE FROM 01.04.2005.. ADMITTEDLY IN THE PRESENT CASE T HE ASSESSEE HAD DEPOSITED THE TAX DEDUCTED AT SOURCE O N OR BEFORE THE DUE DATE FOR FILING RETURN OF INCOME U/S 139(1) OF THE ACT AND THEREFORE, WE HOLD THAT THE CIT(A) WAS JUST IFIED IN DELETING THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. ACCORDINGLY, WE UPHOLD THE ORDER OF THE CIT(A) ON T HIS ISSUE. 9. ACCORDINGLY, RESPECTFULLY FOLLOWING THE JURISDIC TIONAL TRIBUNALS DECISION AS STATED ABOVE GROUNDS NEEDS T O BE ALLOWED. ACCORDINGLY, THE ASSESSING OFFICER IS DIR ECTED TO DELETE THE ADDITION OF RS.40,53,422/- MADE IN THE COMPUTAT ION OF INCOME AS THE SAME WAS PAID BEFORE DUE DATE OF FILI NG OF RETURN OF INCOME. ACCORDINGLY, GROUND NO.7 TO 9 ARE ALLOW ED. 13. SINCE, FACTS ARE SAME THERE IS NO NEED TO DIFFE R WITH THE VIEW TAKEN IN THE APPELLATE ORDER FOR A.Y. 2008-09. ACCORDINGLY, FOLLOWING THE APPELLATE ORDER FOR A.Y. 2008-09, THE ASSESSING OFFICER IS DI RECTED TO DELETE THE ADDITION OF RS.37,73,405/-. THUS, GROUND NO.9 TO 12 & 14 AR E ALLOWED. 10 ITA NO.1588/PUN/2014 & 1597/PUN/2014 SHRI SATISH DAGADU DAREKAR 19. ABOVE STATED DECISION OF THE CIT(A) IS FOUND TO BE PR OPER AND SUSTAINABLE LEGALLY. THEREFORE, IN OUR CONSIDERED VIEW THE O RDER OF THE CIT(A) IS FAIR AND REASONABLE AND IT DOES NOT CALL FOR ANY INTERFERENCE. 20. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 21. TO SUM UP, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 31 ST DAY OF AUGUST, 2017. SD/- SD/- ($!% /VIKAS AWASTHY) (. /D.KARUNAKARA RAO) & !/ JUDICIAL MEMBER !/ ACCOUNTANT MEMBER / PUNE; / DATED : 31 ST AUGUST, 2017 S S . . G G A A N N G G A A D D H H A A R R A A R R A A O O +./&01$2$*0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)-V, PUNE. 4. / THE CIT-V, PUNE. 5. , ! , #$ , / DR, ITAT, B BENCH, PUNE. 6. %& / GUARD FILE. / BY ORDER, / / TRUE COPY / / ., $ / SR. PRIVATE SECRETARY, ! , / ITAT, PUNE
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