Gopal Dineshchandra Tulshan, Akola V. Income Tax Officer,Ward-3,Akola, Akola

ITA 161/NAG/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84681 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-12-2011
• Court: TRIBUNAL
• Department Lawyers: H M WANRE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER . ITA NO.161/NAG/2011 ( AY: 2006 - 2007 ) GOPAL D I NESHCHANDRA TULSHAN, TULSHAN WORLD FURNITURE, NEAR VASANT TALKIES, AKOLA 444001. / VS. INCOME TAX OFFICER, WARD - 3, AKOLA, ALSI PLOT, AKOLA 444001. ./ PAN: AAN PT1758R ( / APPELLANT) .. ( / RESPONDENT ) . ITA NO. 175/NAG/2012 ( AY: 2007 - 2008 ) SMT. VANDANA DEEPAK MOREY, C/O. S.G. JATHAO, BADNERA ROAD, AMRAVATI 444606. / VS. ASST. COMMISSIONER OF INCOME TAX, AMRAVATI CIRCLE, AMRAVATI. ./ PAN: AAWPM2640L ( / APPELLANT) .. ( / RESPONDENT ) . ITA NO. 176/NAG/2012 ( AY: 2007 - 2008 ) SMT. SMITA SANJYA JADHAO, PROP. M/S. S.S. INDUSTRIES, W - 22, MIDC AREA, AMRAVATI - 444606. / VS. ASST. COMMISSIONER OF INCOME TAX, AMRAVATI CIRCLE, AMRAVATI ./ PAN: ABVPJ 9175 F ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI K.P. DEWANI / REVENUE BY : SHRI H.M. WANRE, JCIT / DATE OF HEARING : 08.09.2014 / DATE OF PRONOUNCEMENT : 08.09.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE 3 APPEALS UNDER CONSIDERATION. THESE THREE APPEALS ARE FILED BY THE THREE DIFFERENT ASSESSEES INVOLVING ASSESSMENT YEARS 2006 - 07 AND 2007 - 08. SINCE, THE ISSUES INVOLVED IN ALL THE THREE APPEALS ARE IDENTICAL, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY A RE CLUBBED, HEARD COMBINEDLY AND DISPOSED OF IN THIS 2 CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS OF THIS ORDER. I. GROUNDS RAISED IN THE CASE OF GOPAL DINESHCHANDRA TULSHAN (AY 2006 - 07) READ AS UNDER: 1. THE CIT (A) - 1, NAGPUR HAS ERRED IN SUSTAINING THE DISALLOWANCE OF EXPENDITURE (INTEREST AT RS. 2,03,227/ - U/S 40(A)(IA). 2. THE LD CIT (A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THERE IS NO LIABILITY TO DEDUCT TDS FROM INTEREST PAYMENT BY THE APPELLANT. 3. THE LD CIT (A) HAS ERRED IN NOT CONSIDERING THE FACT THAT, INTEREST HAS BEEN PAID BY THE APPELLANT AND HENCE DISALLOWANCE U/S 40(A)(IA) IS NOT WARRANTED. 4. THE LD CIT (A) - 1 HAS ERRED IN NOT CONSIDERING THE FACT THAT RECIPIENT OF INTEREST (I.E., PAYEE) HAS AL READY PAID SUFFICIENT ADVANCE TAX ON HIS REGULAR INCOME INCLUDING SAID INTEREST RECEIPT AND AS SUCH THERE IS NO LOSS OF REVENUE TO THE DEPARTMENT. 5. THE LD CIT (A) HAS ERRED IN NOT APPRECIATION THE FACT THAT THERE IS DOUBLE TAXATION, ONCE PAID BY THE PAYEE O N INTEREST RECEIPT AND AGAINST CHARGED TO THE APPELLANT BY DISALLOWING EXPENDITURE U/S 40(A)(IA). II. GROUNDS RAISED IN THE CASE OF SMT. SMITA SANJYA JADHAO (AY 2007 - 08) READ AS UNDER: 1. THE ADDITION MADE BY AO AT RS.1,11,000/ - AND RS. 2,44,344/ - IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2. THE LD CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO AT RS. 1,11,000/ - AND RS. 2,44,344/ - U/S 40(A)(IA) OF INCOME TAX ACT, 1961. 3. THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234B OF INCOME T AX ACT, 1961. WITHOUT PREJUDICE THE LEVY OF INTEREST IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. III. GROUNDS RAISED IN THE CASE OF SMT. VANDANA DEEPAK MOREY (AY 2007 - 08) READ AS UNDER: 1. THE ADDITION MADE BY AO AT RS. 9,65,652/ - IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2. THE LD CIT (A) ERRED IN CONFIRMING THE ADDITION MADE BY THE AO AT RS. 9,65,652 / - U/S 40(A)(IA) OF INCOME TAX ACT, 1961. 3. THE ASSESSEE DENIES LIABILITY TO BE ASSESSED TO INTEREST U/S 234B OF INCOME TAX ACT, 1961. WITHOUT PREJUDICE THE LEVY OF INTEREST IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2. AT THE OUTSET, SHRI K.P. DEWANI, LD COUNSEL FOR THE ASSESSEES, BROUGHT OUR ATTENTION TO THE ABOVE GROUNDS AND MENTIONED THAT THE COMMON ISSUE RAISED IN ALL THE THREE APPE ALS RELATES TO THE APPLICABILITY OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AND THE RETROSPECTIVE APPLICATION OF THESE PROVISIONS TO THE FACTS OF THE INSTANT APPEALS. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE COUPLE O F DECISIONS OF THE TRIBUNAL NAMELY (I) ITAT, AGRA BENCH DECISION IN THE CASE OF RAJEEV KUMAR AGARWAL VS. ADDL CIT VIDE ITA NO.3376/AGRA/2013 (AY 2006 - 07), DATED 29.5.2013 AND (II) ITAT, COCHIN IN THE CASE OF SHRI ANTONY D. MUNDACKAL VS. ACIT VIDE ITA NO.38/COCH/2013 (AY 2009 - 2010), DATED 29.11.2013, WHEREIN IDENTICAL ISSUES WERE DECIDED BY THE TRIBUNAL AND MENTIONED THAT THE ORDERS OF THE ASSESSMENTS AND THE CIT (A) , IN ALL THESE THREE CASES, WERE 3 DECIDED PRIOR TO THE SAID ORDERS OF THE TRIBU NAL (SUPRA). LD COUNSEL DEMONSTRATED THAT THE PROVISO TO SECTION 40(A)(IA) OF WAS, WHICH WAS INSERTED BY THE FINANCE ACT, 2012 WAS INTERPRETED AND THE SAME WAS CLARIFICATORY IN NATURE AND THE BENEFIT OF THE SAME SHOULD BE APPLIED RETROSPECTIVELY. LD COUN SEL ALSO DEMONSTRATED THAT ALL THESE ORDERS WERE NOT AVAILABLE TO THE REVENUE AUTHORITIES WHEN THE ASSESSMENTS ARE MADE AND THE FIRST APPELLATE AUTHORITY DECIDED THE ISSUE. THE PARTICULARS OF THE DATES OF THE ORDERS OF THE AO, CIT (A) AND THE DATES OF THE SAID ORDERS OF THE TRIBUNAL ARE FURNISHED IN A TABULAR FORM WHICH READ AS UNDER: NAME OF THE ASSESSEE ITA NO. AO ORDER DATED CIT (A) ORDER DATED DATE OF ITAT ORDER SHRI GOPAL DINESHCHANDRA TULSHAN 161/NAG/2011 6.6.2007 5.9.2011 1) RAJEEV KUMAR AGRAWAL (ITA NO.337/AGRA/2013), DATED 29.5.2013. 2) ANTONY D. MUNDACKAL (ITA NO.38/COCH/2013) DATED 29.11.2013 SMT. SMITA SANJYA JADHAO 176/NAG/2012 31.12.2009 3.2.2012 VANDANA DEEPAK MORE 175/NAG/2012 31.12.2009 16.1.2012 3. FURTHER, LD COUNSEL PRAYED THAT IT IS IN THE F AIRNESS OF THE THINGS THAT THE IMPUGNED ORDERS IN ALL THE CASES UNDER CONSIDERATION MAY BE REMANDED TO THE FILE OF THE AO FOR ADJUDICATING THE ISSUES AFRESH AFTER EXAMINING THE APPLICABILITY OF THE SAID SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT. 4 . ON THE OTHER HAND, LD DR DUTIFULLY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 5 . WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDERS OF THE TRIBUNAL (SUPRA) AND THE RELEVANT MATERI AL PLACED BEFORE US. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE SAID ORDERS OF THE TRIBUNAL IN THE CASES OF RAJEEV KUMAR AGARWAL (SUPRA) AND SHRI ANTONY D. MUNDACKAL (SUPRA), WE FIND MERIT IN THE ARGUMENTS RAISED BY THE LD COUNSEL. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE REVENUE AND REMAND THE ISSUES TO THE FILE OF THE AO IN ALL THE INSTANT THREE CASES FOR ADJUDICATING THE ISSUES AFRESH AFTER EXAMINING THE APPLICABILITY OF THE SAID SECOND PROVISO TO SECTION 40(A)(IA) OF THE ACT AND AFTER VER IFYING THE REC ORDS OF THE ASSESSEES. AO SHALL GRANT A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES AS PER THE PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEES IN ALL THE THREE APPEALS ARE ALLOWED FOR STATISTICAL PURPO SES. 4 6 . IN THE RESULT, ALL THE THREE APPEALS FILED BY THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTER COMPLETION OF HEARING ON 8 TH SEPTEMBER, 2014. SD/ - SD/ - (VIVEK VARMA) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER NAGPUR ; 08 /09/2014 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , NAGPUR / DR, ITAT, NAGPUR. 6. / GUARD FILE . //TRUE COPY// / BY ORDER, (SR. PRIVATE SECRETARY) ITAT, NAGPUR