The ITO, Ward-8(2), Ahmedabad V. Sunshine Tilli Works Pvt.Ltd., Ahmedabad

ITA 2267/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89480 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 19-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Retrospective amendment
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI RAJPAL YADAV, J.M. & SHRI ANIL CHATURV EDI, A.M.) I.T. A. NO. 2267/AHD/2011 (ASSESSM ENT YEAR: 2007-08) I.T.O., WARD-8(2), AHMEDABAD V/S SUNSHINE TILLI WORKS PVT. LTD., 181/1, IYAVA GAM, SANAND, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAICS0388J APPELLANT BY : SHRI NIMESH YADAV, SR. D. R. RESPONDENT BY : NONE ( )/ ORDER DATE OF HEARING : 19-05-201 5 DATE OF PRONOUNCEMENT : 22 -05-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER. 1. THIS APPEAL FILED BY THE REVENUE IS AGAINST THE ORD ER OF CIT(A)-XIV, AHMEDABAD DATED 22.06.2011 FOR A.Y. 2007-08. 2. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED ON BEHALF OF THE ASSESSEE THOUGH AS PER THE OFFICE RECORDS THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE. WE THEREFORE PROCEED TO DECIDE THE APPEAL EX-PARTE QUA THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. ITA NO 2267/ AHD/2011 . A.Y. 2007-0 8 2 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 4. ASSESSEE IS A COMPANY STATED TO BE ENGAGED IN THE B USINESS OF MANUFACTURING AND EXPORT OF HULLED SESAME SEED (TIL LI). ASSESSEE INITIALLY FILED ITS RETURN OF INCOME FOR A.Y. 2007-08 ON 27.1 0.2007 DECLARING TOTAL INCOME OF RS. 6,61,253/- WHICH WAS SUBSEQUENTLY REV ISED ON 28.03.2008 BY CLAIMING BROUGHT FORWARD LOSS ARISING CONSEQUENT TO REVISION OF RETURN OF INCOME OF A.Y. 2006-07. THE CASE WAS SELECTED FOR S CRUTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORDER DATED 11.12.2009 AND THE TOTAL INCOME, AFTER SETTING OFF OF BROUGHT FORWARD LOSSES AND DEPRECIATION WAS DETERMINED AT RS. 10,34,230/-. AG GRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO VIDE ORDER DATED 22.06.2011GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REVENUE IS NOW IN APPEAL BEFOR E US AND HAS RAISED THE FOLLOWING GROUNDS:- 1. THE LD. CIT[A] HAS ERRED AND ON FACTS IN DELETING T HE ADDITION OF RS. 12,39,448/- MADE BY THE ASSESSING OFFICER U/S.40(A)(IA) OF THE IT ACT ON ACCOUNT OF DISALLOWANCE OF PAYMENTS TOWARDS TRANSPORT EXPENSES . 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, A.O NO TICED THAT ASSESSEE HAD DEBITED FREIGHT AND OCTROI EXPENSES OF RS. 40,81,38 6/- WHICH INCLUDED AGGREGATE AMOUNT OF RS. 12,39,448/- (DETAILS OF WHI CH ARE LISTED AT PAGE 4 OF THE ORDER) AND ON WHICH ASSESSEE HAD FAILED TO DEPO SIT THE TDS WHICH WAS DEDUCTED BEFORE THE END OF THE FINANCIAL YEAR. A.O WAS THEREFORE OF THE VIEW THAT THE EXPENSES ON WHICH TDS WAS NOT DEPOSITED BE FORE THE END OF FINANCIAL YEAR WERE LIABLE FOR DISALLOWANCE U/S. 40 (A)(IA) OF THE ACT AND ACCORDINGLY DISALLOWED RS. 12,39,448/-. AGGRIEVED B Y THE ORDER OF A.O., ITA NO 2267/ AHD/2011 . A.Y. 2007-0 8 3 ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO D ELETED THE ADDITION BY HOLDING AS UNDER:- 4.3 I HAVE CAREFULLY PERUSED THE ASSESSMENT ORDER A ND THE WRITTEN SUBMISSION FILED BY THE LD. A.R. OF THE APPELLANT. THE PROVISIONS OF SE CTION 40(A)(IA) HAVE BEEN AMENDED BY THE FINANCE ACT 2008 WITH THE RETROSPECTIVE FACT FR OM 01/04/2005. AS PER THE AMENDED PROVISIONS, IF THE TAX THAT HAS BEEN DEDUCTED HAS B EEN DEPOSITED BEFORE THE DUE DATE OF FILING OF RETURN BY THE ASSESSEE THE DEDUCTION CAN BE CLAIMED BY HIM IN THE PROFIT AND LOSS ACCOUNT. ACCORDINGLY CONSIDERING THE AMENDED POSITI ON OF THE ACT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION AS THE APPELLA NT HAS DEPOSITED THE TDS BEFORE FILING OF RETURN. THE ADDITION MADE BY HIM FOR NON-DEPOSIT OF TDS IS, THEREFORE, DELETED AND THE GROUND OF APPEAL IS ALLOWED. 6. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), REV ENUE IS NOW IN APPEAL BEFORE US. 7. BEFORE US, LD. D.R. RELIED ON ORDER OF A.O. 8. WE HAVE HEARD THE LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS DISALLOWANCE OF EXPENSES U/S. 4 0(A)(IA) ON ACCOUNT OF NON DEPOSIT OF TDS BEFORE THE END OF THE FINANCIAL YEAR . WE FIND THAT LD. CIT(A) AFTER CONSIDERING THE AMENDMENT MADE TO THE PROVISI ONS TO SECTION 40(A)(IA) BY FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01.04.2005 HAD CONCLUDED THAT IF THE TAX HAS BEEN DEPOSITED BEFORE THE DATE OF FILING OF RETURN OF INCOME, NO DISALLOWANCE U/S. 40(A)(IA) WA S CALLED FOR. BEFORE US, REVENUE HAS NOT POINTED OUT ANY CONTRARY BINDING DE CISION IN ITS SUPPORT NOR COULD CONTROVERT THE FINDINGS OF LD. CIT(A). WE THE REFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THI S GROUND OF REVENUE IS DISMISSED. ITA NO 2267/ AHD/2011 . A.Y. 2007-0 8 4 9. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22 - 05 - 2015. SD/- SD/- (RAJPAL YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHM EDABAD