Shri Deepak Hanmant Pawar, Satara V. ITO, Satara

ITA 2449/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79792 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-04-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: S N DOSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.2449/PN/2012 (A.Y: 2009-10) SHRI DEEPAK HANMANT PAWAR 184, VYANKATPURA, PETH SATARA. PAN: AAYPP8419J APPELLANT VS. ITO, SATARA CIRCLE RESPONDENT APPELLANT BY : SHRI S.N. D OSHI RESPONDENT BY : SHRI P.L . PATHADE DATE OF HEARING: 28.04.2014 DATE OF ORDER : 30.04.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-III, [IN SHO RT CIT(A)] PUNE, DATED 26.11.2012 FOR A.Y. 2009-10 ON THE FOLL OWING GROUNDS. 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CASE TH E LD CIT(A) HAS ERRED IN NOT RESPECTFULLY FOLLOWING THE DECISIO N OF THE SPECIAL BENCH OF VISHAKHAPATNAM TRIBUNAL IN THE CASE OF M/S . MERILYN SHIPPING AND TRANSPORT 136 ITD 23 AND HE HAS FURT HER ERRED IN RELYING ON OTHER DECISIONS INCLUDING THE DECISIO N OF KERALA HIGH COURT IN THE CASE OF RAJA & CO. 335 ITR 381, THE FACTS OF ALL THESE DECISIONS ARE DISTINGUISHABLE. 2. THE ABOVE GROUND OF APPEAL MAY KINDLY BE ALLOWED TO BE AMENDED, ALTERED, MODIFIED, ETC. IN THE INTEREST OF JUSTICE. 2 2. THE FACTS OF THE CASE AS EMERGING FROM THE RECOR DS ARE THAT THE ASSESSEE IS STATED TO HAVE SET UP A WIND POWER GENERATION UNIT. THE ASSESSING OFFICER OBSERVED THAT THERE WA S A DELAY IN DEPOSIT OF TAX DEDUCTED AT SOURCE ON CERTAIN PAYMEN TS MADE DURING THE YEAR UNDER CONSIDERATION, DETAILS OF WHI CH WERE FURNISHED BY THE ASSESSING OFFICER IN THE ASSESSMEN T ORDER AS UNDER: SR. NO. NAME OF PARTY NATURE OF PAYMENT DATE OF PAYMENT PAYMENT IN RS. TAX DEDUCTED DATE OF DEPOSIT 1 MALAI DEVI EARTHMOVERS CIVIL CONTRACTOR 01/04/08 27225 561 03/02/10 22/01/09 20573 424 03/02/10 2 MANOJ CONSTRUCTION AND EARTHMOVERS; CIVIL CONTRACTOR 02/05/08 1986019 20546 03/02/10 3 MASS (SHIVSHANKAR) EARTHMOVERS CIVIL CONTRACTOR 01/06/08 265578 54708 03/02/10 30/09/08 248640 5122 03/02/10 01/11/08 111090 2288 03/02/10 21/11/08 58100 1197 03/02/10 4 VISHAL STEEL WORKS FABRICATION SUB-CONTR 09/09/08 61359 632 03/02/10 5 H.P. MOHITE CIVIL CONTRACTOR 10/09/08 667880 13758 03/02/10 TOTAL 5836614 99390 3. THE ASSESSING OFFICER NOTED THAT THOUGH TAX WAS DEDUCTED OUT OF THE ABOVE PAYMENTS, THE SAME WERE NOT DEPOSI TED TILL THE DUE DATE FOR FILING OF RETURN FOR THE ASSESSMENT YE AR UNDER CONSIDERATION. THUS, THE ASSESSING OFFICER HELD THA T THE IMPUGNED EXPENDITURE AMOUNTING TO 58,36,614/- COULD NOT BE CLAIMED AS DEDUCTION WHILE COMPUTING THE TAXABLE IN COME, IN THE LIGHT OF THE PROVISIONS OF SEC.40(A)(IA) OF THE I.T . ACT. ACCORDINGLY, THE DEDUCTION CLAIMED FOR EXPENDITURE OF 58,36,614/- WAS DISALLOWED BY THE ASSESSING OFFICER FOR CONTRAVENTI ON OF THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ADDED BA CK TO THE INCOME OF ASSESSEE. THE MATTER WAS CARRIED BEFORE FIRST A PPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAI SED ON BEHALF OF ASSESSEE. HAVING CONSIDERED THE SAME, THE CIT(A ) HAS CONFIRMED THE SAME. THE SAME HAS BEEN OPPOSED BEFO RE US ON 3 BEHALF OF ASSESSEE. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF CIT(A) ON THE ISSUE. 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MA TERIAL ON RECORD, WE FIND THAT THE PROVISIONS OF SECTION 40(A )(IA) ARE APPLICABLE TO THE AMOUNTS WHICH BECAME PAYABLE AT A NY TIME DURING THE RELEVANT PREVIOUS YEAR AND WAS ACTUALLY PAID DURING THE YEAR AS WELL AS SHOWN AS PAYABLE IN BOOKS OF AC COUNTS AND PAYMENTS ARE NOT DEDUCTABLE FROM THE INCOME IF TAX IS NOT DEDUCTED AT SOURCE THEREON AS REQUIRED UNDER CHAPTE R XVII-B OR AFTER DEDUCTION HAS NOT BEEN PAID BEFORE SPECIFIED DATE IN THE CASE BEFORE US. IT IS NOT IN DISPUTE THAT THE TAX DEDUCTED AT SOURCE FROM THE PAYMENTS IN QUESTION DURING THE YEA R BUT NOT REMITTED TO GOVERNMENT ACCOUNT ON OR BEFORE SPECIFI ED DATE AND THEREBY, THE PROVISIONS OF SECTION 40(A)(IA) WERE A TTRACTED. ACCORDINGLY, THE CLAIM OF THE ASSESSEE THAT THE PRO VISIONS OF SECTION 40(A)(IA) ARE APPLICABLE ONLY IF THE SAID A MOUNT WAS PAYABLE AND OUTSTANDING AS ON 31 ST MARCH OF THE RELEVANT YEAR IS NOT LEGALLY TENABLE, THEREFORE, THE CIT(A) RIGHTLY HELD THAT THE ASSESSING OFFICER WAS RIGHTLY DEDUCTED THE CLAIM OF ASSESSEE, CONSEQUENTLY, DISALLOWANCE OF 58,36,614/- MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SEC TION 40(A)(IA), WAS RIGHTLY UPHELD BY THE CIT(A). THIS VIEW IS FOR TIFIED BY THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF CIT VS . SIKANDERKHAN N. TUNWAR (2013) 357 ITR 312 (GUJ) AND HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF CIT VS. CRESC ENT EXPORT SYNDICATE 216 TAXMAN 258. IN VIEW OF ABOVE FACTUAL AND LEGAL BACKGROUND, WE ARE NOT INCLINED TO INTERFERE WITH T HE FINDING OF CIT(A), WHO HAS RIGHTLY CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER THE PROVISIONS OF SECTION 4 0(A)(IA) OF THE ACT. WE UPHOLD THE SAME. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. 4 PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 30 TH OF APRIL, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH APRIL, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-III, PUNE 4) THE CIT-III, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE