Expert Auto Engg.Works, Himatnagar V. The Income tax Officer,S.K.Ward-3, Himatnagar

ITA 263/AHD/2008

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9857 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-09-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 23-01-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: S N DIVATIA
• Keywords: Retrospective amendment; TDS; Set aside
• Section: 271(1)(c); 40(a)(ia)

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 AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH A AA A BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI BHAVNESH BHAVNESH BHAVNESH BHAVNESH SAINI SAINI SAINI SAINI, , , , JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER AND AND AND AND SHRI SHRI SHRI SHRI N.S.SAINI N.S.SAINI N.S.SAINI N.S.SAINI, , , , ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER DATE OF HEARING :30-9-10 DRAFTED ON:30-9-10 ITA NO. 263/ AHD/ 2008 AND 1298/AHD/20 1 0 ASSESSMENT YEAR : 2005-06 M/S.EXPERT AUTO ENG. WORKS., MOTIPURA CIRCLE, HIMATNAGAR. VS. INCOME TAX OFFICER, S.K.WARD-3, HIMATNAGAR. PAN/GIR NO. : AABFE 2624F (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S.N. DIVATIA. RESPONDENT BY: SHRI R.K. DHAN ESTA, D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI , ACCOUNTANT MEMBER :- THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -X, AHMEDABAD, DATED 22-11-2007 AND 21-12-2009 2. THE GROUND NO.4 TAKEN BY THE ASSESSEE IN APPEAL NO.ITA 263/AHD/08 READS AS UNDER:- 4. THE APPELLANT REQUESTS THAT THE DISMISSAL APPEA L BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPE ALS) WAS DUE TO NON-ATTENDANCE OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE OF THE APPELLANT AND THEREFORE AN OPPORTUNITY MAY BE GRANTED TO THE APPE LLANT FOR PROVING THE GENUINENESS OF THE CASH CREDIT. 3. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT THE CHARTERED ACCOUNTANT SHRI M.K. P ATEL COULD NOT APPEAR ON THE DATE FIXED FOR HEARING BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS HE WAS BUSY WITH THE MEE TINGS OF THE COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTANTS. HE SUBMITTED - 2 - THAT ADDITIONS HAVE BEEN MADE BY THE LEARNED ASSESS ING OFFICER ON ACCOUNT OF NON GENUINE CASH CREDIT `.1,55,000/- AND ON ACCOUNT OF LATE DEDUCTION OF TDS ON `.7,20,721/-. HE SUBMITTED THAT THERE HAS BEEN A RETROSPECTIVE AMENDMENT IN SECTION 40(A)(IA) OF THE ACT AND THE MATER HAS TO BE LOOKED FROM THE ANGLE OF AM ENDMENT MADE. AS REGARDS THE CASH CREDITS THE CONFIRMATION S WERE FILED AND THE SAME WERE TO BE CONSIDERED FOR DECIDING THE SAM E. HE THEREFORE, PRAYED THAT ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAD NO O BJECTION TO THE ABOVE SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS THE ASSESSEE FAILED TO APPEAR ON T HE VARIOUS DATES FIXED FOR HEARING. THE LEARNED AUTHORISED REPRESEN TATIVE OF THE ASSESSEE HAS SUBMITTED THAT SHRI M.K. PATEL, CHARTE RED ACCOUNTANT WHO WAS ENTRUSTED WITH THE APPEAL COULD NOT APPEAR DUE TO HIS PREOCCUPATION WITH THE MEETINGS OF THE COUNCIL OF I NSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA. HE HAS GIVEN AN UND ERTAKING IN THE COURT THAT IF ONE MORE OPPORTUNITY IS GRANTED TO A PPEAR BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEN H E UNDERTAKES TO APPEAR BEFORE THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) FOR HEARING OF HIS APPEAL. IN THE AB OVE FACTS AND CIRCUMSTANCES, IN OUR CONSIDERED OPINION TO MEET TH E ENDS OF JUSTICE ONE MORE OPPORTUNITY NEEDS TO BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, WE ALSO FIND THAT EIGHT OPPORTU NITIES OF HEARING WERE GRANTED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) TO THE ASSESSEE WHICH WAS NOT AVAILED BY THE ASSESSEE. THEREFORE, THE ASSESSEE DESERVES TO BE MADE LIABLE TO COST. THE - 3 - LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE A GREED IN THE COURT FOR PAYMENT OF COST OF `.5,000/-. FURTHER, TH E LEARNED DEPARTMENTAL REPRESENTATIVE ALSO HAS NO OBJECTION I N RESTORING THESE APPEALS TO THE FILE OF THE LEARNED ASSESSING OFFICER. THEREFORE, WE DIRECT THE ASSESSEE TO DEPOSIT COST O F `.5,000/- WITHIN ONE MONTH FROM THE PRONOUNCEMENT OF THIS ORDER AND FILE EVIDENCE OF THE SAME TO THIS TRIBUNAL. THE ORDER OF THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) IS SET ASIDE A ND THE APPEAL IN APPEAL NO.263/AHD/2008 IS RESTORED BACK TO HIS F ILE FOR FRESH ADJUDICATION AFTER ALLOWING PROPER OPPORTUNITY TO B OTH THE PARTIES. THE ASSESSEE IS DIRECTED TO APPEAR SUOMOTO WITHIN O NE MONTH FROM THE DATE OF PRONOUNCEMENT OF THIS ORDER BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR FIXATION O F THE APPEAL FOR HEARING. THE ASSESSEE IS FURTHER DIRECTED TO FILE ALL DETAILS AND DOCUMENTS PROMPTLY BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AS AND WHEN CALLED UPON TO DO SO. AS WE HAVE RESTORED QUANTUM APPEAL BACK TO THE FILE OF THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) THE APPEAL FOR LEVY OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT IN ITA NO.1298/AHD/10 IS ALSO RESTORED BACK TO THE FILE OF THE CIT(A) FOR FR ESH ADJUDICATION IN LIGHT OF THE DECISION TAKEN IN THE QUANTUM APPEAL O F THE ASSESSEE. WITH THESE DIRECTIONS THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 30 TH DAY OF SEPTEMBER, 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER A CCOUNTANT MEMBER AHMEDABAD: ON THIS 30 TH DAY OF SEPTEMBER, 2010 COMPILED AND COMPARED BY: PATKI - 4 - COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-X, AHMEDABAD. 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 30-9-2010 --------------- -- 2. DRAFT PLACED BEFORE AUTHORITY 30-9-2010 ------ ---------- 3. DRAFT PROPOSED & PLACED 30-9-2010 ----------- ------JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 30-9-2010 ---------- ------JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- -------------- 6. KEPT FOR PRONOUNCEMENT ON ---------------- -- -------------- 7. FILE SENT TO THE BENCH CLERK -------- -------- ---------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- ---------------- 9. DATE OF DISPATCH OF ORDER ----------- ----- ----------------