Shri Kamal B.Thakkar, Baroda V. The Income tax Officer,Ward-2(2), Baroda

ITA 2047/AHD/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80538 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-10-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 18-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Keywords: Condonation of delay

Judgement Text

, , , , B, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.2047/AHD/2011 [ASSTT.YEAR : 2006-2007] KAMAL B. THAKKAR 2, B.N. CHAMBER R.C.DUTT ROAD, BARODA. PAN : AAXPT 1031 B /VS. ITO, WARD-2(2) BARODA. ( (( ( *+ *+ *+ *+ / APPELLANT) ( (( ( ,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 & / ASSESSEE BY : NONE ( 0 1 & / REVENUE BY : SHRI V.K. SINGH 3 0 /4' / DATE OF HEARING : 14 TH OCTOBER, 2014 567 0 /4' / DATE OF PRONOUNCEMENT : 25-11-2014 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2006-2007 IS DIRECTED AGAINST THE OR DER OF THE CIT(A), BARODA. 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE-APPELLANT. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS DECIDED EX PARTE QUA THE ASSESSEE- APPELLANT ON MERITS, AFTER HEARING THE LEARNED DR. ITA NO.2047/AHD/2011 -2- 3. THERE IS A DELAY OF 106 DAYS IN FILING THE PRESE NT APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AFFIDAVIT FOR CON DONATION OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL AND HAS EXPLAINED THE CI RCUMSTANCES DUE TO WHICH THERE WAS DELAY OF 106 DAYS. WE HAVE HEARD LEARNED DR ON THIS ISSUE. IN VIEW OF THE CIRCUMSTANCES EXPLAINED BY THE ASSESSEE IN I TS AFFIDAVIT DUE TO WHICH THE DELAY HAS OCCURRED, WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONATION OF DELAY OF 106 DAYS, AND WE DIRECT ACCORDINGLY. 4. THE GROUND NO.1 OF THE ASSESSEESS APPEAL IS AS UNDER: 1.0 THE LD.CIT(A) ERRED IN LAW AND ON FACTS HAS CO NFIRMED THE DISALLOWANCE OF RS.1,96,988/- MADE UNDER SECTION 40 (A)(IA) OF THE IT ACT ON THE GROUND THAT NO TDS WAS DEDUCTED FROM THE SAI D PAYMENT. THELD.CIT(A) OUGHT TO HAVE APPRECIATED THAT THE PA YMENT FOR SUCH EXPENSES WAS FULLY MADE AND HENCE THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT WERE NOT APPLICABLE. 5. THE LEARNED DR REFERRED TO PARA-3 OF THE ASSESSM ENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. HE RELIED ON THE ORDERS O F THE AO AND THE CIT(A). 6. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE DISALLOWANCE WAS MADE UNDER THE PROVISIONS OF SECTION 40(A)(IA) OF THE AC T ON THE GROUND THAT TDS WAS NOT DEPOSITED BEFORE THE END OF THE RELEVANT FINANC IAL YEAR I.E. 31.3.2006. WE FIND THAT THE LEGAL POSITION ON THIS ISSUE IS NOW W ELL SETTLED THAT NO DISALLOWANCE UNDER SECTION 40(A)(IA) OF THE ACT COULD BE MADE IF THE TDS DEDUCTED BY THE ASSESSEE WAS DEPOSITED BEFORE THE DUE DATE OF FILIN G OF THE RETURN OF THE RELEVANT ASSESSMENT YEAR. ACCORDINGLY, THE ISSUE IN THIS GR OUND OF THE APPEAL OF THE ASSESSEE IS RESTORED THE FILE OF THE AO WITH DIRECT ION TO VERIFY, AND IN CASE THE TDS AMOUNT WAS DEPOSITED BEFORE THE DUE DATE OF FIL ING OF THE RETURN FOR THE RELEVANT ASSTT.YEAR 2006-07, NO DISALLOWANCE UNDER SECTION 40(A)(IA) BE MADE. WE DIRECT ACCORDINGLY. ITA NO.2047/AHD/2011 -3- 7. THE GROUND NO.2 OF THE APPEAL OF THE ASSESSEE IS AS UNDER: 2.0 THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CON FIRMING THE ADDITIONS OF RS.15,955/- BEING THE DEMAND RAISED BY ESIC DEPA RTMENT FOR DELAY IN PAYMENT OF DUES. 8. THE LEARNED DR HAS RELIED ON THE ORDER OF THE AO . WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDER S OF THE AO AND THE CIT(A). WE FIND THAT THE AMOUNT OF ESIC DEPARTMENT FOR DELAY IN PAYMENT OF DUES RELATES TO PRIOR PERIOD EXPENDITURE, AND THERE FORE, NOT ALLOWABLE ACCORDINGLY, THE GROUND NO.2 OF THE ASSESSEE IS DIS MISSED. 9. THE GROUND NO.3 OF THE APPEAL OF THE ASSESSEE IS AS UNDER: 3.0 THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF RS.10,059/- BEING 1/10 TH OF THE EXPENDITURE ON ACCOUNT OF TELEPHONE EXPENSES AND VEHICLE EXPENSES AGGREGATING TO RS.1,00,597/- ON THE GROUND OF PERSONAL USE. 10. THE LEARNED DR RELIED ON THE ORDER OF THE AO. WE FIND THAT THE DISALLOWANCE ON ACCOUNT OF TELEPHONE AND VEHICLES E XPENSES WAS MADE AT 10% OF THE TOTAL EXPENDITURE. THE PERSONAL USE OF TELE PHONE AND VEHICLE CANNOT BE COMPLETELY RULED OUT BY THE ASSESSEE, AND THE DISAL LOWANCE AT 10% OF THE EXPENSES COULD NOT BE SAID TO BE EXCESSIVE, AND ACC ORDINGLY, THE GROUND NO.2 OF THE ASSESSEE IS DISMISSED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## # . .. . # ## # . . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT