The ACIT, Circle-9, Surat V. M/s. Krishna Corporation, Surat

ITA 1815/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9362 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 18-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 17-08-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Keywords: Additional evidence
• Section: 143(3); 194C; 37

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER THE ACIT, CIRCLE - 9, SURAT (APPELLANT) VS M/S. KRISHNA CORPORATION, A.K. ROAD, SURAT - 395008 PAN:AAHFK5021C (RESPONDENT) REVENUE BY : S H RI NARENDRA SINGH , SR. D . R. ASSESSEE BY: NONE DATE OF HEARING : 18 - 01 - 2 016 DATE OF PRONOUNCEMENT : 26 - 02 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2009 - 10 , AR IS ES FROM ORDER OF THE CIT(A) - V, SURAT DATED 03 - 0 5 - 2012 IN APPEAL NO. CAS/V/176/2011 - 12 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 1815 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 2 2. CASE CALLED TWIC E. NONE APPEARS AT ASSESSEE S BEH SET. WE FIND THAT THE REVENUE HAS ALREADY SERVED H EARING NOTICE ON 03 - 12 - 2015. THE ASSESSEE IS ACCORDINGLY PROCEEDED EX - PARTE. LD. DEPARTMENT AL REPRESENTATIVE STRONGLY ARGUES IN FAVOUR OF ALL FIVE SUBSTANTIVE GROUNDS PLEADED IN THE INSTANT APPEAL. WE HAVE HEARD THE REVENUE AND PERUSED THE CASE FILE. 3. THE REVENUE S FIRST SUBSTANTIVE GROUND SEEKS TO RESTORE SECTION 40(A)(IA) DISALLOWANCE OF RS. 7,81,598/ - MADE BY THE ASSESSING OFFICER FOR ASSESSEE S FAILURE IN NOT PAYING TDS DEDUCTED WITHIN THE TIME SCHEDULE. THE ASSESSEE PAID THE SAME QUA ITS EXPE NDITURE CLAIM ON 11 - 01 - 2009. THE RELEVANT TDS DEDUCTED AMOUNT IS RS. 17,711/ - . THE ASSESSING OFFICER OBSERVED TH AT PRE - AMENDED SECTION 40(A)(IA ) MANDATED SUCH A PAYMENT BEFORE DUE DATE OF FILING RETURN IN CASE THE AMOUNT IN QUESTION PERTAINED TO TIME PER IOD OF MARCH AND BEFORE CLOSURE OF FINANCIAL YEAR IN OTHER CASES. HE OPINED THAT ASSESSEE S AMOUNT IN QUESTION WAS NOT FOR MARCH MONTH. THE ASSESSING OFFICER ACCORDINGLY INVOKED SECTION 40(A)(IA) FOR DISALLOWI NG THE IMPUGNED EXPENDITURE OF R S. 7,81598/ - . 4. THE CIT(A) ACCEPTS ASSESSEE S CONTENTION AND HOLDS THAT THE IMPUGNED PROVISION FOR EXPENSES IN QUESTION WAS CREATED ON 31 - 03 - 2009 I.E. IN THE MONTH OF MARCH AND THEREFORE, THE ASSESSEE HAS RIGHTLY PAID THE TDS IN QUESTION BEFORE THE DEADLINE DATED F ALLING ON 31 - 05 - 2009. AFTER GIVING OUR THOUGHTFUL CONSIDERATION , WE FIND THAT I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 3 T HERE IS NO EVIDENCE ON RECORD DI S P UTING ASSESSEE S CLAIM MAKING PROVISION ONLY IN THE MONTH OF MARCH, 2009 STIPULATING DEADLINE DATE OF MAY, 2009 AND IN VIEW OF THE FACT THAT T HE SAME ALREADY PAID ON 11 - 02 - 2009. WE UPHOLD CIT(A) S FINDINGS UNDER CHALLENGE. THIS FIRST SUBSTANTIVE GROUND IS REJECTED. 5. WE COME TO REVENUE S SECOND SUBSTAN T I VE GROUND ASSAILING CORRECTNESS OF CIT(A) S ORDER RESTRICTING SEC TION 40(A)(IA) DISALLO WANCE OF R S. 10,16,068/ - MADE BY THE ASSESSING OFFICER FOR NON - DEDUCTION OF TDS TO THAT OF RS. 2,56,000/ - ONLY BY ADMITTING ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE INCOME TAX RULES. IT EMERGES FROM THE ASSESSMENT ORDER THAT ASSESSEE MADE PAYME NT OF NINE PAYEES WITHOUT DEDUCTING TDS IN ALL BUT ONE CASE WHEREIN THE DEDUCTION WAS @ 1% AS AGAINST 10%. THE ASSESSING OFFICER DISALLOWED THE ENTIRE EXPENDITURE CLAIM. 6 . THE CIT(A) REVERSES ASSESSING OFFICER ACTION AS UNDER: - FINDINGS & CONCLUSIONS OF THE A.O.: 5.1. THE NEXT GROUNDS OF APPEAL IS THE ADDITION OF RS. 10,16,068/ - U/S. 40(A)(IA) OF THE ACT. THE ASSESSING OFFICER DISALLOWED ALL EXPENSES ON THE GROUND THAT TAX WAS NOT DEDUCTED ON THESE EXPENSES. SUBMISSIONS OF THE APPELLANT: 5.2. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE ME, THE A.R. OF THE APPELLANT FILED WRITTEN SUBMI SSION WHICH IS REPRODUCED BELOW : - ADDI TION OF RS. 10,16,068/ - U/S. 40( A)(IA) OF THE ACT THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT ON FOLLOWING EXP ENSES THE ASSESSEE HAD NOT DEDUCTED TDS. I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 4 A. RAJMANDIR RS.1,00,000 B. JALIL A. SHEIKH RS. 1,06,330 C. DIPAK M. HARSORA RS. 25,000 D. KALPESH HARSORA RS. 25,000 E. RAJENDRA ASODARIYA RS. 90,000 F. ADARSH SEC. S ERVICES RS. 75,738 G. BECHARJ. VASTRAPARA RS. 4,38,000 H. STICKER HOUSE RS. 78,000 I. RAMESHBHAI SONANI RS. 78,000 THE ASSESSEE HAD DEDUCTED TAX ON PAYMENT OF RS. 90,000/ - MADE TO RAJENDRA ASODARIYA. ON PAYMENT OF RS. 25,000/ - TO DIPAK HARSORA AND RS. 25,000/ - TO KAL PESH HARSORA, THE PROVISIONS ARE NOT APPLICABLE SINCE THE PAYMENT DID NOT EXCEED RS. 50,000/ - . THE PAYMENT TO ADARSH SECURITY IS THE WATCHMAN SALARY OF MORE THAN 1 PERSON AND HENCE TDS WAS NOT DEDUCTED. THE PAYMENT TO BECHARBHAI J. VAST ARPARA IS THE REPAYMENT OF LOAN ON WHICH TDS IS NOT REQUIRED TO BE DEDUCTED. THE AMOUNT OF RS. 1,06,330/ - PAID TO JALIL SHEIKH IS ALSO REPAYMENT OF LOAN. THUS, THE NET PAY MENT SUBJECT TO TDS IS RS. 2,56, 000/ - ON WHICH TDS WAS NOT DEDUCTED. THE ADDITION SHO ULD THEREF ORE, BE REDUCED TO RS. 2,56,000 / - . DECISION: 5.3. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS OF APPELLANT. I FIND THAT THE ASSESSING OFFICER HAS NOT PROPERLY APPRECIATED THE FACTS OF THE CASE. THE PROVISION OF SECTION 194C IS APPLICABLE WHEN THE E NTIRE PAYMENT EXCEEDS RS. 50,000 / - . HENCE, IN THE CASE OF DIPAKBHAI HARSORA AND KALPESH HARSOR A TO WHOM PAYMENT OF RS. 25,000 / - EACH HAS BEEN MADE, THE PROVISION OF SECTION 194C IS NOT APPLICABLE. FOR THE SECURITY SAL ARY OF RS. 75,738/ - PAID TO MOR E THAN 3 PERSO NS EACH NOT EXCEEDING RS. 50,000 / - , THE PROVISION OF SECTION 194C IS NOT APPLICABLE. THE ASSESSING OFFICER HAS ALSO INC LUDED THE AMOUNT OF RS. 4,38,000 / - WHICH IS THE REPAYMENT OF LOAN OF BECHARBHAI AND RS. 1,06,330/ - TO JALIL SHEIKH ON WHICH NO TDS IS REQUIRED. THUS, OUT OF RS. 10,16,068/ - , TDS IS NOT REQUIRED ON AMOUNT OF RS. 7,60,068/ - . THE ASSESSEE HAS NOT DEDUCTED TDS ON THREE PAYMENTS - RS. 1,00,000 / - TO RAJ MANDIR AND RS. 78,000 EACH TO STICKER HOUSE AND RAMESHBHAI S ONANI. ACCORDINGLY, THE ADDITION OF RS. 2,56,000/ - IS CONFIRM ED AND ADDITION OF RS. 7,60,068/ - IS HEREBY DELETED. THUS THIS GROUND OF APPEAL IS PARTLY ALLOWED. I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 5 7 . WE HAVE HEARD REVENUE S CONTENTION. WE FIND THAT THE CASE FILE DOES NOT INDICATE ADMISSION OF ANY ADDITIONAL EVIDENCE IN THE LOWER APPELLATE PROCEEDINGS. THE CIT(A) S ORDER HOLDS THAT AGGREGATE PAYMENT TO TWO PAYEES (SUPRA) DOES NOT EXCEED THRESHOLD LIMIT OF RS. 50,000/ - IN EACH CASE AS GIVEN IN SECTION 194C(5) PROVISO. HE THEREAFTER DEALS W ITH THE CASES OF ASSESSEE PAYING SALARY TO HOLD THAT THE SAME ALSO DOES NOT COME UNDER THIS TDS DEDUCTION PROVISION. HE FURTHER HOLDS THAT THE ASSESSEE HAS REPAID THE LOANS TAKEN IN EARLIER YEARS. ALL THESE RELIEF AMOUNTS AGGREGATE TO RS. 7,60,068/ - IN Q UESTION AS DELETED IN LOWER APPELLATE ORDER. THE REVENUE DOES NOT PRODUCE ANY COGENT MATERIAL ON RECORD TO REBUT THESE FINDINGS UNDER CHALLENGE. WE ACCORDINGLY DECIDE THIS SECOND SUBSTANTIVE GROUND AGAINST THE REVENUE . 8 . THE THIRD SUBSTANTIVE GROUND PLEADS THAT THE CIT(A) OUGHT NOT TO HAVE DELETED ADDITION OF RS. 9,39,831/ - MADE BY THE ASSESSING OFFICER ON THE BASIS OF 26AS REPORT DISCLOSING DETAILS OF TDS DEDUCTED AND NOT OFFERED AS INCOME. THE LOWER APPELLATE FINDINGS UNDER CHALLENGE DECIDE THE ISS UE IN AS SESSEE S FAVOUR AS UNDER: - 8. THE NEXT GROUNDS OF APPEAL IS THE ADDITION OF RS. 9,39,831/ - ON THE GROUND THA T AGAINST THE TCS OF RS. 23,316/ - , THE CORRESPONDING RECEIPT/INCOME HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS. SUBMISSIONS OF THE APP ELLANT: 8.2. THE APPELLANT SUBMITTED BEFORE ME THAT TCS IS PAID ON PURCHASE OF TIMBER. IT IS A TAX ON PURCHASES AND THEREFORE, NO INCOME IS REQUIRED TO BE RECORDED. SINCE IT IS A TAX ON PURCHASE OF TIMBER AND IT IS TO BE SEEN WHETHER THE PURCHASES OF TIMB ER ARE ACCOUNTED IN THE BOOKS OF ASSESSEE. THE APPELLANT SUBMITTED THE I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 6 COPY OF PURCHASE BILL OF TIMBER, COPY OF LEDGER ACCOUNT AND BANK STATEMENT SHOWING THE PAYMENT OF RS. 9,39,831/ - ACCOUNTED IN THE BOOKS OF ACCOUNT OF APPELLANT. DECISION: 8.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE SUBMISSIONS OF THE APPELLANT. I AM INCLINED TO AGREE WITH THE SUBMISSION OF THE A.R. THAT TCS IS PAID ON PURCHASE OF TIMBER. IT IS A TAX ON PURCHASES AND THEREFORE, NO INCOME IS R EQUIRED TO BE RECORDED. I FI ND THAT THE APPELLANT HAS DULY RECORDED THE PURCHASE OF TIMBER IN ITS BOOKS OF ACCOUNT S AGAINST THE TCS OF RS. 23,316/ - AND THEREFORE, THE ASSESSING OFFICER WAS NOT CORRECT IN MAKING THE ADDITION. ACCORDINGLY, THE ADDITION OF RS. 9,39,831/ - IS HEREBY DELET ED AND THE GROUND OF APPEAL IS ALLOWED. 9 . HEARD REVENUE S ARGUMENTS. THERE IS NO DISPUTE THAT THE IMPUGNED ADDITION HAS BEEN MADE AS PERTAINING TO TCS PAID ON TIMBER PURCHASES. THE REVENUE DOES NOT QUOTE ANY LEGAL PRECEDENT OR COGENT EVIDENCE TO REBUT THE CIT(A) S CRUCIAL FINDING TO INDICATE THAT THE ABOVE STATED TCS C OLLECTED AT SOURCE PRESCRIBES RECOGNITION OF ANY CORRESPONDING INCOME IN BOOKS. THIS THIRD SUBSTANTIVE GROUND FAILS. 10 . THE REVENUE S FOURTH SUBSTANTIVE GROUND STATES THAT T H E CIT(A) HAS ERRED IN DELETING LAND LABELING EXPENDITURE DISALLOWANCE OF RS. 20,04,750/ - DESPITE THE FACT THAT THERE IS NO SUPPORTIVE EVIDENCE ON RECORD. IT EMERGES FROM THE ASSESSMENT ORDER THAT ASSESSEE HAD SUBMITTED PAYEES NAMES, DATES, AMOUNTS AND MODE THEREO F. THE ASSESSING OFFICER SOUGHT FOR PAYEES NAMES, ADDRESSES, AMOUNTS, TDS DETAILS AND REASONS FOR NON - DEDUCTION THEREOF ALONG WITH EVIDENCE IN SUPPORT OF LAND LABELING WORK. THE ASSESSEE S CASE WAS I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 7 THAT IT HAD NOT RECOGNIZED SALES IN THE IMPUGNED ASSESSM ENT YEAR QUA TWO PROJECTS IN QUESTION SINCE THE SAME STOOD INCLUDED IN THE CLOSING STOCK. IT FURTHER SUBMITTED THAT AN IDENTICAL DISALLOWANCE @ 25% HAD BEEN MADE IN PRECEDING ASSESSMENT YEAR. THE ASSESSING OFFICER OBSERVED IN THE ASSESSMENT ORDER THAT ASS ESSEE S SELF STYLED VOUCHERS INCLUDING FIRST NAME OF PAYEES IN ABSENCE OF ADDRESSES AND EVIDENCE OF LAND LABELING WERE NOT SUFFICIENT TO PROVE THE CLAIM. HE REJECTED THE CLOSING STOCK PLEA AS WELL FOR LACK OF EVIDENCE. ALL THIS RESULTED IN THE IMPUGNED D ISALLOWANCE OF RS. 20,04,750/ - . 11 . THE CIT(A) ACCEPTS ASS ESSEE S SUBMISSION AS FOLLOWS: - SUBMISSION OF THE APPELLANT: 4.2. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE ME, THE A.R. OF THE APPELLANT FILED WRITTEN SUBMI SSION WHICH IS REPRODUCED BE LOW : - ADDITION OF RS. 20,04,750 FOR LAND LEVELING EXPENSES : THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF BUILDING CONSTRUCTION AND ORGANIZING. THE GRO SS PROFIT DURING THE YEAR IS 11. 17%% A S COMPARED TO GROSS PROFIT OF 8. 49% IN A.Y. 2008 /09. THE ASSESSING OFFICER DISALLOWED RS. 20,04,750/ - AT 100% OF LAND LEVELING EXPENSES OF RS. 20,04,750/ - . IN A.Y. 2007/08 AND A.Y. 2008/09 THE DISALLOWANCE WAS MADE AT 25% OF TOTAL EXPENSES WHICH WAS DELETED BY CIT(A). THE COPY OF ORDER OF CIT(A) OF A. Y . 2007/08 IS ENCLOSED. THE ASSESSEE HAD MAINTAINED COMPLETE RECORDS OF EACH TYPE OF WAGES IN INVOLVED IN THE ACTIVITY OF CONSTRUCTION OF BUILDING. THE ASSESSING OFFICER MADE THE ADDITION ON THE GROUND THAT THE APPELLANT HAD NOT INCURRED EXPENSES OF DEVELOP MENT OF LAND AND LAND LEVELING EXPENSES. IT WAS EXPLAINED TO ASSESSING OFFICER THAT ALL EXPENSES ARE SUPPORTED BY VOUCHERS AND BILLS. THE FOLLOWING EVIDENCES SUBMITTED TO ASSESSING OFFICER ARE ENCLOSED: I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 8 1. COPY OF LETTER DTD. 12.12.2011. 2. THE TECHNICAL REPORT OF ENGINEERS. 3. THE VOUCHERS OF LAND LEVELING EXPENSES. 4. THE COPY OF LEDGER A/C. OF LAND LEVELING EXPENSES. THE ADDITION SHOULD THEREFORE BE DELETED. DECISION: 4.3. I HAVE CAREFULLY GONE THROUGH THE SUBMISSIONS OF APPELLANT AND ASSESSMENT ORDER. I FIND THAT THE ISSUE IS COVERED BY MY DECISION IN APPEAL NO. CAS/V/125/2009 - 10 DTD. 28.04.2011 FOR A.Y. 2007 - 08 IN THE APPELLANT'S OWN CASE. I FIND THAT THE APPELLANT HAS PURCHASED SOIL BY VARIOUS TRUCKS FROM LOCAL PERSONS. THE VOUCHERS BEAR TRUCK NO., R ATE, AMOUNT PAID AND THE NAME OF SUPPLIER OF SOIL. THE CERTIFICATE OF ENGINEER IS EVIDENCE THAT LAND REQUIRE SOIL FILLING FOR CONSTRUCTION AND DEVELOPMENT OF GARDEN IN COP. THE LOCAL SUPPLIERS OF SOIL BY TRUCK BASIS ARE DOING UNORGANIZED BUSINESS. THEY HAV E THEREFORE, HARDLY ANY PRESCRIBED BILLS. THEY ALSO REQUIRE THE PAYMENT ON THE BASIS OF TRANSPORTATION AND VOUCHERS. THE CONTENTIONS OF THE ASSESSING OFFICER THA T VOUCHERS ARE SELF MADE DO NOT RENDER THE EXPENSES AS NOT ELIGIBLE FOR DEDUCTION. THE HON'BLE ITAT IN ACIT VS. ALLIED CONSTRUCTION, REPORTED AT 106 TTJ 616 AND IN THE CASE OF RAJ SONS JEWELLERS VS. ITO REPORTED AT 86 TTJ 1106 HELD THAT MISTAKES IN VOUCHERS DOES NOT BY ITSELF BE THE BASIS FOR DISALLOWANCE OF EXPENSES. THE HON'BLE ALLHABAD HIGH COURT IN THE CASE OF NISAR BIRI SIKKA NO. 1 VS. CIT REPORTED T 174 TAXMAN 51 HELD THAT PAYMENT OF EXPENSES ON THE BASIS OF SELF MADE VOUCHERS AND REGISTERS BEARING THUMB IMPRESSIONS OF RECIPIENT OF PAYMENT ARE NOT AGAINST THE TRADE PRACTICE AND METHOD OF ACCOUN TING. ACCORDINGLY THE ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING LAND LEVELING EXPENSES. AGAINST THE DISALLOWANCE OF 25% IN A.Y. 2007 - 08, THE ASSESSING OFFICER DISALLOWED 100% OF EXPENSES IGNORING THE FACTS THAT EXPENSES ARE REQUIRED TO BE INCURRED. HENCE, THE ADDITION OF RS. 20,04,750/ - IS HEREBY DELETED THE GROUND OF APPEAL IS ALLOWED. 12. WE HAVE CONSIDERED REVENUE S ARGUMENTS . WE FIND THAT THE ASSESSEE HAS PLACED NECESSARY EVIDENCE COMPRISING OF FOUR DOCUMENTS FORMING OF LOWER APPELLATE ORDER TO BE ALREADY IN THE ASSESSMENT FILE. THE FACT ALSO REMAINS THAT THE CIT(A) HAS ALREADY DELETED AN IDENTICAL DISALLOWANCE IN ASSESSMENT YEAR 2008 - 09 ON THE I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 9 SAME FACTS AS MADE BY THE ASSESSING OFFICER @ 25%. THE REVENUE NEITHER REFERS TO ANY DOCUMENTARY E VIDENCE NOR DRAWS DISTINCTION ON FACTS IN THE TWO ASSESSMENT YEARS. WE ADOPT JUDICIAL CONSISTENCY IN THESE CIRCUMSTANCES . THIS FOURTH SUBSTANTIVE GROUND IS ALSO DECLINED. 13 . THIS LEAVES US WITH REVENUE S FIFTH AND LAST SUBSTANTIVE GROUND SEEKING TO REVI VE FRIN GE BENEFIT TAX DISALLOWANCE OF R S. 66,103/ - U/S. 40(A)(IC). THE CIT(A) HOLDS THE SAME TO BE ALLOWABLE AS AN EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUSINESS U/S. 37 OF THE ACT. WE ARE OF THE VIEW THAT THE FORMER PROVISIO N IS A SPECIFIC ONE WITH A NON - OBSTA NT E CLAUSE TO SECTION 37. WE HOLD THAT THE SAME PREVAILS OVER SECTION 37 IN THE NATURE OF A GENERAL PROVISION. WE ACCEPT REVENUE S ARGUMENTS. THE IMPUGNED SECTION 40(A)(IC) DISALLOWANCE OF FRINGE BENEFIT TAX OF RS. 66 ,103/ - IS RESTORED. 14 . THIS REVENUE S APPEAL IS PARTLY ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 26 - 02 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMED ABAD : DATED 26 /02 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE I.T.A NO. 1815 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ACIT VS. M/S. KRISHNA CORPORATION 10 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,