Shri Sureshbhai Mohanbhai Patel, Baroda V. The Income tax Officer,Ward-4, Bharuch

ITA 163/AHD/2013

• Counselvise Citation: 16320514 RSA 2013
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 17-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P BHATHEJA
• Assessee Lawyers: M K KAJI
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AN D SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 163 & 164/AHD/2013 A.Y: 2006 07 & 2008 09 SURESHBHAI MOHANBHAI PATEL 54, SHREENATHJI BUNGLOWS, HARNI AIRPORT ROAD, VADODRA 390022 PAN : ADLPP3942L VS ITO, WARD 4, BHARUCH (ASSESSEE) (REVENUE) REVENUE BY : SHRI O. P. BHATHEJA, SR. D R ASSESSEE(S) BY : SHRI M. K. KAJI, AR / // / DATE OF HEARING : 13/08/2013 / DATE OF PRONOUNCEMENT: 14/08/2013 / O R D E R PER A. K. GARODIA: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND A RE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT (A) -IV, BARODA BOTH DATED 29.10.2012 FOR A.Y. 2006 07 AND 2008 09. 2. IN BOTH THE YEARS, GROUNDS 1 TO 6 ARE REGARDING VALIDITY OF REOPENING. THESE GROUNDS WERE NOT PRESSED BY THE LEARNED AR OF THE ASSESSEE AND ACCORDINGLY REJECTED AS NOT PRESSED. 3. AS PER GROUND NO. 7, 8 AND 9 IN BOTH YEARS, THE DISPUTE IS ABOUT THE ADDITION MADE BY THE A.O. BEING 20% OF CMRE, UNIFOR M ALLOWANCE AND HOLIDAY HOME. 3. IT WAS SUBMITTED BY THE LEARNED AR OF THE ASSESS EE THAT THE ASSESSEE IS AN EMPLOYEE OF ONGC LIMITED AND THESE PAYMENTS WERE RE CEIVED BY THE ASSESSEE ITA NO.919/AHD/2010 - 2 - EMPLOYEE FROM THE EMPLOYER I.E. ONGC LIMITED. HE FU RTHER SUBMITTED THAT IN THE CASE OF EMPLOYER ONGC ALSO, DEMAND WAS RAISED B Y THE A.O. OF ONGC IN RESPECT OF ALLEGED NON DEDUCTION OF TDS ON THESE PA YMENTS TO ITS EMPLOYEES BY ONGC. HE SUBMITTED A COPY OF THE TRIBUNAL ORDER IN THE CASE OF ONGC LTD. IN ITA NO. 184 185 & 1066/AHD/2010 FOR A.Y. 2009 1 0 DATED 16.11.2012. HE DRAWN OUR ATTENTION TO PARA NO. 12 OF THIS TRIBUNAL ORDER AND SUBMITTED THAT IT IS HELD BY THE TRIBUNAL IN THAT CASE THAT ONGC IS LIAB LE TO FBT AND FBT IS PAID BY ONGC AND HENCE ONGC IS NOT LIABLE FOR TDS. REGARDI NG THE ADDITION U/S 68 IN A. Y. 2006 07 AS PER GROUND NO. 10 IN THAT YEA R, IT WAS SUBMITTED BY THE LEARNED AR THAT THIS ISSUE MAY BE RESTORED TO THE F ILE OF THE A.O. FOR A FRESH DECISION BECAUSE PROPER REPRESENTATION COULD NOT BE MADE BY THE ASSESSEE ON THIS ISSUE. ABOUT OTHERS GROUNDS IN BOTH YEARS, HE SUBMITTED THAT THESE ARE EITHER GENERAL OR CONSEQUENTIAL. AS AGAINST THIS, LEARNED DR SUPPORTED THE ORDERS OF LEARNED CIT (A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE CASE OF ON GC I.E. THE EMPLOYER OF THE PRESENT ASSESSEE, THE ISSUES REGARDING CMRE AND UNI FORM ALLOWANCE IS COVERED IN FAVOUR OF THE ASSESSEE BECAUSE IN THAT C ASE, IT IS HELD BY THE TRIBUNAL THAT SINCE ONGC HAS PAID FBT ON THESE PAYMENTS TO I TS EMPLOYEES, NO TDS WAS REQUIRED TO BE DEDUCTED. MEANING THEREBY THAT T HE SAME IS NOT LIABLE TO BE ADDED IN THE INCOME OF THE EMPLOYEE AGAIN. AS THIS WILL AMOUNT TO DOUBLE ADDITION, WE HOLD THAT THESE TWO ADDITIONS ARE NOT JUSTIFIED IN THE PRESENT CASE AND HENCE, WE DELETE THE SAME. 5. ABOUT HOLIDAY HOME, IT WAS SUBMITTED BY THE ASSE SSEE BEFORE LEARNED CIT (A) THAT FBT IS PAID BY THE EMPLOYER ONGC FOR T HAT ALSO BUT NO FINDING IS GIVEN BY HIM AND IN THE TRIBUNAL ORDER OF ONGC ALSO , THERE WAS NO ISSUE ABOUT HOLIDAY HOME. HENCE, ON THIS ASPECT, WE RESTORE THE MATTER TO THE A.O. FOR A FRESH DECISION. THE ASSESSEE HAS TO BRING EVIDENCE ON RECORD AS TO WHETHER THE ITA NO.919/AHD/2010 - 3 - EMPLOYER ONGC HAS PAID FBT OR NOT IN RESPECT OF HOL IDAY HOME AND IF IT IS FOUND THAT FBT WAS PAID BY ONGC FOR HOLIDAY HOME TH EN NO ADDITION SHOULD BE MADE IN THE CASE OF THE ASSESSEE ON THIS ACCOUNT ALSO. ABOUT ADDITION U/S 68 IN A.Y. 2006 07, WE RESTORE THE ISSUE TO A.O. FOR A FRESH DECISION. NEEDLESS TO SAY THAT THE A.O. SHOULD PROVIDE ADEQUATE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE FOR BOTH THE ISSUES. OTHER GROUNDS ARE REJ ECTED AS GENERAL OR CONSEQUENTIAL IN BOTH YEARS. 5. IN THE RESULT, THE BOTH APPEALS OF THE ASSESSEE ARE PARTLY IS ALLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTION ED ON THE CAPTION PAGE. SD/- SD/- (MUKUL KUMAR SHRAWAT) (A.K. GAR ODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, //TRUE COPY// 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD 1. DATE OF DICTATION- 13.08.2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.08.2013 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.8.13 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 8. DATE OF DESPATCH OF THE ORDER