The ACIT,B.K.Circle, Mehsana V. Shri Dhirajlal Dayaljibhai Thakkar, Banaskantha

ITA 2147/AHD/2012

• Counselvise Citation: 214720514 RSA 2012
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.2147/ AHD/2012 (ASSESSMENT YEAR 2009-10) ACIT, PALAPUR VS. SHIR DHIRAJLAL DAYALJIBHAI THAKKAR, JUNA GUNJ, BHABHARA TAL. DEODAR PAN/GIR NO. : AAXPT0185C (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI RAHUL KUMAR, SR. DR RESPONDENT BY: NONE DATE OF HEARING: 27.11.2012 DATE OF PRONOUNCEMENT: 14.12.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDE R OF LD. CIT(A) XX, AHMEDABAD DATED 31.07.2012 FOR THE ASSESSMENT Y EAR 2009-10. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE U/S, 40(A)(IA) COMMISSION EXPENSES RS. 25,48,084/-, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD, COMMISSIONER OF. INCOME-TAX (APPEALS)-XX, AHMEDABAD AUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. IT IS THEREFORE, PRAYED THAT THE ORDER OF THE LD, C OMMISSIONER OF INCOME-TAX (APPEAL)-XX, AHMEDABAD MAY BE SET-ASIDE AND, THAT OF THE ASSESSING OFFICER BE RESTORED. . 3. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE A PPOINTED DATE OF HEARING IN SPITE OF THE NOTICE AND HENCE, WE PROCEE D TO DECIDE THIS APPEAL I.T.A.NO. 2147 /AHD/2012 2 OF THE REVENUE AFTER HEARING THE LD. D.R. AND ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD. LD. D.R. SUPPORTED THE ASSESS MENT ORDER. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. D. R. AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND T HAT THIS ISSUE WAS DECIDED BY LD. CIT(A) IN FAVOUR OF THE ASSESSEE AS PER PARA 4.2 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF RE ADY REFERENCE:- 4.2. THIS ISSUE IS SQUARELY COVERED BY THE DECISIO N DTD. 23.03.2012 OF THE AHMEDABAD TRIBUNAL IN THE CASE OF KANUBHAI RAMJIBHAI MAKWANA VS. ITO, WARD-1, ANAND (135 TTJ36 4). IN THE SAID ORDER, IT WAS HELD AS FOLLOWS :- '7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND ORDERS PASSED BY THE AUTHOR ITIES BELOW. THE ISSUE INVOLVED IN THE PRESENT APPEAL HAS NOW BEEN DECIDED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT V. VIRGIN CREATORS IN GA NO.3200/2011 DATED 23.11.2011 AGAINST THE REVENUE. HOWEVER, IT IS NOTE WORTHY THAT THE SPECIAL BENCH OF ITAT MUMBAI IN THE CASE O F BHARATI SHIPYARD LTD. V. DCIT IN IT A NO.2404/MUM/2 009 IN ORDER DATED 12-09-2011 HAS TAKEN A VIEW THAT THE AMENDMENT IS PROSPECTIVE IN NATURE AND WOULD APPLY ACCORDINGLY. RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF VIRGIN CREATORS (SUPRA) THE ORDER OF LD. CIT (A) IS NOT SUSTAINABLE. HENCE, THIS GROUND OF ASSESSEE'S APPEAL IS ALLOWED. THE ASSESSI NG OFFICER IS DIRECTED TO DELETE THE DISALLOWANCE OF RS.3,69,568/- AS MADE U/S.40(A)(IA) OF THE ACT.' IN THE INSTANT CASE, AS STATED BY THE AO HIMSELF IN THE ASSESSMENT ORDER, APPELLANT DEDUCTED TAX ON THE IMPUGNED EXPEN DITURE DURING THE PREVIOUS YEAR AND CREDITED IT TO THE GOVERNMENT IN JULY, 2009 (I.E. BEFORE THE DUE DATE FOR FILING RETURN OF INCO ME). RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL, THE D ISALLOWANCE MADE BY THE AO IS DELETED. THESE GROUNDS OF APPEAL ARE ALLOWED. 5. AS PER ABOVE PARA OF THE ORDER OF LD. CIT(A), WE FIND THAT LD. CIT(A) HAS FOLLOWED THE TRIBUNAL DECISION RENDERED IN THE CASE OF KANUBHAI RAMHJIBHAI MAKWNA VS ITO (SUPRA) AND ALSO THE JUDGEMENT OF HONBLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF VIRGIN CREATORS (SUPRA). HE HAS ALSO GIVEN HIS FINDING THAT EVEN A S PER THE A.O., TDS WAS I.T.A.NO. 2147 /AHD/2012 3 DEPOSITED BY THE ASSESSEE IN JULY 2009 I.E. BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. UNDER THESE FACTS AND LEGA L PROPOSITION, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CI T(A). 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 7/12/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7/12/12.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 14/12/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.14/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14/1 2/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .