Smt. Jagrutiben J. Shah, Baroda V. The ACIT, Central Circle-2, Baroda

ITA 177/AHD/2014

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9375 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-01-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: M J SHAH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NOS.177/AHD/2014 (ASSESSMENT YEAR:2010-11) SMT. JAGRUTIBEN J. SHAH JANOD, 4, AMRAKUNJ SOCIETY, ELLORA PARK, BARODA 390 007 APPELLANT VS. THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2, BARODA RESPONDENT PAN: AJKPS6644K /BY ASSESSEE : SHRI M. J. SHAH, A.R. /BY REVENUE : SHRI ROOPCHAND, SR. D.R. /DATE OF HEARING : 19.01.2017 /DATE OF PRONOUNCEMENT : 20.01.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2010-11 ARISES AGAINST CIT(A)-IV, AHMEDABADS ORDER DATED 07.10.2013 IN AP PEAL NO. CIT(A)- IV/146/BRD/CC-2/12-13 UPHOLDING ASSESSING OFFICERS ACTION MAKING SECTION 40(A)(IA) DISALLOWANCE OF INTEREST PAYMENT OF RS.5,76,171/- PAID TO ITA NO. 177/AHD/2014 (SMT. JAGRUTIBEN J. SHAH VS. A CIT) A.Y. 2010-11 - 2 - M/S. G. E. CAPITAL WITHOUT DEDUCTING TDS IN PROCEED INGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. 2. WE HAVE HEARD BOTH THE LEARNED REPRESENTATIVES R EITERATING THEIR RESPECTIVE STANDS. THERE CAN HARDLY BE ANY DISPUTE THAT THE ASSESSEES INTEREST PAYMENT IN QUESTION VERY MUCH INVITED TDS DEDUCTION U/S.194A OF THE ACT. BOTHE THE LOWER AUTHORITIES HAVE THUS RIGHTLY INVOK ED THE IMPUGNED DISALLOWANCE U/S.40(A)(IA) OF THE ACT. THE ASSESSE ES ARGUMENT CHALLENGING THE SAME BY QUOTING THIS TRIBUNALS SPECIAL BENCH D ECISION IN MERILYN SHIPPING TRANSPORTS & ORS. VS. CIT 136 ITD 23 (VIZ AG) (SB) ALSO APPEARS TO HAVE BEEN RIGHTLY REJECTED IN COURSE OF THE LOWE R APPELLATE PROCEEDINGS AS HONBLE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO. 905 OF 2012 CIT VS. SIKANDAR KHAN N. TUNVAR DECIDED ON 02.05.2013 HAS H ELD THAT PAID AND PAYABLE DISTINCTION THEREIN IN SECTION 40(A)(IA) I S NO MORE ACCEPTABLE. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. IT IS EVIDENT THAT SECTION 40(A)(IA) OF THE ACT CONTAINS SECOND PROVISO IN THE NATURE OF A CURATIVE ONE INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01.04.2013 STIPULATING THAT WHERE AN ASSESSEE-DEDUCTOR FAILS T O DEDUCT WHOLE OR ANY PART OF THE TAX AS PER CHAPTER 17 ON THE PAYMENTS CONCER NED BUT IT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT U/S.201(1) FIRST PROVISO, THEN, IT SHALL BE DEEMED FOR THE PURPOSE OF THE INSTANT CLAUSE THAT HE HAS DEDUC TED AND PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RETURNED OF INCOME BY THE RESIDENT PAYEE REFERRED TO IN THE SAID PROVISO. THIS TRIBUNALS A GRA BENCH IN RAJIV KUMAR AGARWAL VS. ADDL.CIT ITA NO.337/AGRA/2013 DECIDED O N 29.05.2013 HOLDS THE SAID PROVISO TO BE CURATIVE HAVING RETROSPECTIV E EFFECT AS UPHELD IN EXTEMPORE IN HONBLE DELHI HIGH COURTS JUDGMENT IN ITA NO.160/2015 CIT VS. ANSAL LAND MARK TOWNSHIP (P) LTD. DECIDED ON 2 6.08.2015. WE THUS ACCEPT ASSESSEES CONTENTION FOR STATISTICAL PURPOS ES AND REMIT THE ISSUE BACK ITA NO. 177/AHD/2014 (SMT. JAGRUTIBEN J. SHAH VS. A CIT) A.Y. 2010-11 - 3 - TO THE ASSESSING OFFICER FOR CARRYING OUT A FACTUAL VERIFICATION IN ACCORDANCE WITH LAW AS TO WHETHER THE ASSESSEES PAYEE M/S. G. E. CAPITAL HAS INDEED INCLUDED THE INTEREST IN QUESTION IN ITS COMPUTATIO N OF INCOME AS PER PROVISIONS OF THE ACT. THE ASSESSEES SOLE SUBSTAN TIVE GROUND SUCCEEDS FOR STATISTICAL PURPOSES. 4. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. [PRONOUNCED IN THE OPEN COURT ON THIS THE 20 TH DAY OF JANUARY, 2017.] SD/- SD/- ( MANISH BORAD ) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 20/01/2017 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