ACIT CIR 25(3), MUMBAI V. RAMESH K CHHEDA, MUMBAI

ITA 2447/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70780 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C S BIRADAR
• Assessee Lawyers: SHEKHAR L GAJBHIYE
• Section: 133(6)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL D DD D BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . , . , ! ! ! ! '# '# '# '# BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI D. KARUNAKAR RAO D. KARUNAKAR RAO D. KARUNAKAR RAO D. KARUNAKAR RAO, AM , AM , AM , AM ./ I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.2447/MUM/2012 2447/MUM/2012 2447/MUM/2012 2447/MUM/2012 ( $% $% $% $% & & & & / ASSESSMENT YEAR : 2008-09) ACIT 25(3) 308, C-11, BANDRA-KURLA COMPLEX, BANDRA (E) MUMBAI-400051 % % % % / VS. SHRI RAMESH CHHEDA 9/A, JAY SUKH SAGAR, M.G. ROAD, KANDIVALI (W) MUMBAI-400067 #' ! ./ ( ./ PAN/GIR NO. : AEUPC4903L ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ') ') ') ') , , , , / APPELLANT BY : SHRI C. S. BIRADAR *+') *+') *+') *+') - -- - , , , , /RESPONDENT BY : SHRI SHEKHAR L. GAJBHIYE % % % % - -- - .! .! .! .! / DATE OF HEARING : 7 TH AUGUST 2013 /0& /0& /0& /0& - -- -.! .! .! .! /DATE OF PRONOUNCEMENT: 14 TH AUGUST 2013 ' 1 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 27.1.2012 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2008-09. 2. THE REVENUE HAS RAISED THE ONLY GROUND IN THIS A PPEAL AS UNDER: (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN GIVING RELIEF OF ` 11,83,515/- TO THE ASSESSEE ON THE GROUND THAT PAYMENTS WERE MADE THROUGH ACCOUNT PAYEE CHEQUES. 3. WE HAVE HEARD THE LD. DR AS WELL LD. AR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT AN IDENTICAL ITA NO. 2447/M/2012 RAMESH CHHEDA 2 ISSUE HAS BEEN CONSIDERED AND DECIDED BY THIS TRIBU NAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08 VIDE ORDER DATED 25.4.2012 IN PARA 6 AS UNDER: 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE FACTS ARE NOT IN DISPUTE INASMUCH AS IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS MADE PAYM ENT BY ACCOUNT PAYEE CHEQUES TO MR. ARJUN PANDEY AND M/S P OOJA EARTH MOVERS AND ALSO DEDUCTED TDS. THE AD WITHOUT PROVIDING THE STATEMENT OF MR. ARJUN PANDEY TO THE ASSESSEE OBSERVED FROM THE STATEMENT OF MR. ARJUN PANDEY THA T HE HAS RECEIVED LABOUR CHARGES ` 2,92,5OO/- ONLY AND H ENCE HE DISALLOWED THE BALANCE AMOUNT OF ` 9,65,500/-. THE OTHER DISALLOWANCES OF ` 50,O5O/- WAS MADE BY THE AO ON T HE GROUND THAT NOTICE U/S 133(6) WAS RETURNED UNSERVED . SINCE IN THE CASE OF MR. ARJUN PANDEY, THE ASSESSEE HAS M ADE ALL THE PAYMENTS BY ACCOUNT PAYEE CHEQUES AND IN SUPPOR T THE ASSESSEE HAS ALSO FILED A COPY OF BANK STATEMENT AN D COPY OF ACKNOWLEDGMENT OF RETURN OF MR. ARJUN PANDEY SHO WING THAT HE HAS RECEIVED THE PAYMENT OF ` 12,58,000/- F ROM THE ASSESSEE AND IN THE CASE OF M/S POOJA EARTH MOVERS, THE ASSESSEE HAS FILED. COPY OF BILLS ALONG WITH THE BA NK STATEMENT SHOWING THAT THE PAYMENT WAS MADE BY ASSE SSEE BY ACCOUNT PAYEE CHEQUE, THEREFORE, WE ARE OF THE V IEW THAT THE ASSESSEE HAS DISCHARGED HIS ONUS AND IN THE ABS ENCE OF ANY MATERIAL PLACED ON RECORD BY THE REVENUE TO SHO W THAT THE EVIDENCE FILLED BY THE ASSESSEE IS CONTRARY TO THE FACTS FOUND BY THE AO, WE ARE OF THE VIEW THAT THE LD. CI T(A) WAS FULLY JUSTIFIED IN DELETING THE ADDITION MADE BY TH E AD. WE WHILE UPHOLDING THE ORDER PASSED BY THE LD. CIT(A) REJECT THE GROUNDS TAKEN BY THE REVENUE. 4. THE PAYMENT IN QUESTION HAS BEEN MADE TO THE SAM E PARTY NAMELY MR. ARJUN PANDEY AS IN THE CASE OF ASSESSMEN T YEAR 2007-08. ACCORDINGLY FOLLOWING THE EARLIER ORDER OF THIS TRI BUNAL WE DECIDE THIS ISSUE AGAINST THE REVENUE IN FAVOUR OF THE ASSESSEE . THE ORDER OF THE CIT(A) QUA THIS ISSUE UPHELD. ITA NO. 2447/M/2012 RAMESH CHHEDA 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF AUGUST 2013 ' 1 - /0& ! 2 3'%4 14 TH 5#. 0 - 5 SD/- SD/- ( . ) ! '# (D. KARUNAKAR RAO) ACCOUNTANT MEMBER ( ) $ '# (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 14 TH AUGUST 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI