The ITO, Ward-5(4), Baroda V. Shri Chirag Parshottambhai Patni, Baroda

ITA 2306/AHD/2009

• Counselvise Citation: 230620514 RSA 2009
• Duration Of Justice: 2 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 28-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Assessee Lawyers: S N SOPARKAR

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !'# !'# !'# !'#, , , , $ $ $ $ %& %& %& %& , , , , &' ( & &' ( & &' ( & &' ( & # # # # BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.2306/AHD/2009 [ASSTT.YEAR : 2005-2006] ITO, WARD-5(4) BARODA. /VS. SHRI CHIRAG PARSHOTTAMBHAI PATNI PROP. CHIRAG CARRYING CORPORATION B-1, PARVATINAGAR SOCIETY HARNI, WARASIA, BARODA. PAN : ADUPP 2470 N ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ( . / &/ REVENUE BY : SHRI RAHUL KUMAR, SR.DR 1% . / &/ ASSESSEE BY : SHRI S.N.SOPARKAR 2 . %3'/ DATE OF HEARING : 29 TH FEBRUARY, 2012 456 . %3'/ DATE OF PRONOUNCEMENT : 02-03-2012 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME TAX (APPEALS)-V, BARODA DATED 08.05.2009 FOR THE AS SESSMENT YEAR 2005-2006. ITA NO.2306/AHD/2009 -2- 2. THE ONLY GROUND RAISED IN THIS APPEAL OF THE REV ENUE READS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 1,01,72,971/- DISALLOWANCE U/S.40(A)(IA) OF THE IT ACT, 1961 DESP ITE THE CLEAR- CUT PROVISIONS OF SECTION 194C(3)(I) TO THE EFFECT THAT TAX HAS TO BE DEDUCTED IF AGGREGATE AMOUNT OF SUCH SUMS CREDIT ED OR PAID OR LIKELY TO BE PAID OR CREDITED EXCEEDS RS.50,000/ - 3. THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS P AID MORE THAN RS.50,000/- TO INDIVIDUAL PARTIES DURING THE RELEVA NT PERIOD ON ACCOUNT OF PAYMENT TO SUB-CONTRACTORS WITHOUT MAKING ANY TD S, AND THEREFORE, THE DISALLOWANCE WAS RIGHTLY MADE UNDER SECTION 40(A)(IA) OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE LIMIT OF RS.50,000/- FOR PAYMENT IN AGGREGATE DURIN G THE YEAR TO INDIVIDUAL PARTIES WAS INTRODUCED BY AMENDMENT IN L AW W.E.F. 1-10- 2004 AND THE PAYMENT IN QUESTION OF RS.1,01,72,971/ - RELATES TO THE PERIOD UPTO 30-9-2004, AND THEREFORE, THE AMENDED P ROVISION OF LAW DOES NOT APPLY AND THE ADDITION WAS RIGHTLY DELETED BY THE CIT(A). THE LEARNED DR, IN HIS REJOINDER, SUBMITTED THAT TH E ASSESSEE HAS NOT LED ANY EVIDENCE TO SHOW THAT ALL THE PAYMENTS TO S UB-CONTRACTORS WERE LESS THAN RS.20,000/- AND THE ASSESSEE HAS NOT PRODUCED THESE EVIDENCES BEFORE THE AO AND IT SEEMS THAT THE EVIDE NCES WERE PLACED FOR THE FIRST TIME BEFORE THE CIT(A) WHICH NEED VER IFICATION BY THE AO. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDERS OF THE AO AND THE CIT(A). WE FIND THAT THE AGGREGATE LIMIT TO INDIVIDUAL SUB-CONTRACTORS FOR THE PURPOSE OF TDS W AS INTRODUCED BY AMENDMENT IN LAW W.E.F. 1-4-2004, AND THEREFORE, DO ES NOT APPLY ON THE PAYMENT MADE BY THE ASSESSEE UPTO 30-9-2004. H OWEVER, THERE IS ITA NO.2306/AHD/2009 -3- NO FINDING IN THE ASSESSMENT ORDER ON THE ISSUE THA T WHETHER EACH INDIVIDUAL PAYMENT TO THE SUB-CONTRACTORS WAS LESS THAN RS.20,000/- OR OTHERWISE. THE ASSESSEE HAS CLAIMED THAT IT HAS FIL ED NECESSARY EVIDENCES BEFORE THE CIT(A) AND HE HAS VERIFIED THE SAME WHILE ALLOWING RELIEF TO THE ASSESSEE. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE IN THE INTEREST OF JUSTICE TH AT THE ISSUE IN THE GROUND OF APPEAL OF THE REVENUE IS RESTORED TO THE FILE OF THE AO WITH DIRECTION TO VERIFY THESE FACTS AND IN CASE EACH PA YMENT MADE TO THE SUB-CONTRACTORS OUT OF TOTAL AMOUNT OF RS.1,01,72,9 71/- REPRESENTING THE TRANSPORTATION CHARGES UPTO 30-9-2004 IS LESS T HAN RS.20,000/-, THEN TO ALLOW THE SAME AND NOT TO MAKE ANY DISALLOW ANCE ON THIS ISSUE. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !'# !'# !'# !'# /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD