M/s. A.J.Dodiya & Co., Baroda V. The Income Tax Officer, Ward 2(1), Baroda

ITA 1745/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9926 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-11-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 13-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT JAVERI
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO. 1745/AHD/2013 (ASSESSMENT YEAR: 2009-10) M/S. A. J. DODIYA & CO. 301 TO 303, VINAYAK COMPLEX, ABOVE KALUPUR BANK, NEAR SARASWATI CROSS ROAD, MANJALPUR, BARODA APPELLANT VS. INCOME TAX OFFICER, WARD 2(1), BARODA RESPONDENT PAN: AALFA5106E / BY ASSESSEE : URVASHI SHODHAN, A.R. / BY REVENUE : SHRI JAYANT JAVERI, CIT. D.R. /DATE OF HEARING : 07.11.2016 /DATE OF PRONOUNCEMENT : 28.11.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE CIT(A)-II, BARODAS ORDER DATED 14.02.2013, IN APPE AL NO. CAB/11-367/11- 12, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCO ME TAX ACT, 1961; IN SHORT THE ACT. ITA NO. 1745/AHD/2013 (M/S. A. J. DODIYA & CO. VS. ITO) A.YS. 2009-10 - 2 - 2. THE ASSESSEE RAISES THREE SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL INTER ALIA IN CHALLENGING THE CIT(A)S ORDER PASSED IN IT S ABSENCE, ENHANCING DISALLOWANCE OF LABOUR EXPENSES OF RS.10,50,990/- @ 5% ON AD HOC BASIS AS MADE BY THE ASSESSING OFFICER TO THAT @20% WITHOUT ISSUING NECESSARY NOTICE U/S.251(1)(A) OF THE ACT AND ALSO AFFIRMING SECTION 40(A)(IA) DISALLOWANCE OF RS.48,23,115/- QUA VARIOUS PAYMENTS MADE TO ITS PAYEES IN THE NATURE OF LABOUR CHARGES; RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 3. THERE DOES NOT APPEAR TO BE ANY DISPUTE THAT THE ASSESSING OFFICER HAD FRAMED A REGULAR ASSESSMENT IN ASSESSEES CASE ON 2 9.12.2011 MAKING ADDITION OF RS.10,50,990/- I.E. @ 5% OF RS.2,10,19, 808/- ON THE GROUND THAT THE ASSESSEE HAD FAILED TO PRODUCE ALL THE LABOUR R EGISTER RELATING TO THE ABOVE STATED LABOUR WAGES EXPENSES IN QUESTION INCURRED I N FURTHERANCE TO ITS WORK AGREEMENT AND ORDERS RECEIVED FROM VARIOUS CELLULAR OPERATORS. THIS FOLLOWED THE LATTER SECTION 40(A)(IA) DISALLOWANCE OF LABOUR EXPENSES OF RS.48,23,213/- ON ACCOUNT OF ASSESSEES FAILURE IN DEDUCTING TDS T HEREUPON. 4. THE ASSESSEE FILED APPEAL. THE CIT(A) APPEARS T O HAVE ISSUED FOUR NOTICES DATED 08.08.2012, 26.11.2012, 09.01.2013 & 13.02.2013 FOR CORRESPONDING HEARINGS ON 05.09.2012, 04.12.2012, 2 3.01.2013 & 13.02.2013 RESPECTIVELY. ALL NOTICES EXCEPT THE SECOND ONE ST OOD NON COMPLIED WITH. THE SAID EXCEPTION QUA SECOND NOTICE INVOLVED ASSES SEES LATTER CLAIMING TO HAVE DEPOSITED TDS AMOUNT WITH INTEREST OF RS.1,45, 069/-. WE PROCEED FURTHER TO NOTICE THAT THE CIT(A) IN PARA 6.2 OF TH E LOWER APPELLATE ORDER PROCEEDED TO ENHANCE ASSESSEES LABOUR PAYMENT DISA LLOWANCE OF RS.10,50,990/- @5% TO RS.42,03,960/- ON THE GROUND THAT THE ASSESSEE HAD FAILED TO PRODUCE BOOKS OF ACCOUNTS AND AUDIT REPOR T. THIS CASE FILE DOES NOT INDICATE ANY ENHANCEMENT NOTICE BEING ISSUED TO THE ASSESSEE IN LOWER APPELLANT PROCEEDINGS. WE OBSERVE IN THESE FACTS T HAT THE LD. CIT(A)S ORDER ITA NO. 1745/AHD/2013 (M/S. A. J. DODIYA & CO. VS. ITO) A.YS. 2009-10 - 3 - IN QUESTION GOES AGAINST THE ABOVE STATUTORY PROVIS ION U/S.251(1)(A) OF THE ACT. WE ACCORDINGLY ARE OF THE OPINION THAT THE LD . CIT(A) NEEDS TO RE- ADJUDICATE ASSESSEES APPEAL ON BOTH SUBSTANTIVE GR OUNDS AFRESH AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO ASSESSEE. 5. THIS ASSESSEEES APPEAL IS ALLOWED FOR STATISTIC AL PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 28 TH DAY OF NOVEMBER, 2016.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD: DATED 28/11/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 / GUARD FILE. BY ORDER / . // . /0