The ITO, Ward-9(2), Ahmedabad V. M/s. Shri Gajanand Labour Contractor, Ahmedabad

ITA 2560/AHD/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 2173 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-02-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 26-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N C AMIN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.2560/AHD/2010 A. Y.: 2007-08 THE INCOME TAX OFFICER, WARD- 9(2), 1 ST FLOOR, A-BLOCK, OPP. POLYTECHNIC, AMBAWADI, AHMEDABAD VS M/S. SHRI GAJANAND LABOUR CONTRACTOR, AT. MODASAR, POST- SANAND, VAVLA ROAD, VAVLA, AHMEDABAD PA NO. AAXFS 7607 N (APPELLANT) (RESPONDENT) C. O. NO.302/AHD/2010 (IN ITA NO.2560/AHD/2010: Y.: 2007-08) M/S. SHRI GAJANAND LABOUR CONTRACTOR, AT. MODASAR, POST- SANAND, VAVLA ROAD, VAVLA, AHMEDABAD VS THE INCOME TAX OFFICER, WARD- 9(2), 1 ST FLOOR, A-BLOCK, OPP. POLYTECHNIC, AMBAWADI, AHMEDABAD PA NO. AAXFS 7607 N (CROSS OBJECTOR) (RESPONDENT) DEPARTMENT BY SHRI K. MADHUSUDAN, SR. DR ASSESSEE BY SHRI N. C. AMIN, AR O R D E R PER BHAVNESH SAINI: THE DEPARTMENTAL APPEAL IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-XV, AHMEDAB AD DATED 28 TH JUNE,2010 FOR ASSESSMENT YEAR 2007-08, ON THE FOLLO WING GROUNDS: 1. THE LD. COMMISSIONER OF INCOME-TAX (A)-XV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCE OF RS.11,75,728/- MADE BY THE ASSESSING OFFICER U/S. 40 (A) (IA) OF THE I. T. ACT. ITA NO.2560/AHD/2010 AND CO NO.302/AHD/10 M/S. GAJANAND LABOUR CONTRACTOR 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A)-XV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 2. THE CROSS OBJECTION BY THE ASSESSEE WAS FILED IN SUPPORT OF THE ORDER OF THE LEARNED CIT(A) WHICH IS WITHDRAWN. THE CROSS OBJECTION IS ACCORDINGLY DISMISSED AS WITHDRAWN. 3. THE AO ON THE ABOVE ISSUE IN THE DEPARTMENTAL AP PEAL NOTED THAT THE ASSESSEE HAS DEBITED AN AMOUNT OF RS.11,75 ,278/- TOWARDS SUB-CONTRACT EXPENSES WHICH MEANS THE ASSESSEE WAS LIABLE TO DEDUCT TDS. THE REPLY OF THE ASSESSEE WAS CALLED FO R. NO DETAILS WERE PRODUCED AS WELL AS THE ASSESSEE DID NOT RESPO ND TO THE SHOW CAUSE. THE AO, THEREFORE, NOTED THAT THE ASSESSEE B EING A FIRM AND ITS NATURE OF BUSINESS WAS SUPPLY OF LABOUR ON WHIC H IT HAS CLAIMED SUB-CONTRACT EXPENSES. THEREFORE, THE ASSESSEE HAS TO DEDUCT TDS ON THE PAYMENTS MADE TO THE SUB-CONTRACTORS. THEREF ORE, PROVISIONS OF SECTION 194( C ) OF THE IT ACT WILL APPLY AND AC CORDINGLY PROVISIONS OF SECTION 40 (A) (IA) OF THE IT ACT ATTRACTED AND THE AMOUNT WAS ACCORDINGLY DISALLOWED. THE LEARNED CIT(A) CONSIDER ING THE EXPLANATION OF THE ASSESSEE DELETED THE ADDITION. 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LEARNED CIT(A). THE AO SPECIFICALLY NOTED IN THE ASSESSMENT ORDER THAT NO DETAILS WERE PRODUCED WITH REGARD TO THE TDS CERTIFICATES ON THE ABOVE ISSUE AND THAT THE ASSESSEE HAS NOT RESPONDED TO THE SHOW CAU SE NOTICE ISSUED IN THIS REGARD. THE LEARNED DR, THEREFORE, CONTENDE D THAT THE ASSESSEE HAS TAKEN A DIFFERENT STAND BEFORE THE LEA RNED CIT(A) AND ITA NO.2560/AHD/2010 AND CO NO.302/AHD/10 M/S. GAJANAND LABOUR CONTRACTOR 3 CLAIMED THAT IT HAS PAID THE SALARY WHICH PLEA WAS NEVER TAKEN BEFORE THE AO. THE LEARNED DR, THEREFORE, CONTENDED THAT T HE LEARNED CIT(A) WITHOUT VERIFYING THE FACTS AND WITHOUT GIVI NG OPPORTUNITY TO THE AO DELETED THE ADDITION BY PASSING A NON-SPEAKING O RDER. WE AGREE WITH THE CONTENTION OF THE LEARNED DR THAT THE LEAR NED CIT(A) HAS NOT GIVEN ANY OPPORTUNITY TO THE AO TO EXAMINE THE WRIT TEN SUBMISSION WITH REGARD TO APPLICABILITY OF THE PROVISIONS OF S ECTION 194(C) OF THE IT ACT IN THE MATTER. MORE SO, THE LEARNED CIT(A) W ITHOUT PASSING REASONED ORDER AND WITHOUT GIVING OPPORTUNITY TO TH E AO PASSED THE IMPUGNED ORDER, THEREFORE, THE SAME CANNOT BE SUSTA INED IN LAW. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LEARNED CIT (A) AND RESTORE THIS ISSUE TO HIS FILE WITH DIRECTION TO RE-DECIDE THE S AME BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THE AO. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS ALLOW ED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED BEING NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 -02-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 04-02-2011 LAKSHMIKANT/- ITA NO.2560/AHD/2010 AND CO NO.302/AHD/10 M/S. GAJANAND LABOUR CONTRACTOR 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD