The DCIT, Circle-2(1)(2), Baroda V. M/s. Mahendra Patel Builders Pvt. Ltd., Baroda

ITA 190/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8340 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ADITI SHETH AR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.190/AHD/2015 ( / ASSESSMENT YEAR : 2008-09) THE DY.CIT CIRCLE-2(1)(2) BARODA / VS. M/S.MAHENDRA PATEL BUILDERS PVT.LTD. KRUSHNADHAM APART ISKON TEMPE ROAD GHOTRI, BARODA 390 005 # ./ ./ PAN/GIR NO. : AABCM 8532 D ( #& / APPELLANT ) .. ( '#& / RESPONDENT ) #&( / APPELLANT BY : SHRI MUDIT NAGPAL, SR.DR '#& )( / RESPONDENT BY : SHRI ADITI SHETH, AR *+ ), / DATE OF HEARING 13/10/2017 -./0 ), / DATE OF PRONOUNCEMENT 16 / 10 /2017 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-III, BARODA [CIT(A) IN SHORT] DATED 11/11/2014 IN THE M ATTER OF ASSESSMENT ORDER PASSED UNDER S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 ITA NO.190/AHD/ 2015 DCIT VS. MAHENDRA PATEL BUILDERS PVT.LTD. ASST.YEAR 2008-09 - 2 - (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 15/11/ 2013 RELEVANT TO ASSESSMENT YEAR (AY) 2008-09. 2. THE ASSESSEE IN ITS GROUNDS OF APPEAL HAVE IMP UGNED ACTION OF THE CIT(A) IN DELETING THE DISALLOWANCE OF RS.30,03,764 /- MADE BY THE ASSESSING OFFICER (AO) BY RESORTING SECTION 40(A)(I A) OF THE ACT EVEN THOUGH THE ASSESSEE HAS FAILED TO DEPOSIT THE TAX D EDUCTED AT SOURCE (TDS) WITHIN STIPULATED TIME PRESCRIBED UNDER THE A CT, WHEREBY THE PROVISIONS OF SECTION 40(A)(IA) ARE ATTRACTED. THE AO NOTED THAT THE TOTAL AMOUNT OF SUCH PAYMENT ON WHICH TDS HAS BEEN DEPOSI TED BELATEDLY WORKS OUT TO RS.30,03,764/-. THE AO ACCORDINGLY AD DED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 3. IN THE FIRST APPEAL, THE CIT(A) RE-EXAMINED THE AFORESAID ISSUE AND FOUND THAT THE BENEFIT OF AMENDMENT UNDER S.40(A)(I A) REQUIRES TO BE GIVEN TO THE ASSESSEE WHERE THE ASSESSEE HAS DEPOSI TED THE TAX SO DEDUCTED BEFORE THE DUE DATE OF FILING OF RETURN. THE RELEVANT PARAS WITH THE ORDER OF THE CIT(A) READ AS UNDER:- 4.2. DURING THE COURSE OF CURRENT APPELLATE PROCEE DINGS, THE APPELLANTS AR ARGUED THE CASE AND MADE WRITTEN SUB MISSIONS. PART OF THE WRITTEN SUBMISSION WAS AGAINST THE REOP ENING OF THE ASSESSMENT. BUT, ON VERIFICATION OF FORM NO.35 FIL ED BY THE APPELLANT, IT SHOWS THAT THE APPELLANT HAS NOT TAKE N ANY GROUND ITA NO.190/AHD/ 2015 DCIT VS. MAHENDRA PATEL BUILDERS PVT.LTD. ASST.YEAR 2008-09 - 3 - AGAINST REOPENING OF THE ASSESSMENT. HENCE, THIS I SSUE IS NOT ADJUDICATED. 4.2.1. SO FAR AS THE DISALLOWANCE U/S.40(A)(IA) OF THE IT ACT, 1961 IS CONCERNED, THE HONBLE GUJARAT HIGH COURT IN ITS DECISION IN THE CASE OF STANDARD BUILDCON 41 TAXMAN.COM 155 (GUJ.) HAS HELD THAT THE AMENDMENT U/S.40(A)(IA) OF THE IT ACT B BR OUGHT OUT BY THE FINANCE ACT, 2010 W.E.F.01.04.2010 IS HAVING RETROS PECTIVE EFFECT AND, THEREFORE, IF THE TAX DEDUCTED IS DEPOSITED BY THE ASSESSEE BEFORE THE DUE DATE OF FILING THE RETURN, THE SAME IS REQUIRED TO BE GIVEN CREDIT IN EVERY ASSESSMENT YEAR. IN THIS CAS E, FROM THE DETAILS REPRODUCED BY THE AO IN HER ASSESSMENT ORDE R, IT IS SEEN THAT THE ENTIRE TDS HAS BEEN DEPOSITED LATEST BY 31 .05.2008. HENCE, FOLLOWING THE DECISION OF JURISDICTIONAL HIG H COURT, THE DISALLOWANCE MADE BY THE AO OF RS.30,03,764/- U/S.4 0(A)(IA) OF THE IT ACT IS DIRECTED TO BE DELETED. 4. WITH THE ASSISTANCE OF THE LEARNED REPRESENTATIV ES OF THE ASSESSEE AND REVENUE, WE FIND THAT THERE IS NO DISPUTE ON TH E FACT THAT TDS HAS BEEN DEDUCTED ON PAYMENTS MADE TO VARIOUS PARTIES H AVE BEEN ULTIMATELY DEPOSITED BEFORE THE DUE DATE OF FILING OF RETURN O F INCOME ALBEIT BELATEDLY IN SOME CASES. THIS BEING SO, THE CASE O F THE ASSESSEE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE GUJ ARAT HIGH COURT IN STANDARD BUILDCON 41 TAXAMN.COM 155 (GUJ.) RELIED U PON BY THE CIT(A). THUS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). ITA NO.190/AHD/ 2015 DCIT VS. MAHENDRA PATEL BUILDERS PVT.LTD. ASST.YEAR 2008-09 - 4 - 5. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. THIS ORDER PRONOUNCED IN OPEN COURT ON 16 / 1 0 /201 7 SD/- SD/- ( ) ( ) ( MAHAVIR PRASAD ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 16/ 10 /2017 4..*,.*../ T.C. NAIR, SR. PS !'#$#! / COPY OF THE ORDER FORWARDED TO : 1. #& / THE APPELLANT 2. '#& / THE RESPONDENT. 3. 567, 8, / CONCERNED CIT 4. 8, ( ) / THE CIT(A)-III, BARODA 5. 9:;,*67 , 67 0 , 5 / DR, ITAT, AHMEDABAD 6. ;<+ / GUARD FILE. / BY ORDER, '9,, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 13.10.17 (DICTATION-PAD P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13.10.17 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .16.10.17 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 16.10.17 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER