The ITO, Ward-9(4), Ahmedabad V. Shri Ishaqkhan B.Mohmmad, Ahmedabad

ITA 2688/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1068 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 30-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: S H RI PRAMOD KUMAR , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER ISHAQKHAN B. MOHMMED, B - 110, SILVER COMPLEX, OPP. SHAHWADI BUS STAND, NAROL, AHMEDABAD - 382405, PAN: AKCPM5906D (APPELLANT) VS THE ITO, WARD - 9(4), AHMEDABAD (RESPONDENT) REVENUE BY : S H RI SANJAY KUMAR , SR. D . R . ASSESSEE BY: NONE DATE OF HEARING : 12 - 07 - 2 016 DATE OF PRONOUNCEMENT : 26 - 07 - 2 016 / ORDER P ER : S. S. GODARA , JUDICIAL MEMBER : - THE REVENUE AND ASS ESSEE HAVE PREFERRED THE INSTANT CROSS APPEALS FOR A.Y. 2009 - 10 AGAINST ORDER DATED 26 - 09 - 2012 PASSED BY THE CIT(A), AHMEDABA D IN CASE APPEAL NO. CIT(A) - XV/9( 4 )/319/11 - 12 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO S . 2688 & 2831 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 I.T.A NO S . 2688 & 2831 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ISHAQKHAN B. MOMMED VS. ITO 2 2. CASE CALLED TWICE. NONE APPEARS AT ASSESSEE S BEHEST. A PERUSAL OF THE CASE FILE REVEALS THAT THE REVENUE HAS ALREADY AFFIXED HEARING NOTICE AT ASSESSEE S LAST KNOWN ADDRESS AT NAROL, AHMEDABAD ON 13 - 06 - 2016 IN PRESENCE OF TW O WITNESSES. THE RELE VANT AFFIX TURE PANCHNAMA C ONTAINING THEIR SIGNATURES FORM PART OF THE CASE RECORD. WE PROCEED EX - PARTE AGAINST THE ASSESSEE IN REVENUE S APPEAL ITA 2688/AHD/2012. OTHER CROSS APPEAL ITA 2831/AHD/2012 IS DISMISSED FOR NO N - PROSECUTION IN VIEW OF IN VIEW O F HON'BLE MADHYA PRADESH HIGH COURT DECISION I N ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (1997) 223 ITR 480 (M.P.) AND THAT OF TRIBUNAL IN CIT VS. MULTIPLAN INDIA (PVT.) LTD., 38 ITD 320 (DELHI) . 3. WE COME TO THE REVENUE S APPEAL ITA 2688/A HD/2012 NOW . ITS SOLITARY SUBSTAN T I VE GRIEVANCE CHALLENGES THE LOWER APPELLATE ORDER DELETING SECTION 40(A)(IA) DISALLOWANCE OF RS. 3,46,18,690/ - MADE BY THE ASSESSING OFFICER IN ASSESSMENT ORDER DATED 22 - 11 - 2011 ON ACCOUNT OF ASSESSEE S FAILURE IN DEDUCTING TDS ON FREIGHT PAYMENT EXPENSES. THE CIT(A) QUOTES SPECIAL BENCH DECISION OF THIS TRIBUNAL IN MERILLYN SHIPPING AND TRANSPORT COMPANY CASE 136 ITD 23 (VISHAKHAT) TO CONCLUDE THAT THE IMPUGNED SECTION 40(A)(IA) DISALLOWANCE IS TO BE MADE ONLY IN RESPECT OF THE R ELEVANT AMOUNT PAYABLE AS ON 31 ST MARCH OF THE RELEVANT PREVIOUS YEAR AND NOT IN CASE OF THOSE ALREADY PAID. I.T.A NO S . 2688 & 2831 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ISHAQKHAN B. MOMMED VS. ITO 3 4. WE HAVE HEARD SHRI SANJEEV KUMAR, LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE APPEARING AT REVENUE S BEHEST. HE QUOTES HON BLE JURISDICTIONA L HIGH COURT DECISION IN CASE OF CIT VS. SIKANDAR KHAN TUNVAR (2013) TAXMANN.COM 133 (GUJ) REVERSING THE SPECIAL BENCH DECISION ABOVE SAID TO HOLD THAT SECTION 40(A)(IA) APPLIES QUA THE CORRESPONDING AMOUNTS PAID AS WELL WITHOUT DEDUCTING TDS. WE FOLLOW T HE SAME TO REVERSE THE CIT(A) S FINDING UNDER CHALLENGES. THE REVENUE SUCCEEDS IN ITS SOLE SUBSTANTIVE GROUND AS PER HON BLE JURISDICTIONAL HIGH COURT DECISION. ITA 2688/AHD/2012 IS ACCEPTED. 5. REVENUE S APPEAL IT A 2688/AHD/2012 IS ALLOWED. AS SESSE E S APPEAL ITA 2831/AHD/2012 IS DISMISSED FOR NON - PROSECUTION. ORDER PR ONOUNCED IN THE OPEN C OURT ON 26 - 07 - 201 6 SD/ - SD/ - ( PRAMOD KUMAR ) ( S. S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 26 /07 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , I.T.A NO S . 2688 & 2831 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ISHAQKHAN B. MOMMED VS. ITO 4 / ,