M/S. RAKESH KUMAR JAIN, CHAMPA (CG) V. ITO, WARD- 2(2), BILASPUR(CG)

ITA 26/BIL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0208 (ITAT-RAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D.K. JAIN
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 40(a)(ia); 192

Judgement Text

1 ITA NO. 26/RPR/2015. IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO.26/RPR/2015 ASSESSMENT YEAR : 20 06 - 07. M/S RAKESH KUMAR JAIN, THE INCOME - TAX OFFICER, AKALTARA, DIST. JANJGIR - CHAMPA. VS. WARD - 2(2), BILASPUR. PAN AAEEJ7046F. APPELLANT. RESPONDENT. APPELLANT BY : SHRI R.B. DOSHI. RESPONDENT BY : SHRI D.K. JAIN. DATE OF HEAR ING : 20 - 10 - 2016 DATE OF PRONOUNCEMENT : 4 TH NOV.2016. O R D E R. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS), BILASPUR DATED 28 - 08 - 2014 AND PERTAINS TO ASSESSMENT YEAR 2006 - 07. THE GROUNDS OF APPEAL READ AS UNDER : 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING ACTION OF ASSESSING OFFICER IN INITIATING REASSESSMENT PROCEEDINGS ON THE BASIS OF REASONS RECORDED U/S 148(2) MERELY ON THE BASIS OF CHANGE OF OPINION ON SAME SET OF MATERIALS AFTER 4 YEARS DESPITE OF ALL MATERIAL FACTS WERE TRULY AND FULLY DISCLOSED AT THE TIME OF ORIGINAL ASSESSMENT PROCEEDINGS. 2. WITHOUT PREJUDICE TO GROUND NO. 1 IN THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED COMMISSION ER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING DISALLOWANCE OF RS.2,65,200/ - MADE BY ASSESSING OFFICER OUT OF CRUSHING CHARGES BY INVOKING PROVISION OF SECTION 40(A)(IA) IN SPITE OF THE FACT THAT NO AMOUNT WAS PAYABLE AS AT THE END OF RELEVANT PREVIOUS YEA R IN RESPECT OF SAID SUM. 2 ITA NO. 26/RPR/2015. 2. APROPOS ISSUE ON MERITS: THE ISSUE IN DISPUTE IS A DISALLOWANCE OF RS. 2,65,200/ - MADE BY THE AO OUT OF CRUSHING CHARGES BY INVOKING THE PROVISIONS OF SECTION 40(A)(IA) INSPITE OF THE FACT THAT NO AMOUNT WAS PAYABLE AS AT THE END OF THE RELEVANT PREVIOUS YEAR IN RESPECT OF THE SAID SUM. 3. HAVING HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS I FIND THAT THERE ARE CONFLICTING DECISIONS OF HONBLE HIGH COURTS ON THIS ISSUE. BUT NO DECISION OF HONBLE JURISDICTIONAL HIGH COURT H AS BEEN BROUGHT TO MY NOTICE. IN SUCH CIRCUMSTANCES THE DECISION OF HONBLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. 88 ITR 192 WILL APPLY. IN THIS DECISION THE HONBLE APEX COURT HAS EXPOUNDED THAT IF THERE ARE TWO CONSTRUCTIONS POSSIBL E, ONE IN FAVOUR OF THE ASSESSEE SHOULD BE ADOPTED. IN THIS REGARD I FIND THAT THE HONBLE ALLAHABD HIGH COURT IN THE CASE OF VECTOR SHIPPING SERVICES 357 ITR 642 HAS TAKEN A VIEW THAT SECTION 40(A)(IA) CAN BE INVOKED ONLY IF THE AMOUNTS ARE PAYABLE, SLP AGAINST WHICH HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT IN CC NO. 8068/2014 VIDE ORDER DATED 02 - 07 - 2014. HENCE RESPECTFULLY FOLLOWING THE ABOVE DECISION I HOLD THAT SINCE THE AMOUNT INVOLVED HAS BEEN PAID AND NOTHING IS PAYABLE, THE AMOUNT CANNOT BE DISALLOWED U/S 40(A)(IA). HENCE I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. SINCE THE ISSUE ON MERITS HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THE ADJUDICATION ON THE GROUND RELATING TO INI TIATION OF REASSESSMENT 3 ITA NO. 26/RPR/2015. PROCEEDINGS IS ONLY OF ACADEMIC IN NATURE. HENCE I AM NOT ENGAGING INTO THE SAME. 5. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON THIS 4 TH DAY OF NOV., 2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. DATED: 4 TH NOV., 2016. COPY FORWARDED TO : 1. M/S RAKESH KUMAR JAIN, RAILWAY CONTRACTOR , AKALTARA, DIST. JANJGIR - CHAMPA. . 2. I.T.O., WARD - 2(2), BILASPUR. 3. C.I.T., BILASPUR . 4. CIT(APPEALS), BILASPUR. 5. D.R., ITAT, RAIPUR. 6. GUARD FILE TRUE COPY. BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.