ITO wd- 4[5], Pune V. M/s Gaurimal Mahajan & Sons, Pune

ITA 1852/PUN/2012

• Counselvise Citation: 185224514 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• 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
• Section: 194C; 201(1); 6

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. 1852/PN/2012 (ASSTT.YEAR : 2008-09) ITO, WARD-4(5), PUNE .. APPELLANT VS. M/S. GAURIMAL MAHAJAN & SONS, 12, SHOLAPUR ROAD, PUNE-411001 PAN NO. AABFG0524G .. RESPONDENT APPELLANT BY : SHRI S.P. WALIMBE RESPONDENT BY : SHRI NIKHIL PATHAK & SHRI SUHAS BORA DATE OF HEARING : 01-01-2014 DATE OF PRONOUNCEMENT : 06-01-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 11-05-2012 OF THE CIT(A)-II, PUNE RELATING TO ASSES SMENT YEAR 2008-09. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER : WHETHER ON FACTS AND CIRCUMSTANCES OF THE CASE, THE L D.CIT(A) WAS JUSTIFIED IN DELETING THE DISALLOWANCE U/S.40(A)(IA) BY HOLDING THAT TDS DISALLOWANCE APPLIES ONLY TO AMOUNTS PAYABLE AS ON 31 ST MARCH AND NOT TO AMOUNTS ALREADY PAID DURING THE YEAR? 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION ESPEC IALLY WITH GOVERNMENT DEPARTMENTS. IT FILED ITS RETURN OF INCOME ON 29-0 9-2008 DECLARING NIL INCOME AFTER ADJUSTING BROUGHT FORWARD LOSS OF RS.1 ,16,684/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFI CER OBSERVED FROM THE AUDIT REPORT U/S.44AB THAT THE AUDITORS HAVE REPORT ED IN COLUMN 2 NO.27(B)(II) THAT 2% TAX DEDUCTIBLE ON RS.58,81,847 /- HAS NOT BEEN DEDUCTED AT ALL. HENCE, THE SAID AMOUNT QUALIFIES FOR DISALLOWANCE U/S.40(A)(IA) OF THE I.T. ACT., HOWEVER, THE ASSESS EE HAS NOT ADDED BACK THE SAID AMOUNT OF RS.58,81,847/- IN THE COMPUTATION OF INCOME. THE ASSESSING OFFICER, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN THE SAME AND FURNISH THE DETAILS OF PAYMENT ON WHICH THE TAX HAS NOT BEEN DEDUCTED INCLUDING THE ADDRESS OF THE PERSONS TO WHOM THE LA BOUR CHARGES ARE PAID. THE ASSESSEE FURNISHED SUCH DETAILS. 3.1 HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIE D WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT T HE ASSESSEE HAS FAILED TO DEDUCT THE TAX AS PER PROVISIONS OF SECTION 194C OF THE I.T. ACT, 1961 DEDUCTIBLE ON RS.58,81,847/- BEING THE LABOUR CHARG ES PAID. APPLYING THE PROVISIONS OF SECTION 40(A)(IA) THE ASSESSING OFFIC ER DISALLOWED AN AMOUNT OF RS. 58,81,847/- ON WHICH TAX HAS NOT BEEN DEDUCT ED AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 4. IN APPEAL THE LD.CIT(A) FOLLOWING THE DECISION O F THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND TRANSPORT REPORTED IN 70 DTR 81 (VISAKHAPATNAM) (SB) DELETED THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS ALREADY PAID THE LABOUR CHARGES TO THE VARIOUS PERSONS AND NO AMOUNT REMAINS PAYABLE AS ON 31 ST MARCH. THEREFORE, THE PROVISIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE SINCE NOTHING REMAINS PAYABLE AT THE END OF THE ACCOUNTIN G YEAR. 4.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US. 3 5. THE LD. DEPARTMENTAL REPRESENTATIVE REFERRING TO THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF VINAY ASH WINIKUMAR JONEJA VS. ITO VIDE ITA NO.1514/PN/2012 ORDER DATED 22-10-2 013 SUBMITTED THAT THE COORDINATE BENCH OF THE TRIBUNAL IN THE SAID DE CISION HAS HELD THAT PROVISIONS OF SECTION 40(A)(IA) ARE APPLICABLE EVEN IF NOTHING REMAINS PAYABLE IF THE ASSESSEE HAS NOT DEDUCTED ANY TAX ON THE AMOUNTS WHICH HAS ALREADY BEEN PAID. THEREFORE, THE ORDER OF THE CIT (A) HAS TO BE REVERSED AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE R ESTORED. 6. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND REFERRING TO THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF ITO VS. M/S. THEEKATHIR PRESS VIDE ITA NO.2076/MDS/2012 AND CO N O.155/MDS/2013 ORDER DATED 18-09-2013 FOR A.Y. 2009-10 SUBMITTED T HAT THE TRIBUNAL IN THE SAID DECISION, FOLLOWING THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. REPORTED IN 88 I TR 192 HAS HELD THAT DISALLOWANCE U/S.40(A)(IA) APPLIES ONLY TO THOSE AM OUNTS WHICH ARE PAYABLE AND NOT TO THOSE AMOUNTS ALREADY PAID. WHILE PASSIN G THIS ORDER, THE TRIBUNAL HAS CONSIDERED THE DECISIONS OF DIFFERENT HIGH COURTS BOTH FOR AND AGAINST THE ASSESSEE ON THIS ISSUE. HE ACCORDINGLY SUBMITTED THAT IN VIEW OF THE ABOVE DECISION THE ORDER OF THE CIT(A) BEING IN CONSONANCE WITH THE DECISION OF THE CHENNAI BENCH OF THE TRIBUNAL IN TH E CASE OF M/S. THEEKATHIR PRESS (SUPRA) BE UPHELD. 6.1 IN HIS ALTERNATE CONTENTION, THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE FINANCE ACT, 2010 HAS AMENDED TH E FIRST PROVISO TO SECTION 40(A)(IA) W.E.F. 01-04-2010. REFERRING TO THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF KANH UBHAI RAMJI BHAI 4 REPORTED IN 135 TTJ 364 AND THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. VIRGIN CREATIONS VIDE ITA NO.3 02/2011 HE SUBMITTED THAT IT HAS BEEN HELD IN THE SAID DECISIONS THAT TH E SAID AMENDMENT IS RETROSPECTIVE IN NATURE ON THE REASONING THAT IT IS CLARIFICATORY IN NATURE. IT WAS INTRODUCED TO ELIMINATE UNINTENDED CONSEQUENCES . HE SUBMITTED THAT THE SECOND PROVISO IN SECTION 40(A)(IA) WAS INSERTE D BY THE FINANCE ACT, 2012 W.E.F. 01-04-2013 WHEREIN IT IS STATED THAT TH E DISALLOWANCE U/S.40(A)(IA) OF THE ACT NEED NOT BE MADE IF THE AS SESSEE IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO S ECTION 201(1) OF THE I.T. ACT. HE SUBMITTED THAT THE AFORESAID PROVISO WHICH WAS MADE EFFECTIVE FROM 01-04-2013 SHOULD BE APPLIED RETROSPECTIVELY S INCE IT HAS BEEN INTRODUCED TO ELIMINATE UNINTENDED CONSEQUENCES WHI CH MAY CAUSE UNDUE HARDSHIP TO TAX PAYERS. 6.2 REFERRING TO THE DECISION OF THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF ANTONY D. MUNDACKAL VS. THE ACIT VIDE ITA N O.38/COCH/2013 ORDER DATED 29-11-2013 FOR A.Y. 2009-10 HE SUBMITTE D THAT THE TRIBUNAL AFTER THOROUGHLY CONSIDERING THE ISSUE HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIONS. HE SUBMITTED THAT SINCE THE ASSESSEE IS ARGUING THIS ASPECT FOR THE FIRST TIME BEFORE THE TRIBUNAL WHICH HAS NOT BEEN RAISED BEFORE THE LOWER AUTHORITIES, T HEREFORE, HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE IN THE LIGHT OF THE DIRECTION OF T HE TRIBUNAL. 7. THE LD. DEPARTMENTAL REPRESENTATIVE IN HIS REJOI NDER STRONGLY OPPOSED THE NEW ARGUMENTS BEING ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. HE, HOWEVER, SUBMITTED THAT IT IS UPTO T HE DISCRETION OF THE BENCH 5 TO TAKE A VIEW AS TO WHETHER THE MATTER SHOULD BE R ESTORED TO THE FILE OF THE ASSESSING OFFICER. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS BROUGHT TO OUR NOTICE BY BOTH THE SIDES. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS NOT DEDUCTED TDS ON AN A MOUNT OF RS.58,81,847/- FOR WHICH THE ASSESSING OFFICER APPLYING THE PROVIS IONS OF SECTION 40(A)(IA) MADE ADDITION OF THE ABOVE AMOUNT. WE FIND THE LD. CIT(A) DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUN D THAT PROVISIONS OF SECTION 40(A)(IA) ARE NOT APPLICABLE SINCE NO AMOUN T IS PAYABLE AT THE END OF THE YEAR. WHILE DOING SO, HE RELIED UPON THE DECIS ION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MERILYN SHIPPING AND TRANSPORT (SUPRA). THE COORDINATE BENCH IN THE CASE OF VINAY ASHWINIKUMAR JONEJA (SUPRA) HAS ALREADY TAKEN A VIEW THAT PROVISIONS OF SECTION 40( A)(IA) ARE APPLICABLE EVEN IF NO AMOUNT IS PAYABLE AT THE END OF THE YEAR. TH EREFORE, THE ORDER OF THE CIT(A) HAS TO BE REVERSED. 8.1 HOWEVER, THE ASSESSEE HAS MADE A NEW LEGAL ARGU MENT THAT THE FINANCE ACT, 2010 HAS AMENDED THE FIRST PROVISO TO SECTION 40(A)(IA) W.E.F. 01-04-2010 AND IT HAS BEEN HELD BY VARIOUS JUDICIAL AUTHORITIES THAT SUCH AMENDMENT IS RETROSPECTIVE IN NATURE. IT IS THE SU BMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE SECOND PROVISO TO SECTION 40(A)(IA) WAS INSERTED BY THE FINANCE ACT, 2012 W.E.F. 01-04-2013 WHEREIN IT IS STATED THAT DISALLOWANCE U/S.40(A)(IA) OF THE ACT NEED NOT BE M ADE IF THE ASSESSEE IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE FIRST PROVISO TO SECTION 201(1) 6 OF THE I.T. ACT., THEREFORE, THIS SHOULD ALSO BE HE LD AS RETROSPECTIVE SINCE IT HAS BEEN INTRODUCED TO ELIMINATE UNINTENDED CONSEQU ENCES WHICH MAY CAUSE UNDUE HARDSHIP TO THE TAX PAYERS. 8.2 WE FIND SOME FORCE IN THE ABOVE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF ANTONY D. MUNDACKAL (SUPRA) RELIED ON BY LD. COUNSEL FOR T HE ASSESSEE, HAD AN OCCASION TO DECIDE AN ISSUE IN THE LIGHT OF THE ABO VE ARGUMENT AND HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFF ICER WITH CERTAIN DIRECTIONS. THE RELEVANT OBSERVATION OF THE TRIBUNAL AT PARA 7 OF THE ORDER READ AS UNDER: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFUL LY PERUSED THE RECORD. ACCORDING TO THE ASSESSEE, THERE IS NO WRITTEN C ONTRACT BETWEEN HIM AND THE PERSONS DOING POLISHING WORKS. ACCORDINGLY, THE ASSESSEE HAS CONTENDED BEFORE US THAT THE PROVISIONS OF SEC. 194C SHA LL NOT APPLY TO THE POLISHING CHARGES. HOWEVER, WE NOTICE THAT THE ASSESSING OFFICER HAS GIVEN A CLEAR FINDING THAT ESSENTIAL INGREDIENTS OF A CONTRACT ARE VERY MUCH AVAILABLE IN THE POLISHING WORKS ENTRUSTED BY THE ASSESSEE. FURTHER WE NOTICE THAT THE CBDT, VIDE CIRCULAR NO.433 DATED 25-09-1985 (1986)( 157 ITR ST. 27) HAS CLARIFIED THAT THE PROVISIONS OF SEC. 194C ARE WIDE EN OUGH TO COVER ORAL CONTRACTS ALSO. A CONTRACT IS NORMALLY REDUCED IN WRIT ING IN ORDER TO MAKE CLEAR THE TERMS AND CONDITIONS, OBLIGATIONS OF THE PAR TIES TO THE CONTRACT ETC. IF THE CONDITIONS OF CONTRACT ARE OTHERWISE UNDERSTOOD BY THE PARTIES, IN VIEW OF THE REPEATED TRANSACTIONS, IN OUR VIEW, THE A BSENCE OF A WRITTEN CONTRACT WOULD NOT MAKE ANY DIFFERENCE. IN THE INSTA NT CASE, THE ASSESSEE IS REPEATEDLY GIVEN WORKS TO THE POLISHING PEOPLE AND HE NCE THE TERMS AND CONDITIONS OF THE WORK WOULD BE CLEARLY UNDERSTOOD BY BOTH THE PARTIES. ACCORDINGLY, WE REJECT THIS CONTENTION OF THE ASSESSEE A ND HOLD THAT THE PROVISIONS OF SEC. 194C SHALL APPLY TO THE POLISHING WOR KS GIVEN BY THE ASSESSEE. 7.1 ACCORDING TO LD A.R, THE ASSESSEE HAS ACTED AS A CON DUIT PIPE IN CONNECTION WITH THE POLISHING WORKS BETWEEN THE CUSTOM ERS AND THE PERSON DOING POLISHING JOB. ACCORDINGLY, IT WAS SUBMITTED THA T THERE IS NO PROFIT ELEMENT IN THE SAID TRANSACTIONS. THE LD A.R FURTHER SU BMITTED THAT THE ASSESSEE HAS INCLUDED THE COST OF POLISHING WORKS IN THE SAL E VALUE OF ALUMINIUM EXTRUSIONS, WITHOUT KNOWING TAX IMPLICATION S. HOWEVER, WE NOTICE THAT THE ASSESSEE DID NOT FURNISH ANY PROOF TO SUB STANTIATE THE ABOVE SAID CLAIMS. THE ASSESSEE, BEING A DEALER IN ALUMINIUM EX TRUSIONS, HAS ONLY SUPPLIED THE PRODUCTS AFTER CARRYING OUT THE POLISHING WORKS ACCORDING TO THE TASTE AND REQUIREMENT OF CUSTOMERS. IT IS ONLY ONE OF THE MANY BUSINESS TECHNIQUES NORMALLY ADOPTED BY A BUSINESS MAN TO IMPROV E HIS SALES, SINCE IT WILL BE VERY DIFFICULT FOR CUSTOMERS TO IDENTIFY T HE POLISHING PEOPLE AND GET THE WORK DONE BY THEMSELVES. HENCE, WE ARE OF THE VIE W THAT IT MAY NOT BE CORRECT TO ARGUE THAT THE CONTRACT EXISTED BETWEEN T HE CUSTOMERS AND THE 7 POLISHING PEOPLE. IN FACT, THE CUSTOMER MAY NOT HAVE ANY CONTACT WITH THE POLISHING PEOPLE IN THIS TYPE OF TRANSACTIONS. HENCE, IT IS HARD TO BELIEVE THE CLAIM OF THE ASSESSEE THAT HE HAS ACTED AS MERE CONDUIT P IPE BETWEEN THE CUSTOMERS AND POLISHING PEOPLE, ACCORDINGLY, THE CLAIM THAT THE ASSESSEE STANDS IN A FIDUCIARY CAPACITY IS ALSO LIABLE TO BE REJ ECTED. IN THIS KIND OF FACTUAL SITUATION, IN OUR VIEW, THE EXISTENCE OR ABSEN CE OF PROFIT ELEMENT IN THE POLISHING WORKS DOES NOT MAKE ANY DIFFERENCE. 7.2 THE LD COUNSEL, BY PLACING RELIANCE ON THE DECI SION OF SPECIAL BENCH IN THE CASE OF MERYLINE SHIPPING AND TRANSPORTS (SUPRA) CONTENDED THAT THE PROVISIONS OF SEC. 40(A)(IA) SHALL APPLY ONLY TO AMOUNT PAYABLE AND NOT TO THE AMOUNT PAID. HOWEVER, THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SIKANDAR KHAN N TUNVAR (357 ITR 312) AND THE HON 'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. CRESCENT EXPORT SYNDICATE (ITAT 20 OF 2013) HAVE HELD THAT THE DECISION RENDERED BY THE SPECIAL BENCH IN THE CASE OF MERYLINE SHIPPING & TRANSPORTS IS NOT A GOOD LAW. THE LD A.R, HOWEVER, PLACED RELIANCE ON THE DECISION OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES (357 ITR 642). ON A CARE FUL PERUSAL OF THE DECISION GIVEN BY HON'BLE ALLAHABAD HIGH COURT, WE N OTICE THAT THE HIGH COURT HAS DECIDED THE ISSUE REFERRED TO IT ON A DIFFER ENT FOOTING AND HAS MADE A PASSING COMMENT ABOUT THE DECISION RENDERED BY THE SPECIAL BENCH. THUS, THE RATIO OF THE SAID DECISION IS DIFFERENT FROM THAT RENDERED IN THE CASE OF MERYLINE SHIPPING AND TRANSPORTS BY THE SPECIA L BENCH. HENCE, WE ARE INCLINED TO REJECT THE CONTENTIONS OF THE ASSESSEE ON THIS POINT ALSO. 7.3 THE ASSESSEE PLACED RELIANCE ON THE DECISION OF HON 'BLE SUPREME COURT IN THE CASE OF HINDUSTAN COCO-COLA BEVERAGES LTD (SUPRA) IN ORDER TO CONTEND THAT THE REVENUE IS NOT ENTITLED TO RECOVER TAXES, IF THE RECIPIENT HAS DECLARED THE PAYMENTS IN HIS RETURN OF INCOME. WE NO TICE THAT THE ABOVE SAID DECISION WAS RENDERED IN THE CONTEXT OF THE PROVI SIONS OF SEC. 201(1) AND HENCE, WE ARE OF THE VIEW THAT THE RATIO OF THE SAID DECISION CANNOT BE APPLIED TO THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT, 7.4 THE LAST CONTENTION OF THE ASSESSEE IS THAT THE SECON D PROVISO TO SEC, 40(A)(IA) OF THE ACT, INSERTED BY THE FINANCE ACT, 2 012 WITH EFFECT FROM 1.4.2013 IS CLARIFICATORY IN NATURE AND HENCE THE BE NEFIT OF THE SAME SHOULD BE APPLIED RETROSPECTIVELY. HOWEVER, THE CORRECTNESS O F THIS CONTENTION HAS NOT BEEN EXAMINED BY THE TAX AUTHORITIES. HENCE, IN THE INTEREST OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT THIS CONTENTION OF T HE ASSESSEE REQUIRES EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCOR DINGLY, WE MODIFY THE ORDER OF THE LD.CIT(A) AND SET ASIDE THIS GROUND TO TH E FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ABOVE SAID CONTENTION OF THE ASSESSEE AND DECIDE THE SAME IN ACCORDANCE WITH LAW, AFT ER AFFORDING NECESSARY OPPORTUNITY OF BEING HEARD. WE MAKE IT CLE AR THAT WE HAVE, IN EFFECT, REJECTED ALL THE CONTENTIONS OF THE ASSESSEE EXC EPT THE GROUND RELATING TO APPLICABILITY OF THE SECOND PROVISO TO SEC .40(A)(IA) OF THE ACT TO THE YEAR UNDER CONSIDERATION. 8.3 SINCE THE ABOVE ARGUMENTS ARE BEING ADVANCED BE FORE THE TRIBUNAL FOR THE FIRST TIME AND THE CORRECTNESS OF THE CONTE NTION HAS NOT BEEN EXAMINED BY THE TAX AUTHORITIES, THEREFORE, RESPECT FULLY FOLLOWING THE DECISION OF THE COCHIN BENCH OF THE TRIBUNAL CITED (SUPRA) AND IN THE 8 INTEREST OF JUSTICE, WE RESTORE THIS ISSUE TO THE F ILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE ABOVE CONTENTION OF THE ASSESSEE AND DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW. NEEDL ESS TO SAY, THE ASSESSING OFFICER SHALL GIVE DUE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 06-01-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER PUNE, DATED : 06 TH JANUARY 2014 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II, PUNE 4. THE CIT-II, PUNE 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE