ACIT, Pune V. Poonawalla Fashions P.Ltd, Pune

ITA 1848/PUN/2012

• Counselvise Citation: 184824514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.1848/PN/2012 A.Y. 2007-08 ACIT, CIRCLE-4, PUNE APPELLANT VS. POONAWALLA FASHIONS PVT. LTD., 212, OFF SOLI POONAWALLA ROAD, HADAPSAR, PUNE - 411028 PAN: AADCP2684F RESPONDENT APPELLANT BY : SHRI S.P. W ALIMBE RESPONDENT BY : SHRI NIK HIL PATHAK DATE OF HEARING: 09.01.2014 DATE OF ORDER : 15.01.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-II, [SHORT C IT(A)-II] PUNE, DATED 23.05.2012 FOR A.Y. 2007-08 ON THE FOLLOWING GROUNDS. 1. WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE U/S.40(A)(IA) BY HOLDING THAT TDS DISALLOWANCE APPL IES ONLY TO AMOUNTS PAYABLE AS ON 31 ST MARCH AND NOT TO AMOUNTS ALREADY PAID DURING THE YEAR? 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 2. AT THE OUTSET, THE LEARNED AUTHORIZED REPRESENTA TIVE HAS POINTED OUT THAT THIS ISSUE IS COVERED BY THE ORDER OF ITAT, COCHIN BENCH IN THE CASE OF SHRI ANTONY D. MUNDACKA L VS. ACIT, 2 VIDE ITA ORDER NO.38/COCH/2013, DATED 29.11.2013 WI TH REGARD TO APPLICABILITY OF SECOND PROVISO TO SECTION 40(A) (IA) OF I.T. ACT, WHEREIN IT WAS OBSERVED AS UNDER: 7.4 THE LAST CONTENTION OF THE ASSESSEE IS THAT TH E SECOND PROVISO TO SEC. 40(A)(IA) OF THE ACT, INSERTED BY T HE FINANCE ACT, 2012 WITH EFFECT FROM 1.4,2013 IS CLARIFICATOR Y IN NATURE AND HENCE THE BENEFIT OF THE SAME SHOULD BE APPLIED RETROSPECTIVELY. HOWEVER, THE CORRECTNESS OF THIS C ONTENTION HAS NOT BEEN EXAMINED BY THE TAX AUTHORITIES. HENCE, IN THE INTEREST OF NATURAL JUSTICE, WE ARE O F THE VIEW THAT THIS CONTENTION OF THE ASSESSEE REQUIRES EXAMI NATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE M ODIFY THE ORDER OF THE LD CIT(A) AND SET ASIDE THIS GROUND TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ABOVE SAID CONTENTION OF THE ASSESSEE AND DECIDE THE SAME IN ACCORDANCE WITH THE LAW, AFTER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD. WE MAKE IT CLEAR THAT W E HAVE, IN EFFECT, REJECTED ALL THE CONTENTIONS OF THE ASSE SSEE EXCEPT THE GROUND RELATING TO APPLICABILITY OF THE SECOND PROVISO TO SEC. 40(A)(IA) OF THE ACT TO THE YEAR UNDER CONSIDE RATION. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 4. NOTHING CONTRARY WAS BROUGHT ON BEHALF OF REVENU E. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, THE MATTER IS SET ASIDE TO THE CONCERNED ASSESSING OFFICER IN THE LIG HT OF ABOVE LEGAL DECISION. SINCE WE ARE RESTORING THE ISSUE ON PREL IMINARY ISSUE, WE ARE REFRAINING FROM COMMENTING ON THE MERIT OF T HE ISSUE AT HAND. 5. IN THE RESULT, APPEAL FILED BY REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 15 TH OF JANUARY, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER 3 PUNE, DATED: 15 TH JANUARY, 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-II, PUNE 4) THE CIT-II, PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE